Permanent resident status determination

For an officer to make a permanent resident status determination, the officer must consider several factors, including

• who may apply for a status document
• when and why determinations of residency status are required
• what to take into consideration when making a determination of residency status
• what to do if an applicant does not meet their residency obligation
• when to issue a permanent resident travel document to a permanent resident

On this page

• Residency requirements
• Determining if residency requirements are met
• Assessing humanitarian and compassionate concerns

Residency requirements

The Immigration and Refugee Protection Act (IRPA) establishes residency requirements and obligations with respect to each 5-year period after an individual obtains permanent resident status.

Pursuant to subsection A28(2), a permanent resident complies with the residency obligation provisions with respect to a 5-year period if, for at least 730 days in that 5-year period, the permanent resident is

• physically present in Canada
• accompanying outside Canada a Canadian citizen who is their
  • spouse
  • common-law partner
  • parent, in the case of a child
• employed outside Canada on a full-time basis by
  • a Canadian business
  • the federal or a provincial or territorial public administration
• accompanying outside Canada their spouse, common-law partner, or parent (in the case of a child), where the person they accompany is a permanent resident and is employed on a full-time basis by
  • a Canadian business
  • the federal or a provincial or territorial public administration
• referred to in regulations providing for other means of compliance

Determining if residency requirements are met

Officers shall use the date that an application is officially received in the office in the examination of residency status. Using this date does not disadvantage the applicant in any way if the formal assessment of an application is delayed for any period of time following receipt of the application.

At examination, it is sufficient for those who have been permanent residents for

• 5 years or more to demonstrate that they have met their residency requirements in the 5 years immediately before examination
• less than 5 years to demonstrate that they will be able to meet their residency requirements using the day they became a permanent resident as the starting date

Five years or more as a permanent resident

For people who have been permanent residents of Canada for 5 years or more, the only 5-year period that can be considered in calculating the applicant’s residency requirements is the one immediately before the application is received in the office.

As per subparagraph A28(2)(b)(ii), officers must examine only the 5-year period immediately before the date of receipt of the application. Even if a person resided outside of Canada for many years, but returned to Canada and resided there for a minimum of 730 days during the last 5 years, that person would comply with the residency obligation and remain a permanent resident.

Less than 5 years as a permanent resident

People who became permanent residents of Canada less than 5 years prior to the date of receipt of the application are governed by subparagraph A28(2)(b)(i). This provision allows new permanent residents to qualify under the residency obligation provided they can meet the 730-day criterion during the first 5-year period immediately after their arrival in Canada. Even if a person resides outside of Canada for up to 3 years following the date of first arrival in Canada, that person will meet or may meet the residency obligation as long as they still have the possibility of complying with the requirement to be in Canada for 730 days.

In addition to section A28, section 61 of the Immigration and Refugee Protection Regulations (IRPR) provides definitions and further describes situations in which time spent outside of Canada can be counted towards the residency obligation in Canada to retain permanent resident status.

Assessing humanitarian and compassionate concerns

Designated officers with the authority to assess humanitarian and compassionate (H&C) considerations are obliged to consider all the information they have. They cannot rely solely on guidelines. H&C applications must be reviewed on a case-by-case basis.

Applicants are free to make submissions at any point in the process prior to the determination on any aspect of their personal circumstances that they feel would justify retention of their permanent resident status, despite not having met their residency obligation. Although space is reserved for H&C grounds in application forms, there is no specific format in which the submission should be made. H&C submissions can also be initiated by the officer on behalf of the applicant. Whatever is apparent on the file must be considered by the designated officers with the authority to assess H&C considerations before a determination is made.

Given the significance of the loss of permanent resident status, designated officers with the authority to assess H&C grounds should give a fair chance for the applicant to inform them of any possible H&C grounds for consideration.

Factors to consider for humanitarian and compassionate grounds

Designated officers with the authority to assess H&C considerations should consider the kinds and combination of factors when determining whether H&C grounds justify the retention of status. Designated officers with the authority to assess H&C should remember that they are not assessing intent. Rather they are assessing the circumstances and events that occurred in the 5 year period that led to the breach of residency requirements.

The designated officer with the authority to assess H&C should also take into account the best interests of a child directly affected by the determination, and the degree of hardship that may be caused by a determination that an individual or family has lost permanent resident status.

The extent and circumstances of the non-compliance

• How long beyond 3 years in the last 5-year period was the person outside of Canada?
• Was the person outside of Canada for more than 3 years in the last 5-year period because of a medical condition or the medical condition of a close family member?
• Could alternative arrangements have been made? Was it the applicant’s choice to remain outside of Canada?

Circumstances beyond the person’s control

• Are the circumstances that led to the person remaining outside of Canada compelling and/or beyond their control?
• Was the person prevented from returning to Canada?
  • Why?
  • By whom or by what event?
• Did the person leave Canada as a child accompanying a parent?
• If they left as a child, are they now returning to Canada at the earliest possible opportunity?
• Are they now over 22 years of age and returning at the earliest opportunity since becoming 22 years of age?
• Does the person who is over 22 years of age meet the requirements to be considered a dependent child due to mental or physical condition and are or were they accompanying their parent when they left Canada?