What is residency obligation
To maintain permanent resident status, people must reside in Canada for a minimum of 730 days within every 5 years. This is called a residency obligation.
A breach of this obligation may result in a loss of permanent resident status.
Exemptions to residency obligation
There are some exemptions to the residency obligation.
1. You are a full-time employee assigned outside Canada for a Canadian business or organization.
2. You live outside Canada with your Canadian spouse, common-law partner, or parent.
3. You live outside Canada with your permanent resident spouse, common-law partner, or parent who is a full-time employee assigned outside Canada for a Canadian business or organization.
Please note that if you are accompanying your parent, this exception applies when you are less than 22 years of age.
What is a residency obligation appeal and when does it happen
A breach of residency obligation may occur either in or outside Canada.
If this happens when you are outside Canada, you may be eligible to appeal it to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).
The appeal determines whether you have always maintained your residency obligation, or whether you have humanitarian reasons that justify your return to Canada.
If you are in Canada, you will receive a removal order. You must instead follow the removal order appeal procedure if you want to appeal it.
Who has the right to appeal
Any permanent resident of Canada who has breached this obligation has the right to appeal.
What is a residency obligation appeal like
The residency obligation appeal is similar to a hearing in court. A decision-maker will preside during the hearing.
You and your representative, if applicable, will need to attend the hearing. The opposing party, Immigration, Refugees and Citizenship Canada (IRCC), may also attend.
You will have a chance to speak to the decision-maker, present your case, call witnesses, question evidence/witness, make submissions, etc.
The hearing only takes place in Canada. However, you may participate in the hearing via telephone or video conference.
Who must prove the case
You must prove you have always maintained your residency obligation or present humanitarian reasons that justify your return to Canada.
Please note that if IRCC attends the hearing, they will present their case. If they do not attend, they will provide a written submission. Therefore, it might be necessary that you prepare for your response to their submissions.
Residency obligation appeal and humanitarian and compassionate consideration
The IAD of IRB has the power to consider your humanitarian and compassionate (H&C) grounds.
Some of the H&C grounds may include:
1. Establishment in Canada.
2. Ties to Canada.
3. The hardship if not allowed to return to Canada.
4. The best interest of the child.
You shall present all of your H&C grounds. If the decision-maker grants you H&C consideration, you will retain your permanent resident status.
Possible outcomes of a residency obligation appeal
If you are successful in your case, the decision-maker will confirm you retain your permanent resident status.
The decision-maker may also dismiss your appeal if you cannot prove your case
How to start a residency obligation appeal
You must send a Notice of Appeal (NOA) to the IAD of the IRB within 60 days after you receive the removal order.
WHAT WE CAN DO TO HELP YOU
We personalize our services for you based on the information and circumstances of your case, which may include any of the followings:
1. Review and calculate your physical presence in Canada,
2. Assist you in identifying residency obligation exemptions, if any,
3. Help you identify your H&C grounds, if any,
4. Review the IRB file and any supporting documents you may have,
5. Help you gather the evidence. If evidence is not available, we will provide you with advice as to how to preserve it,
6. Interview your witness(es) for the hearing, if applicable,
7. Provide other advice, legal opinions, and instructions as needed, and
8. Act as your representative for the IRB procedure, including but not limited to communicate with the IRB, provide submissions, attend the hearing and any pre-hearing conferences, etc.
Book an appointment for an initial assessment today or contact us directly.
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