If you have permanent resident status in Canada and are leaving Canada, whether it is for a vacation, to visit family, for work, or for any other reason, it is important for you to consider whether that time spent outside the country could affect your permanent resident status, or whether it could delay a future application for Canadian citizenship. Permanent residence and citizenship applications each have different requirements under which a person must spend a certain amount of time living inside Canada. Read on for a description of what those requirements are.
Permanent residence gives many of the same benefits citizens get. A permanent resident can normally enter and leave Canada freely. However, unlike citizens, a permanent resident has to be inside Canada for 730 days (two years) in every period of five years. Those 730 days do not have to be next to each other. If a permanent resident doesn’t follow this rule, immigration officials can and do take steps to remove that immigration status, and it can result in a person being removed from an unable to return to Canada. In many circumstances, it is difficult or impossible to get that permanent residence back.
In most cases, the only way to meet this residency requirement is to actually be physically inside Canada for the required 730 day period. A person cannot count the days spent outside of Canada even if they have a home in Canada, or if they file Canadian taxes during that period, and there is no exception or grace period for a permanent resident who is attending school outside of Canada, even if other members of their family remain in Canada.
Other than being in Canada, there are three other ways to accumulate the required days. A permanent resident can count days outside of Canada while accompanying their spouse or common-law partner, if that spouse or partner is a Canadian citizen. A child can count the days outside Canada with their parent, if that parent is a Canadian citizen.
A permanent resident and their spouse can also count the days spent outside the country if they are out of the country working full time for a Canadian business or a Canadian government agency. However, this exception has sometimes been interpreted very strictly. In order to count, an immigration official may require that the work outside of the country be a temporary assignment rather than a permanent assignment abroad. The permanent resident must keep a connection with the Canadian employer, and the intention must be that they will continue working for that employer once they return to Canada. The business also has to be a genuine, ongoing business based in Canada. You should seek legal advice if you are planning to use the time spent working for a Canadian business outside of Canada towards your residency requirements.
Border officials may assess these residency requirements when a permanent resident returns to Canada after a trip, but they should assess only the five years ending on the day the permanent resident is returning. They will also assess residency requirements when someone is applying for a new permanent resident card. For that reason, every permanent resident should keep a record of the days they leave and enter Canada. It is also a good idea to keep copies of the plane tickets or itineraries showing entry and exit from Canada.
Immigration officials can assess residency requirements even if someone has not yet been a permanent resident for five years. For example, if a permanent resident has had status for three and a half years, and has only been in Canada for one month in that period, the official can decide that it will be impossible to meet the residency requirements, and take steps to revoke that persons’ permanent resident status. In some circumstances where a permanent resident does not meet the residency requirements, an immigration officer may still allow that person to keep their status, based on humanitarian and compassionate circumstances, which are unique circumstances where removing a person from Canada will lead to certain kinds of hardship. A permanent resident can also generally appeal a decision that they have not met residency requirements and receive a hearing, but they must make that appeal quickly, generally within 60 days of the decision. If you are in those circumstances, you should seek legal advice immediately.
In contrast, once someone becomes a Canadian citizen there are no residency requirements in order to keep that citizenship. A citizen could be out of the country for thirty years and return without issue. However, when a permanent resident is first applying for citizenship, they must show they have been in Canada for at least 1,095 days (three years) of the last five years. These residency requirements for citizenship changed on October 11, 2017 to make it easier to become a citizen.
Calculating the days for a citizenship application is a bit different than calculating the days for permanent residence. You can count one day for every day you have been in Canada as a permanent resident over the last five years. You can also count half a day for each day you were a temporary resident or a protected person over the last five years, up to a maximum of 365 days. That means that if someone gets the maximum one year credit from temporary residence, they can apply for citizenship after only two years of permanent residence. Another difference is that on a citizenship application, you do not get credit for the days spent working for a Canadian employer outside of Canada. With some exceptions, you also cannot get credit for any days spent serving a term of imprisonment, probation or parole.
Residency requirements are very important to any permanent resident who is spending time out of Canada. If you experience or expect to experience an issue with the residency requirements for permanent residence or citizenship, you should seek legal advice.
McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the April 2018 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.
