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IMMIGRATION TO CANADA: MAINTAINING PERMANENT RESIDENCE AND PERMANENT RESIDENCE CARDS
In this current section we will look at some current issues relating to Maintaining Permanent Residence.
The Need for Legal Representation:
1. The Permanent Resident Card Application:
A Permanent Resident Card application is a simple application form. However, the immigrant may seek to "buy insurance" by retaining a legal counsel to ensure that it is completed correctly and to ensure that there are no unforeseen issues that the immigrant may not be aware of. Usually the legal counsel is in a better position to know what the government is looking for, when reviewing the application, what documents should be provided, how best to present the case, and in what cases the Permanent Resident Card application is likely to face difficulty. In many cases the legal counsel will be in a better position to not only assess the merits of a Permanent Resident Card application but to argue and present it. The cost of the legal representation at this stage is minor relative to the cost of legal representation at a later stage should an appeal of refusal of being granted a Permanent Resident Card be necessary.
2. The Permanent Resident Card Renewal Application:
The standard PR Card is good for 5 years. Prior the expiry of the 5 year period one should make an application for a new PR Card in order to not be without one when needed. The renewal application for the PR Card appears as simple as the initial PR Card application. However, the same cautions that are noted above under the section “The Permanent Resident Card Application” applies for renewals. During the renewal process, the permanent resident must provide a detailed description of their residence addresses, and work and school histories, over the preceding 5 years as part of the renewal process. Where it is determined that the “residency obligation” is not satisfied, further information is usually requested. This delays the process by many months and can be avoided by giving accurate and complete information in the initial application. Where the permanent resident is short the required number of days in Canada, delay will occur in processing of the renewal application. However, prior explanation and submission in support of the reasons for being short the required number of days is crucial to avoid further complications and costs in the future. After the PR Card renewal application and any further documentation requested by immigration is reviewed, if still not satisfied, an immigration officer could write a Report seeking to revoke the permanent residence of the applicant for failure to meet the residency obligations required of Permanent Residents. Should the Report be issued, the next step is an Inquiry and later an Appeal of the Inquiry decision should the applicant seek to pursue the retention of permanent residence. This is discussed below.
3. The Travel Document Application:
Where an immigrant is out of Canada and seeks to return and is seeking to make an application for a Travel Document, it may be wise to first consult with legal counsel in order to ensure that there are no unforeseen issues that the immigrant may not be aware of.
4. Maintaining Permanent Residence:
Consulting legal counsel is best in order to work out the possible issues, and a possible action plan, especially where the immigrant knows that they may have to be out of Canada more than permitted under current residency laws. Proper legal advice and proper preparation at this stage is crucial and can greatly affect the outcome of whether an immigrant will be able to maintain permanent residence or not.
5. Citizenship Application:
Legal counsel would be able to advise the immigrant whether the citizenship test has been met, whether to apply immediately or not, what documentation needs to be prepared, what risks may be faced, how to better present the application, how to prepare for the oral interview and written test, and raise other issues and concerns that need be considered when making a citizenship application.
6. The Inquiry determining the Permanent Resident to have lost Permanent Residence:
Legal Counsel usually accompanies the immigrant to the inquiry, unless the Permanent Resident is overseas and unable to return to Canada or not permitted to re-enter Canada. Despite the difficulty in altering the outcome at this stage the counsel can set the foundation for a better outcome for the appeal. It should be noted that a failure to contest the Inquiry results in the immigrant losing landed status in Canada and being forced to leave Canada or losing the right to re-enter Canada in the future.
7. Appeals:
Legal counsel would be able to advise as to the merits of proceeding with an appeal where there has been a negative determination on a Permanent Resident Card application, a determination to remove Permanent Residence, a denial of a Travel Document, a denial of a Citizenship application.
