What is residency obligation?
Generally speaking, if you are a permanent resident (PR), you must live in Canada for at least 730 days in every 5 years period. This is called the residency obligation. Note that you do not need to live in Canada for 730 days in a row.
You may be found in breach of this obligation while living in or outside Canada.
However, there are exceptions that allow you to maintain this obligation while living out of Canada:
Holding a full time position outside Canada with a Canadian business, federal, provincial, or territorial government.
Being a spouse, common law partner, or child of a Canadian citizen who lives outside Canada. You must also live with your spouse, partner or parent.
Being a spouse, common law partner, or child of a Canadian PR who holds a full time position outside Canada with a Canadian business, federal, provincial, or territorial government. You must also live with your spouse, partner or parent.
Further, Canadian citizens or temporary residents do not need to meet this obligation.
If you are unsure about whether you meet the obligation, we can help you.
What happens if I breach the residency obligation?
When you breach this obligation, you will lose your PR status. Further, If you are in Canada, you will receive a removal order. If you are outside Canada, you will receive a decision confirming you will lose your PR status.
Note that a PR outside Canada with an expired PR card must apply for a PR travel document (PRTD) to return to Canada. If you have breached your obligation, your PRTD will be refused.
What is residency obligation appeal?
When you are found in breach of this obligation while living outside Canada, you may have an opportunity to have the Immigration and Refugee Board (IRB) review it. This process is called residency obligation appeal.
The appeal determines whether you should be allowed to return to Canada as a PR.
Note that if you receive a removal order in Canada due to breach of this obligation, you must appeal the removal order instead. To learn more about Removal Order Appeal, please visit our Service page.
Who can appeal?
Generally speaking, every PR outside Canada who has been found in breach of residency obligation has the right to appeal.
How to appeal?
To initiate the appeal, you must send a Notice of Appeal (NOA) to the IRB’s Immigration Appeal Division (IAD) within 60 days from the date of the decision letter.
What is the Residency Obligation Appeal like?
Firstly, it is similar to a hearing in court. A penal which usually consists of one decision-maker will hear the appeal in person.
Secondly, you must attend the hearing. If you have a representative, they must also attend. The hearing is usually public.
Further, you need to prove that you should be allowed to return to Canada as a PR. You can also give statements and evidence including witnesses at the hearing.
Thirdly, the counsel of IRCC may also attend the hearing. However, if the case is straightforward, they may just send a written submission to the penal instead of attending the hearing in person.
We can also represent you at the hearing.
Last but not least, when the IRB believes your appeal may be solved without a hearing, they will ask you to attend an Alternative Dispute Resolution (ADR) conference. The ADR conference is private.
Can I return to Canada to attend the hearing?
You may be allowed to return to Canada to attend your hearing. If you have lived in Canada for at least one day during the past 365 days, you may apply for a PRTD. However, if you have not lived in Canada for the past 365 days, you may request an authorization to return to Canada from the IAD.
If you cannot return to Canada, you may still attend your hearing via telephone or videoconference.
Can I apply Humanitarian and Compassionate (H&C) grounds to my appeal?
The IAD has the power to consider H&C grounds. Therefore, it is always a good idea to present your H&C factors. Where your H&C factors are enough and strong, the IAD will allow you to retain your PR status. This means you will no longer need to directly address your residency obligation.
H&C factors include establishment in Canada, ties to Canada, hardship, best interests of children, and so forth.
To learn more about H&C, please visit our Service.
What are the possible outcomes of a Residency Obligation Appeal?
After the hearing, the IAD may allow your appeal. This means you will retain your PR status.
The IAD may also dismiss your appeal. If this is your case, you may apply for a Judicial Review if the IAD decision has an error of law or fact.
PR status and LGBT immigration
Many LGBTQ people wish to move and stay in Canada. They will want to become PRs.
However, for LGBTQ individuals who travel a lot or have homes in different countries, it is important to know and maintain your PR status. If you lose your PR status due to a breach of residency obligation, you should prepare your appeal well.
Note that if you could apply for Canadian citizenship, it is advisable to do so. Citizens do not need to meet this obligation.
Book a consultation today, we can help you with your questions.
What do we do?
We work with LGBTQ people and help with their journey to Canada. At LegalRoots, client experience is what we care about. We also create a safe and friendly place for those who wish to discuss their matters with us freely.
Book an initial assessment today or contact us directly.
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