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Permanent Residency - Not Met Requirements 

Peter De Zilwa
Peter De Zilwa
Posts: 3


Posted On: 2/11/2017
Peter De Zilwa
Peter De Zilwa
Posts: 3
Hi,
I am a permanent resident of Canada having arrived in Canada from Sri Lanka on the 3rd of January 2013.

I left Canada in the month of January 2015 and have not returned to Canada since.
I used to live with my son and family who are citizens of Canada and lived in Whitby where they subsequently moved from to Winnipeg/ Manitoba where they presently reside at.
My son is married to a Canadian citizen from birth and have two kids both also born in Canada.
I intend re entering Canada to join my Son and family and also pursue with my PR and probable citizenship and would like to know as to what my predicament would be.
An early response will be greatly appreciated.
Thank You!
Sincerely
Peter
link
Moderator
Moderator
Moderator
Posts: 2110


Posted On: 2/13/2017
Moderator
Moderator
Moderator
Posts: 2110
Hello Peter,

Thank you for sharing your situation and question with us.

If you are concerned about meeting your residency requirements, according to the Immigration Refugee and Citizenship Canada (IRCC) (formerly CIC) you must live in Canada for "at least 2 years in a 5 year period" to maintain your status:

When you are a permanent resident, you can live outside of Canada, but must live in Canada for at least two years in a five-year period. If you live outside of Canada for longer, you may lose your permanent resident status.

For more information on how long you have to live in Canada, see Appendix A: Residency obligation of the PR card application package.


You may find our article What are the residency requirements for permanent residents (PRs)? for some additional information. Here is an excerpt:

To meet these residency obligations, you must be physically present in Canada for at least 730 days (2 years) in every 5-year period.

This means that you can spend a total of up to 3 years outside of Canada during a 5-year period.

However, if you leave the country for an extended period of time, it is up to you to prove to Citizenship and Immigration Canada that you will be able to meet your residency requirements.[...]If you know that you will be out of the country for an extended period of time it is very important that you contact Citizenship and Immigration Canada and let them know that you will be returning. Citizenship and Immigration Canada no longer issues Returning Resident Permits.


In terms of returning to Canada you can find some information on the Immigration, Refugees and Citizenship Canada (IRCC) website in the Leaving/Returning to Canada section.

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.

=====
Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
link
Peter De Zilwa
Peter De Zilwa
Posts: 3


Posted On: 2/13/2017
Peter De Zilwa
Peter De Zilwa
Posts: 3
Hi Anna,
It was really kind and nice of you to respond to my query and so spontaneously. I thank you very much for same. I guess you have answered all my questions and by the looks I may have missed out on returning to Canada although my spouse and members of my family continue to live there.
The reason for me leaving Canada was the fact that I was a bit frustrated with not being able to find a suitable job and was often told that I was over experienced for most job interviews I attended.
Then there was my daughter who is domicile in Australia conceiving for her 1st born and this urged me to go to Australia and spend some time with her and her family. There were other personal reasons and commitments for not getting back during the stipulated time frames but I will not bore you with this..

Now with regard to my re-entering Canada,if I am to make an appeal to authorities with regard to this, how do I get about it.
For example whom do I contact. A link or contact will be appreciated.
Thank you!
Peter

Moderator wrote:
Hello Peter,

Thank you for sharing your situation and question with us.

If you are concerned about meeting your residency requirements, according to the Immigration Refugee and Citizenship Canada (IRCC) (formerly CIC) you must live in Canada for "at least 2 years in a 5 year period" to maintain your status:

When you are a permanent resident, you can live outside of Canada, but must live in Canada for at least two years in a five-year period. If you live outside of Canada for longer, you may lose your permanent resident status.

For more information on how long you have to live in Canada, see Appendix A: Residency obligation of the PR card application package.


You may find our article What are the residency requirements for permanent residents (PRs)? for some additional information. Here is an excerpt:

To meet these residency obligations, you must be physically present in Canada for at least 730 days (2 years) in every 5-year period.

