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Not Meeting the Residency Requirement at Entry 

shahaab
shahaab
Posts: 2


Posted On: 6/26/2014
shahaab
shahaab
Posts: 2
Hi,

I have applied and been issued a travel document to get back to Canada (My PR card had expired).

However, my residency days are on the border line; I mean by the time I enter Canada, I will be short of 730 days, only by 2-3 days.

What will happen at entry?

Can the officer at the airport not allow me to enter Canada?

Thanks.
link
Moderator
Moderator
Moderator
Posts: 3787


Posted On: 6/26/2014
Moderator
Moderator
Moderator
Posts: 3787
Hello,

Thank you for sharing your situation and questions with us.

In terms of the process when re-entering Canada, each time you enter Canada, Citizenship and Immigration may calculate 5 years back from the date you have entered or re-entered Canada to see if you have fulfilled your residency obligation.

You can find information on the process that is followed when entering Canada in this Citizenship and Immigration Canada (CIC) ENF 23 - Loss of Permanent Resident Status manual.

Here is an excerpt from the manual on what happens at the port of entry here:



"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.

If an officer has concerns that a permanent resident has not complied with the residency obligation of A28, the officer should advise the permanent resident when the examination is concluded that they are authorized to enter Canada; however, the permanent resident may wish to answer additional questions so the officer may determine whether their concerns are well founded or not.

In cases where:
- permanent resident status is established;
- the permanent resident refuses to provide any further information and enters Canada;
and
- the officer believes, on a balance of probabilities that the person is in non-compliance with the residency obligation, officers may report the person, pursuant to A44(1). if there is sufficient evidence to support an inadmissibility allegation. In the absence of sufficient evidence to support the writing of an inadmissibility report, officers may enter any available information into FOSS (date of entry, last country of embarkation, current address in Canada etc.).


and

If an officer has concerns that a permanent resident has not complied with the residency obligation of A28, the officer should advise the permanent resident when the examination is concluded that they are authorized to enter Canada; however, the permanent resident may wish to answer additional questions so the officer may determine whether their concerns are well founded or not.


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.

According to the Citizenship and Immigration Canada (CIC) 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.


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
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shahaab
shahaab
Posts: 2


Posted On: 6/28/2014
shahaab
shahaab
Posts: 2
Wow! Thanks for your detailed and well-founded response.

"the person has a right to appeal the removal order," are "delay in issuing the Travel Document", or "health and medical issues" acceptable reasoning to appeal?

Also, 2-3 days short of 730 days seems to be not a big deal, how tough and strict are they going to be?

Thanks.
link
Moderator
Moderator
Moderator
Posts: 3787


Posted On: 7/10/2014
Moderator
Moderator
Moderator
Posts: 3787
You are very welcome!

We apologize, unfortunately, it is not possible for us to provide a definitive response regarding being short by 2-3 days.

We hope that others who may have had a similar experience can share their situation and suggestions with you.

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