Gregory James

Immigration Law Firm

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Loss of Permanent Residence Status

- Residency Requirement -

Generally speaking, permanent residence status can only be maintained if the permanent resident is physically present in Canada for 730 days (two years) in the most recent five year period. If a permanent resident has not met this requirement they risk losing their status.

There are a number of ways that this can come to the attention of Canadian immigration authorities. For example, a permanent resident in the Philippines who wants to travel to Canada is supposed to have a permanent resident card (PR card) in order to board a commercial airliner to fly here. If they don’t have the card they have to apply for a temporary document from the Embassy in Manila. Of course, Embassy officials are going to want to know the person’s residence history, and may ask for proof to back up the person’s statements.

The same happens when permanent residents apply for PR cards. They are asked to provide their residence history.

A permanent resident does not need a PR card to travel to Canada if they are in a private vehicle. Of course, travel by private vehicle is pretty much limited to car travel across the US border. Permanent residents who present themselves to Canada Border Services (as they are now called) at a land border may or may not be asked questions about their residence history. If they are asked questions the officer may determine that the person is no longer a permanent resident if the officer believes that the necessary requirements are not met.

People who have PR cards are presumed to be permanent residents. People who do not hold PR cards are presumed not to be permanent residents. That means a person appearing at a border crossing in a private vehicle without a PR card is more likely to be asked questions that someone who crosses with a PR card. However, it does not make it automatic that a traveller will be questioned at all, beyond the standard routine questions that we all get asked.

Loss of permanent residence status is not automatic. It requires a determination by an officer. If no officer makes a decision that PR status is lost, then the person is still a permanent resident. However, as you can see, people who remain outside of Canada for too long risk being exposed to uncomfortable questions, and losing their status as a result.

It does happen that people who were not able to meet the 730 day rule were still able to enter Canada -- maybe because they were not asked any questions when they crossed the US-Canada border in a private vehicle. If such a person leaves Canada again, or gets into trouble inside of Canada, or applies for a PR card, they risk being asked uncomfortable questions, at least until they can satisfy the authorities that they have met the 730 day rule. So they may be unable to travel for as long as two years before they can qualify for that PR card and then travel again.

The 730 day rule is not completely inflexible. The officer reviewing the case is allowed to consider humanitarian and compassionate factors, for example. But humanitarian and compassionate factors are not clearly defined, and so no one should simply assume that they will qualify for this kind of flexibility. Immigration officers have a different, stricter, definition of humanitarian and compassionate factors than do most people.

If an officer does determine that a person has lost their permanent residence status because of the 730 day rule, there is an opportunity to appeal that decision to the Immigration Appeal Division. This is a good appeal, and I have had clients who have come to the border knowing they will be rejected, and then winning their appeal. The permanent resident can make this appeal if they are refused a temporary permit by a visa officer, or refused a PR card, or refused entry at a border crossing. When they are refused entry as a PR at a border crossing, permanent residents are generally allowed into Canada temporarily to pursue the appeal. If a person is determined by an officer not to be a permanent resident, and does not make an appeal, then the decision becomes final.

There are some exceptions to the requirement for 730 days of physical residence, but they do not apply to very many people. They tend to turn on work obligations outside of Canada. If a permanent resident has work opportunities outside of Canada that will prevent them from being physically present for the required 730 days, they should be very careful to make sure that this exception applies to them. In most cases, it will not, and it would be a shame if permanent residence status was lost because of a misunderstanding. There are no such exemptions for people who want to study outside of Canada.

Loss of permanent resident status can be a very serious matter. I recommend that permanent residents err on the side of caution and not take unnecessary risks.

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