This means that you can spend a total of up to 3 years outside of Canada during a 5-year period.

However, if you leave the country for an extended period of time, it is up to you to prove to Citizenship and Immigration Canada that you will be able to meet your residency requirements.[...]If you know that you will be out of the country for an extended period of time it is very important that you contact Citizenship and Immigration Canada and let them know that you will be returning. Citizenship and Immigration Canada no longer issues Returning Resident Permits.


In terms of returning to Canada you can find some information on the Immigration, Refugees and Citizenship Canada (IRCC) website in the Leaving/Returning to Canada section.

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.

=====
Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
link
Moderator
Moderator
Moderator
Posts: 2110


Posted On: 2/14/2017
Moderator
Moderator
Moderator
Posts: 2110
Hello Peter,

Thank you for your kind words. You are very welcome. It is our pleasure to provide any information possible.

Regarding what you have stated about loss of permanent residency status, 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:
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), you 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.

If you 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.

In terms of re-entering Canada, you may want to look at what your options are on the Immigration, Refugees and Citizenship Canada (IRCC) website in the What happens if my permanent resident card expires while I am outside Canada? section.

This section discusses options and "other documents you can use to re-enter the country" if your card expires while outside Canada and you plan to return to Canada by private vehicle.

We suggest that it is important and probably best that you speak to a Lawyer who is familiar with Canadian immigration issues for additional information regarding your situation.

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.

=====
Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
link
Peter De Zilwa
Peter De Zilwa
Posts: 3


Posted On: 2/14/2017
Peter De Zilwa
Peter De Zilwa
Posts: 3
Hi Anna,
I am indeed indebted to your kindness but I have gone through all you mentioned in the information you put together for me, but just cannot come across a file or form that will help me make a appeal claim to come back into Canada. Can you please help.I appreciate all your help. Thank you and God Bless!
Peter

Hello Peter,

Thank you for your kind words. You are very welcome. It is our pleasure to provide any information possible.

Regarding what you have stated about loss of permanent residency status, 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:
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), you 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.

If you 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.

In terms of re-entering Canada, you may want to look at what your options are on the Immigration, Refugees and Citizenship Canada (IRCC) website in the What happens if my permanent resident card expires while I am outside Canada? section.

This section discusses options and "other documents you can use to re-enter the country" if your card expires while outside Canada and you plan to return to Canada by private vehicle.

We suggest that it is important and probably best that you speak to a Lawyer who is familiar with Canadian immigration issues for additional information regarding your situation.

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.

=====
Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
link
Ande@metcalfe
Ande@metcalfe
Posts: 1


Posted On: 5/7/2017
Ande@metcalfe
Ande@metcalfe
Posts: 1
I have "Landed immigrant Status" (IM1000) since Aug 1973.

I had a Permanent resident Card issued but have lost it.

When entering Canada, if asked, & I never was I carried my Pink IM 1000 form in my passport.

I entered Canada 20 Sept 2016 in the usual way.

My UK passport was checked & i was allowed entry.

I have a SIN # an OHIP Card, an Ontario Drivers Licience, a TD Bank Account & a permanent address.

I cannot meet the Residency requirement of 2yrs in the last 5yrs.

I am retired living on Indepenent Means.

I have relations in Canada who are Canadian Citizens.

I can do all that I want to do in your country except get back into Canada if I leave .

I may not be allowed to board an Canadian Bound Flight.

I wish to attend a friends wedding in Valletta Malta, As there are no Direct Flights Canada/Malta, my fear is I could be trapped in a foreign airport as I would not be allowed to Board a Canada Bound Flight.

Am I a prisoner in Canada until I meet the Residency Requirment?
Yours faithfully
link
Moderator
Moderator
Moderator
Posts: 2110


Posted On: 5/18/2017
Moderator
Moderator
Moderator
Posts: 2110
Hello,

Thank you for sharing your situation and question with us.

It is very difficult for us to provide you with a definitive response.

It is best that you contact a reputable Lawyer or a reputable Immigration Consultant who is knowledgeable about Canadian Immigration issues.

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.

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