Canada: Maintaining Permanent Residency When Faced With A Departure Order

Last Updated: March 29 2019
Article by Jenna Kirk

In order to maintain a permanent residency in Canada, residents must be physically present in Canada for at least 730 days (2 years) in every 5-year period. The 5-year period is assessed by Immigration, Refugees and Citizenship Canada ("IRCC") on a rolling basis. If a resident is outside of Canada for extended periods of time, the resident must prove to IRCC that they are able to meet the residency requirements, which allow some days outside of Canada to count towards the 730 day requirement. For example, Section 28(2)(a)(iii) of the Immigration and Refugee Protection Act (the "Act"), allows for days spent outside of Canada to count towards the residency requirement if the resident is employed on a full-time basis by a Canadian business and is assigned to a position outside of Canada. If an immigration officer determines that a resident has not complied with the residency obligations, the officer may issue a departure order requiring that person to leave Canada.

In a recent Immigration Appeals Division hearing, Field Law's Business Immigration Group successfully appealed a departure order issued against a permanent resident who was employed outside of Canada by a Canadian company.

In this hearing, the Appellant came to Canada in 1997 under the live-in Caregiver stream. The family she worked for also had a family-owned and operated business with offices in Canada and abroad. The Appellant obtained Canadian permanent residence in 2000 and continued to work as a caregiver until 2007. At this point, the children she had originally cared for were grown and she was transitioned to a role as a personal assistant for the CEO of the Corporation. There was no formal employment contract governing this transition.

In her new role, the Appellant spent the majority of her time assigned outside of Canada as an employee for the Canadian Company. Upon returning from one of her assignments she was issued a departure order for non-compliance under Section 28 of the Act for failing to meet the residency requirement. The Appellant appealed the departure order to the IRCC Immigration Appeal Division (the "Appeal Division").

Field Law represented the Appellant in her appeal. In a written decision issued on August 25, 2017, the Appeal Division held that finding the Appellant inadmissible under Section 28 of the Act was incorrect at law. The Appellant's T-4 and Notice of Assessment forms stated that she was employed by the Corporation rather than the family since at least 2010. The change in the Appellant's employer and the lack of a formal employment contract worked to the benefit of the Corporation rather than the Appellant. There was no evidence that the Appellant's employment with the Corporation in the United States was arranged to help her remain outside of Canada. The Appellant had no reason to go to the United States other than for work. The Appellant had no connections to the United States and maintained significant connections in Alberta while she was working abroad. The Appellant resumed working with the Corporation when she returned to Alberta in 2015. These factors all contributed to the Appeal Division's finding that the Appellant was properly working for a "Canadian business" as defined by Section 61(1) of the Immigration and Refugee Protection Regulations. As such, the Appellant was given sufficient credit for being employed by the Corporation in the United States to satisfy the residency obligations required by the Act.

This case underscores the importance of being represented by competent counsel when dealing with Immigration, Refugees and Citizenship Canada. If you have questions about your rights under Canadian Immigration or Citizenship legislation or require legal representation for a hearing or appeal,

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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