Residency requirements can be tricky business

How much time does a permanent resident have to spend in Canada in order to maintain their Canadian permanent residency status and qualify for Canadian citizenship?

On June 28, 2002, Canada’s new immigration legislation came into effect, which included a “residency obligation” requiring permanent residents to be physically present in Canada for 730 days (two years) in every five-year period. This replaced the previous rule, which required that permanent residents reside in Canada for at least 183 days (about 6 months) in each 12-month period.

A permanent resident can include in this 730-day period any time that they were:

  • outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent.
  • outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province.
  • outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province.

Our legislation also contemplates other forms of compliance being enacted.

Individuals who cannot meet this requirement because they were landed in Canada less than five years prior to their attempted re-entry can meet this requirement by proving that, if permitted re-entry, it is still mathematically possible for them to meet this obligation for the five-year period immediately following their landing.

What this means is that every time a permanent resident seeks to re-enter Canada, he may be asked to prove that he has met this residency obligation for the five-year period immediately preceding the examination.

An officer could excuse a failure to comply with this requirement if he were to find sufficient “humanitarian and compassionate” grounds.

However, if it is determined that no such grounds exist, a removal order may be issued by the immigration department or by a member of the Immigration and Refugee Board (IRB). This removal order can be appealed to the IRB’s Appeal Division.

The permanent resident can win the appeal if he can prove that he has met the residency obligation or that there are sufficient humanitarian and compassionate grounds to excuse the appellant of this requirement.

There are separate rules in Canada’s Citizenship Act relating to the acquisition of Canadian citizenship.

To qualify for citizenship a permanent resident has to accumulate 1,095 days of “residency” in Canada in the four-year period immediately preceding the application for Canadian citizenship.

The Federal Court of Canada has ruled on numerous occasions that, for the purposes of a citizenship application, “residency” does not necessarily mean “physical presence” in Canada. It can include time spent outside of Canada during a period when the applicant’s mode of living was centralized in Canada, i.e. where the applicant’s spouse, children, home, bank accounts, major assets etc. are in Canada and not abroad.

In our system, defining residency can be tricky business.