Residency obligation appeals — Immigration Appeal Division

The residency obligation is the rule that a permanent resident of Canada is physically present here for at least 730 days in every five-year period. When an officer decides it has not been met, permanent resident status is at risk: a travel document is refused abroad, or a removal order is made inside Canada. Both decisions carry a right of appeal to the Immigration Appeal Division, and Karb Law prepares and argues those appeals.

Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before tribunals of the Immigration and Refugee Board — the Immigration Appeal Division among them — falls within a licensed paralegal's scope of practice. This page is general information about procedure and is not legal advice; reading it creates no paralegal-client relationship.

What the residency obligation actually requires

Section 28 of the Immigration and Refugee Protection Act sets the number at 730 days within any five-year period. The period is rolling: it is measured backwards from the day of the assessment, so the same person can be compliant in one year and short in the next. A permanent resident who has held status for less than five years is assessed differently — the question there is whether the 730 days can still be reached by the fifth anniversary of landing.

Days spent outside Canada are not automatically lost. The Act counts several kinds of absence toward the total:

• accompanying a spouse or common-law partner who is a Canadian citizen, or, in the case of a child, accompanying a parent who is a citizen;
• employment on a full-time basis by a Canadian business, or in the federal public administration or the public service of a province;
• accompanying a spouse, common-law partner or parent who is a permanent resident and who is employed abroad on that same full-time basis.

Each of these has content behind it that decides real cases: what counts as a Canadian business, whether an assignment abroad was a genuine posting, and what "accompanying" means. Counting the days is arithmetic; establishing that a category applies is evidence.

How a residency determination is made

There are two routes, and they lead to different deadlines.

Outside Canada. A permanent resident whose card has expired applies to a visa office for a permanent resident travel document. The officer assesses the residency obligation as part of that application, and a refusal comes with written reasons and a determination that status has been lost.

Inside Canada, or at the border. An officer prepares a report, and where it is acted on a removal order follows — commonly on arrival at a port of entry, sometimes inland. The order takes effect only once any appeal is finished.

An officer at either stage may also decide that humanitarian and compassionate considerations, taking into account the best interests of a child directly affected, justify keeping the status despite the shortfall. That discretion is not reserved to the tribunal, which is why the material put in front of the officer matters before there is any appeal at all.

The appeal deadlines

• A decision made outside Canada on the residency obligation is appealed within 60 days of receiving the written reasons.
• A removal order made against a permanent resident inside Canada is appealed within 30 days of receiving the order.

The clock runs from receipt of the written decision, not from the conversation in which it was announced. Where the appellant is abroad, the appeal proceeds without their returning to Canada; hearings in that situation are commonly held by videoconference or telephone, with an interpreter arranged by the Division where one is needed.

What the Immigration Appeal Division looks at

A residency obligation appeal has two distinct branches, and most appeals run both.

The first is legal validity: was the officer right that the obligation was breached? This is where the day count is rebuilt from passport stamps, entry and exit records, tenancy and employment documents and school registrations, and where a claimed exception is proved or fails. An appeal that succeeds on validity ends the matter — there was no breach.

The second is humanitarian and compassionate relief. Even where the breach is admitted, the Division may allow the appeal if, taking into account the best interests of any child directly affected, sufficient humanitarian and compassionate considerations warrant special relief in all the circumstances. That branch is a factual case about a life, assembled from documents and testimony.

The considerations weighed on the humanitarian branch

The case law has settled into a recognisable list, applied flexibly rather than as a checklist:

• the extent of the shortfall — being short by weeks is not the same as being short by years;
• the reasons for leaving Canada, and whether it was voluntary;
• the reasons for remaining abroad, and whether returning was within the person's control — a parent's illness, a war, a passport withheld by an employer;
• the degree of establishment in Canada, at the start and as it stands now;
• family in Canada, and the dislocation that removal would cause them;
• the best interests of any child directly affected;
• whether attempts to return were made as soon as circumstances allowed;
• any hardship that losing status would cause where the person is now living.

None of these carries a fixed weight. What the file has to do is put each of them into evidence rather than into submissions — a letter from a treating physician, a school report, a record of the flights that were booked and cancelled.

What the Division is able to order

• Allow the appeal — the determination or the removal order is set aside and permanent resident status continues.
• Stay the removal order for a period, on conditions such as reporting and a required period of physical presence in Canada, with the appeal reconsidered at the end of it.
• Dismiss the appeal — the decision stands and permanent resident status is lost.

A stay is a working arrangement rather than an ending: the conditions are monitored, and a breach can be brought back before the Division. Which of the three outcomes is sought is decided when the case is prepared, and argued openly.

What representation involves

• Rebuilding the day count from primary records rather than recollection, and identifying whether the arithmetic or the five-year period itself is in dispute.
• Testing the exceptions — whether an employer meets the definition of a Canadian business, and whether the accompanying provisions apply on the facts.
• Filing the notice of appeal within the deadline that applies, and obtaining the record of the decision under appeal.
• Assembling the humanitarian record — the documents, the witnesses, and the evidence about a child where one is affected.
• Preparing the appellant and the witnesses, and appearing at the hearing, including by videoconference from abroad.
• Responding to the Minister's counsel, who takes part in these appeals as the opposing party.

Where the same facts have also produced a removal order, what the different orders are and how they operate is set out on our page about removal orders. Appeals of other kinds heard by the same Division are described under immigration appeals.

Who this service is for

Enquiries usually arrive from one of three situations: a permanent resident abroad whose travel document application has just been refused; someone stopped on arrival in Canada and handed a report or an order; or a family member trying to establish whether status has been lost. What helps most at a first call is short — the written decision, the date it was received, and an honest account of the days spent outside Canada.

Where status is retained, some of the filings that follow are made with the department rather than argued before a tribunal. Our legal team assists with the full range of your matter, including applications filed with IRCC. Where the facts point instead toward humanitarian and compassionate considerations, that is a separate process with its own test.

Speaking to us

Karb Law is in Richmond Hill and appears at Immigration and Refugee Board proceedings across the Greater Toronto Area. Because both appeal periods run from the day written reasons are received, early sight of the decision changes what can be done with it. You can contact the office, request a free assessment, or read about our immigration work and our practice areas.