Legal Counsel usually attends the court for the appeal, with or without the immigrant. The argument usually consists of argument based on fact and case law. The immigrant rarely participates in the proceedings, but if in attendance, is a mere spectator. It is at this stage that the immigrant through legal counsel has the chance to re-obtain permanent residence or to obtain an order to overturn the refusal to grant citizenship or the refusal to grant a Permanent Residence Card. Failure to win at the appeal stage of a loss of Permanent Residence appeal, results in the immigrant being compelled to leave Canada and to re-apply for immigration to Canada. It should be noted that a failure to appeal a negative Inquiry decision on permanent residence results in the immigrant losing permanent residence status in Canada and being forced to leave Canada.
8. General:
Legal Counsel can provide proper legal advice and proper preparation at an early stage which would be crucial and which would greatly affect the outcome of the immigrant’s immigration status.
Some Examples of the Issues//Dilemmas Faced:
Where an immigrant has not applied for, or has been refused, a Permanent Resident Card, and has still left Canada, there is a strong chance that the immigrant will be denied re-entry, unless the immigrant is from a visa-exempt country and re-enters as a visitor. However, if the immigrant re-enters as a visitor, some would argue that the immigrant has acknowledged that the permanent residence is lost. In some cases, it may not matter as the immigrant can be sponsored back by his still permanent resident spouse or by his still permanent resident children, assuming the appropriate sponsorship criteria are met. In some cases, the only way to regain permanent resident status would be start a completely new permanent residence application. In some cases, although formerly eligible for permanent residence, the immigrant would no longer be eligible due to changes in criteria or changes due to the passage of time that would make it more difficult to meet the criteria.
Where an immigrant decides to not fight the loss of permanent resident, there may be other consequences. If the dependent children and spouse also follow the permanent resident out of Canada, then the children face the loss of roots being built in Canada and a chance at obtaining a relative inexpensive Canadian education. If the immigrant is a businessman, he may be forced to sell the business at a loss, and/or cease employing Canadian employees.
Some immigrants choose re-applying for immigration at a later date in order to preserve their current situation abroad. In some cases however, as noted above, the law changes and the ability to re-apply is lost. In other cases, the immigrant having lost permanent residence chooses not to re-apply for immigration to Canada.
The consequences for an entrepreneur immigrant are more serious. If the immigrant has not yet achieved removal of terms and conditions on the entrepreneur visa, not just the immigrant but all of the dependants also lose their permanent residence. For those immigrants who came as entrepreneurs, who want their family in Canada but who need to be out of Canada on a regular basis, the consequences can be severe should the permanent residence be lost prior removal of terms and conditions.
Another group often affected by the residency obligation rules are business persons who travel abroad as part of their business dealings and foreign company executives. In the case of business persons, unless they can fit one of the residency obligation exemptions set out in the Act, as set out above in this article, they risk losing their permanent residence. Even where one of the exemptions is met, the person may still be short of the required number of days required to meet the citizenship requirements. In the case of foreign company executives, those that choose to apply for Canadian Permanent Residence while assigned to a branch operation in Canada, and who choose to remain employed with the foreign company even after obtaining permanent residence, face the risk of not meeting the residency obligation when they are re-assigned to another branch operation in another country. In these situations, maintaining strong ties to Canada even after the re-assignment out of Canada, is critical to convincing Canadian Immigration that Permanent Residence should not be revoked.
