Pivot Legal

In a previous installment, I discussed the differential impact of a criminal record on the status of permanent residents and Canadian citizens. Another area where practical differences exist between citizenship and permanent residence is 'residency restrictions' - I use this term to refer to the various consequences of being outside of Canada for a person's status.

One of these consequence is the restriction on family-class sponsorship. In general, all sponsors wishing to sponsor eligible family members for Canadian permanent residence must reside permanently in Canada. However, an exception exists: if the family members are spouses and/or dependent children of the sponsor, AND THE SPONSOR IS A CANADIAN CITIZEN, then the sponsor need not live in Canada, but must declare his or her intention to reside permanently in Canada once the family members being sponsored have become permanent residents. Note, HOWEVER, that this option does not exist for a PERMANENT RESIDENT sponsor - such an individual must reside permanently in Canada for the duration of processing of the family class sponsorship, no matter who the applicants are.

Another of these consequences is retention of status following an absence from Canada. Under current legislation (February 2008), a Canadian Citizen can generally remain outside of Canada indefinitely, without losing their citizenship status. This pertains both to Canadians born in Canada and to naturalized Canadians. There are some small exceptions to this general rule - which should be careful assessed in specific circumstances - but, for the most part, there has not been extensive derogation from this principle under the current Citizenship Act and Regulations.

As many people are aware, however, an absence from Canada can affect a permanent resident in very immediate ways. In general, every permanent resident has the requirement to adhere to certain residency obligations - that is, a minimum amount of time physically present in Canada. Currently, under the Immigration and Refugee Protection Act and the Regulations, the amount of time is two years - 730 days - in the prior five years SINCE the individual first acquired their permanent residence.

Actual loss of permanent residence status - rather than simply not complying with the statutory residency obligations - involves a somewhat more complex analysis than is possible in this forum - for example, it requires an actual DETERMINATION by the relevant authorities that status has been lost, and discretionary humanitarian & compassionate considerations can play a role in any final outcome on this issue. However, residency obligations remain a very real and important vehicle by which individuals can lose their status in Canada.

Despite this obligation, strategic options do exist for a permanent resident seeking to live outside of Canada. One common example is working for a 'qualifying Canadian business'; another is living outside of Canada with a Canadian citizen spouse. These options, however, have several limitations and restrictions, and, therefore, careful assessment prior to implementation is absolutely essential, as the consequences of improper implementation often includes potential loss of permanent residence status.

Disclaimer

The information contained in this article is intended to provide general information only. It does not constitute formal legal advice or give rise to any solicitor-client relationship. The author and Pivot Legal LLP disclaim any and all liability resulting from reliance upon this general information. The author and Pivot Legal LLP strongly recommend seeking formal legal advice from a competent solicitor before acting upon any information that may appear in this article.