Not Meeting Residency Requirement

[Indiatown]

Hi,
My parents got their PR card in May 4th, 2013. For some personal reasons, they had go back home for couple years. The expiration date on their PR card is Jul.09.2018. On May, 4th 2018, the number of days they have physical present in Canada is about 700 days and hence won’t be able to meet 730 days requirement out of 5 years.
My question is:

• Should they apply for PR card renewal and Do they have chance to get new card.
• Will they loose the PR status on May 4th 2018? Can they stay in Canada after May 4th, 2018?
• What are their options and what should they do to maintain the PR status ?

Thanks

[SettlementOrgMod]

Hello,

Thank you for sharing your parents’ situation and question with us.

We can appreciate that you would be concerned about this situation and would be interested in finding out what your options are.

Regarding what you have stated about losing permanent residency, it is important to note that in terms of loss of permanent residency, a person does not lose it until a final determination has been made.

This means that your PR status needs to be formally removed.

You can find some information on the Immigration, Refugees and Citizenship Canada (IRCC) website, Here is an excerpt,

Losing your permanent resident status does not happen automatically. You cannot lose your permanent resident status simply by living outside of Canada long enough that you don’t meet the residency requirement. Unless you have gone through an official process, you have not lost or given up your permanent resident status, even though you may not be eligible to return to Canada as a permanent resident.
You may lose your permanent resident status if:

• an adjudicator determines that you are no longer a permanent resident following an inquiry; or- a visa officer determines you do not meet the required residency when you apply for apermanent resident travel document or temporary resident travel document.
  You may lose your permanent resident status in one of the ways described above if:

• you do not live in Canada for two out of five years;- you are convicted of a serious crime and told to leave Canada; or- you become a Canadian citizen.
  You do not lose your permanent resident status if your PR card expires.

According to the Immigration, Refugees and Citizenship Canada (IRCC) ENF 23 - Loss of Permanent Resident Status manual,

It is important to note that a permanent resident does not lose their status under A46(1)(b) until there is a final determination of the decision made outside Canada that they have failed to comply with the residency obligation under A28.

Permanent residents are not finally determined to have lost their permanent resident status until the right of appeal has been exhausted.

It also states in relation to the process of loss of permanent residency,

5. Departmental Policy

When an officer believes a permanent resident has failed to comply with their A28 residency obligation, then that officer should report the permanent resident under the provisions of A44(1) and recommend the issuing of a departure order.

The form Questionnaire: Determination of Permanent Resident Status (IMM 5511B) has been developed specifically to assist officers in making decisions regarding the permanent residency obligation, keeping in mind that the questionnaire alone is not sufficient to determine compliance with the residency obligation, and a detailed interview including examining humanitarian and compassionate criteria under A28(2)(c) is needed.

Furthermore, the officer cannot seize the person’s documents (such as the IMM 1000, Immigrant Visa and Record of Landing and the IMM 5292B, for example) despite writing an A44(1) report and issuing a removal order unless the officer believes there are reasonable grounds to do so in accordance with A140. The rationale behind this is that the person has a right to appeal the removal order and, until final determination of status, they remain a permanent resident and are the lawful owner of said documents.

Additionally, we have previously received some information from one of our legal researchers related to being in Canada after not meeting the residency requirements.

According to their research, the five-year time frame set out in the Refugee and Immigrant Protection Act is not static. Rather it is a moveable window that is dependent on the time at which a visa officer examines your situation. Therefore, if you cannot fulfill the two-year (730 day) requirement for the five-year time frame starting from when you became a permanent resident, you should remain in Canada until you can satisfy the requirement for another five-year time frame.

The IRCC’s Permanent Residency Status Determination Manual states:

For persons who have been permanent residents of Canada for more than five years, the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office. A28(2)(b)(ii) precludes a visa officer from examining any period other than the most recent five-year period immediately before the date of receipt of the application.

Since the officer cannot choose any five-year time period for consideration, but must always assess the most recent five-year time period (the one immediately preceding examination), they may still have the opportunity to satisfy the two-year “in Canada” requirement.

As you may already know, a PR card is required to re-enter Canada.

You mentioned that your parents have a PR card. It is important to note that the PR card’s expiry date has no correlation between whether or not you have met the residency requirements.

Regarding your question,

Should they apply for PR card renewal and Do they have chance to get new card.

We suggest that it is important and probably best that you and your parents speak to a Lawyer who is familiar with Canadian immigration issues for additional information regarding you and your family’s situation and before they apply to renew their PR cards.

I hope this information is helpful. Please let us know if you have further questions and if there is any follow up to your question/situation.

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Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org