Immigration visa officers have also taken a stricter approach toward Permanent Residents going abroad and remaining outside of Canada more than 730 days cumulative in any recent 5 year period. Permanent Residents who remain outside of Canada more than a cumulative total of 730 days in the five year period may only be out if they meet one of the limited exceptions to the rule. Otherwise they risk losing their permanent residence. In one recent case, an immigrant stayed outside of Canada a cumulative of 750 days and as a result upon return to Canada, was refused entry as a permanent resident. The immigrant must then attend an Inquiry and convince Immigration that the immigrant’s intent was never to abandon Canada as the place of permanent residence. If the immigrant fails, he must launch and fight a costly appeal and win, or lose his permanent resident status in Canada. The special circumstances in this case also involved the fact that this person was finishing an overseas work contract and that if the immigrant did not return to their overseas job within seven days, the immigrant would lose the job and all additional bonus’ related to it. Since immigration inquiries are never scheduled so quickly in such cases, the immigrant ended up abandoning the permanent resident status rather than lose the economic benefits that were to receive at end of the contract, a mere three months away. In the past, immigration was not so rigid and much more flexible. Such strict enforcement has meant that many of the rules that were taken for granted and the belief was that there would be no problem on return, now face an enormous headache should they be stopped. In another case, a permanent resident returned to London England to complete a Ph.D. He was out of the country for three and one-half years. Each year the immigrant under the pre-June 2002 legislation applied for a RRP in order that he would have no problem returning to Canada at the end of the Ph.D. After the law changed in June 2002, RRP’s were eliminated. Students over the age of 22 studying abroad did not fall within the exceptions for not complying with the 730 days, unless one could argue humanitarian grounds. The immigrant faced a tough situation of risking continuation of the Ph.D. with no certainty of whether the reasons for not complying with the 730 day residency requirement would be sufficient to maintain permanent residence. Or, the immigrant could have chosen to transfer to a Canadian based university and not be able to graduate when planned. The immigrant had three choices: 1. finish his Ph.D. and then take his chances on re-entry to Canada that he would not be stopped and his permanent residence challenged, with all the other consequences to follow; 2. abandon his Ph.D. and return to Canada immediately before he exceeded the 730 days residency requirement; 3. fight and appeal with all the costs and aggravation that goes with it. Technically, the immigrant had a strong case on the merits. By drawing the rules so narrow, many immigrants are put in unnecessary dilemmas. Because of much abuse of the immigration rules and regulations by a limited number of insincere and dishonest immigrants, other immigrants now face a strict and harsh enforcement environment.
Another development related to enforcement has been airport immigration at Canadian airports. Prior June 2002, it was common that persons visiting Canada, charged under the Immigration Act and/or it's Regulations, such as being outside of Canada more than 183 days in one year and not having a RRP, were having not just their passports and travel documents seized but also their other identity documents were being seized. For persons requiring medical attention until their case is heard at an inquiry, it could be quite troublesome. In one case, a landed person returning from overseas and being out of the country 198 days had her passport, landing paper and OHIP seized. She was suffering from a flu, and being 78 years of age, required immediate medical attention. She was forced to pay out of pocket. The irony was that she was returning to Canada to attend her swearing in ceremony for Canadian Citizenship. She had passed the Citizenship test and was merely awaiting the taking of the Citizenship Oath. Again strict enforcement took away the rights that should not have been lost. Since June 2002, we have not heard of many of these kinds of cases, although it may still occur if an overly zealous immigration officer is encountered.
The above cases do not mean that there are not times when strict enforcement is negative, but by being overly eager, immigration officials have caused harm to innocent persons along the way.
Final Note:
In many cases, upon landing in Canada, an immigrant does not seek further legal advice before departing Canada. Obtaining legal advice is very important as to how to better lay the foundation for a successful maintaining of Permanent Residence and/or Permanent Resident Card and/or citizenship application, especially in the current environment where Immigration authorities have become stricter in applying the residency rules and regulations. Further, given the current trend in Citizenship law and the strengthening of the demand for actual physical presence, should the immigrant be contemplating leaving Canada for multiple brief periods or one or more long periods, there is a greater need to speak to a qualified immigration lawyer about the risks and pitfalls that could later arise. As always, the prospective immigrant should seek proper and honest legal advice in order that the prospective immigrant does not lose the right to maintain permanent resident status in Canada and/or the right to obtain Canadian citizenship.
For further information on immigration to Canada, please contact one of us at Marvin Moses Law Office.
(Since the issues and matters in reality are quite complex, it is recommended that legal or other appropriate professional advice should be sought before acting upon any of the information contained therein. Although every reasonable effort has been made to ensure the accuracy of the information contained in this article, no individual or organization involved in either the preparation or distribution of this article accepts any contractual, tortious, or any other form of liability for its contents or for any consequences arising from its use.)