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PR Status Question - Not Met Residency Requirement
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pevgeny Posts: 1
Posted On: 7/15/2018
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Hello,
I am Canadian citizen and my elderly mom is permanent resident.
She has to renew her PR card by April 2019 and we have the following situation here:
She fails the requirement test of living 2 years of last 5 years in Canada, she did passed it the prior 5 years tough.
The problem is that she was planning the last 2 years moving permanently to live in Canada, but her health situation was problematic and she undergo 2 surgeries on her eyes and as under medical supervision that required her staying in her 1-st citizenship country abroad.
Also, my personal financial and medical family situation got worse and I had a hardship sponsoring her presence in Canada but she was able to live abroad of social help she entitles from that country.
We don't want her loosing the permanent residence because of the 2 years presence problem, she suppose to fly in in October to Toronto.
What should we do?
1) The border immigration officer will see at the POE that she is failing the 2 years presence out of 5 years .
2) Should we still file the PR renewal although it is obvious she wasn't here 2 out of 5 years?
3) Can she let PR expire in 2019 and just stay 2 years in Canada without living and than to ask for PR renewal?
Appreciate any feedback!
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Moderator Moderator Posts: 4075
Posted On: 7/31/2018
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Hello,
Thank you for sharing your situation and question with us.
We can appreciate that you would be interested in this information.
We have previously received some information from one of our legal researchers related to which days or periods are considered for 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 move-able 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.
Regarding the time you spend outside, you can find information on the process that is followed when entering Canada in this Immigration, Refugees and Citizenship Canada (IRCC) ENF 23 - Loss of Permanent Resident Status manual.
Here is an excerpt from the manual on what happens at the port of entry,
2. Program objectives
IRPA establishes a residency obligation with respect to each five-year period after permanent resident status has been granted.
and
7.8 Examining Permanent Residents at a POE (Port of Entry)
When a permanent resident appears at a POE for examination, the officer must confirm that the person is a permanent resident. Officers must remain cognizant of the fact the Act gives permanent residents of Canada the right to enter Canada at a port of entry once it is established that a person is a Permanent Resident, regardless of non-compliance with the residency obligation in A28 or the presence of other grounds of inadmissability.
Port of entry officers (POE) can refuse entry to a Permanent Resident only when the person has already lost the status in accordance with the provisions of A46 (such as when a final determination has been made that they have failed to comply with the residency obligations or when a removal order comes into force).
In other words, once a permanent resident's status is established, the person may enter Canada by right and the immigration examination under IRPA concludes.
The onus is on each individual permanent resident to meet their own residency requirements. This means that it is up to you to ensure that you are meeting the residency requirement within each 5 year period and that you are also keeping track of your time spent inside and outside Canada.
It is difficult for us to provide you with a definitive response regarding what will happen in your mother's particular situation.
If you have concerns about your mother meeting her residency requirements, it is important and probably best that you speak to a Lawyer who is familiar with Canadian immigration issues for additional information regarding your mother's 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.
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Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
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