Myth: A permanent resident (PR) of Canada remains a PR until the expiry date on his PR Card. The status cannot be lost before that time.
Canada’s permanent residence (PR) program has become very popular for many foreign workers who wish to remain in Canada after a temporary stint, as well as for ‘independent’ immigrants applying directly from abroad. However, securing PR status is one thing; maintaining it is another. It is crucial to understand the obligations surrounding PR status after someone secures such status. Failure to comply with the law could lead to loss of status.
Once a person becomes a permanent resident of Canada, he/she has specific residency obligations which must be met in order to maintain that status. There are some misconceptions though about how to meet those requirements.
This article is divided into two parts. First, we will set out the basic residency requirements, and some of its issues, but second, and in accordance with a primary objective of this article, we will set out to untangle the specific problematic issues that often arise due to a misunderstanding of the PR Card vs. PR status. These are two distinct things, and despite popular belief to the contrary, having a PR Card does not guarantee that you will retain PR status.
- The Residency Requirement Overview
In very general terms, to maintain PR status, you must, for 2 out of 5 years back from the date of review, meet one or more of the following conditions:
- Be physically present in Canada
- Be outside Canada working for a Canadian company (or the federal or a provincial government), or
- Be outside Canada accompanying a Canadian citizen spouse
Failure to comply with this requirement can lead to loss of PR status.[Note that in practice, the process to technically lose status, or have it revoked, may be more complex, possibly involving a hearing and other procedures, but for our purposes, we are looking at the substantive issues as assessed at the time of review, as discussed below.]
Before dealing with some specific issues concerning these requirements, it is crucial to understand that the 5 years in question runs backwards from the date of each review – the date on which the matter is being examined, and not any other date. And it is a ‘rolling’ date – no matter what other dates may come into play (including the date on a PR Card), the 5-year date will change constantly as time moves forward. Such reviews occurs every time someone interacts with the Canadian immigration system. Most commonly, that will occur when someone arrives in Canada on an international flight. (For example, therefore, someone arriving in Canada on April 1, 2017, will have his status reviewed back until April 1, 2012.) Bear this in mind as a prelude to the PR Card issues discussed further below.
In looking at the 3 noted ways to satisfy the conditions, let’s just review some of the issues that we sometimes see arise:
- Being physically present in Canada – sounds easy, but do you have the evidence to backup your assertion? Don’t assume that the officer will just believe you; you may need evidence which can include all variety of proof such as pay slips, proof of kids in school, apartment rental payments, etc.
- Being outside Canada working for a Canadian company – this is one of the riskiest methods of getting time to count toward your two-year requirement. You must be abroad working for the Canadian company or an affiliate or client; paying Canadian taxes, as some think, doesn’t necessarily solve the problem. Further, setting up a company/scheme just to meet the requirement may be ‘unveiled’ so that the test will not be considered to have been met. Worse still, you won’t know whether your reliance on this rule is valid or not until you try to come back some time down the road and an officer reviews your case and questions it, based on the system noted above. So, you need to be confident and/or consider proper preparations before leaving and relying on this provision.
- Being outside Canada accompanying a Canadian citizen spouse – this is perfectly fine, and indeed, note that the Canadian citizen can be the person who might otherwise be thought of as the ‘dependent’. That is to say, if a permanent resident husband wants to go abroad, and his dependent Canadian citizen wife is with him, he is still accompanying her for the purposes of meeting the two-year rule. Effectively, he has become her dependent. Note again though that like any of the above, or any legal issue in general, you must still have evidence to substantiate the facts.
2. The Myth/The Confusion/The Reality of the PR Card
Now, we need to take this understanding further.
The issue we see constantly with regard to PR is a (mis)belief that you maintain your PR status as long as your PR Card has not expired. That is, the card effectively acts as a ‘5-year pass’. However, as noted, the 5-year period in question is the one 5 years back from the date of review by an officer; it is NOT the date on the PR card. This misapprehension typically arises because of a misunderstanding of the difference between PR status and a PR Card. Let’s look at the card, to understand what it is, and what it does. PR Cards are issued in 5 year increments – and this fact is what often causes confusion, and a false sense of security. As hard as it may be to believe, the expiry date on a PR Card does NOT ensure that you can retain your PR status up to that date. Though it is can serve as a de facto form of evidence of PR status, the PR Card serves in large part to ensure that commercial carriers (typically airlines) have a basis on which to know whether a person may board a flight to Canada. Indeed, if one enters Canada in a private car, no PR Card is needed. Indeed further, a PR can live his whole life in Canada without a PR Card, as long as he doesn’t need to exit and re-enter. The fact that the card is issued for 5 years may be sufficient for the airline, but not necessarily for Immigration Canada.
So, to recap, no matter what the expiry date on your PR Card is, the residency requirements must be met for a 5 year period running backwards from the date of review, whenever someone encounters the immigration system. As noted, the most common time that people encounter the system is every time they arrive on an international flight (though there are other times, including when you apply to renew a PR Card).
The bottom line is that to satisfy the residency requirement, you need to consider the residency rules and time frames as set out above, not the PR Card, and satisfy the test every time you encounter the immigration system.
3. Note As Well – Citizenship is a Completely Separate Issue and the PR Rules Don’t Apply
One side point, which is that none of this discussion impacts the residency requirements for citizenship. As hard as it is again to believe, the residency requirements for citizenship are different. Without a full discussion in this article, it will involve 4 years’ physical presence in Canada in the 6 years preceding application. Things like being abroad with a Canadian citizen won’t necessarily count. (Note that changes to citizenship laws are expected in the near future.)
As noted, the issue of PR Card vs. PR status is very misunderstood, and failure to understand can lead to dire consequences, including the revocation of your PR status. DO NOT rely on a PR Card as an irrevocable ‘ticket’ to Canada. A person must track his/her time and/or actions (and be able to verify them) for the 5 years back when you encounter an officer – with or without a valid card. Recognize as well, that it is 5 years only; that is, you can’t say ‘but if you look back over the course of 6 years, I was here for 3, so I’m ok’. You cannot go further than 5 years back. Time may be added to the front (i.e. most recently), but time also falls off the back (i.e. prior to 5 years), as you move along (which also means that a short return to Canada won’t necessarily help you).
We hope this illuminates the issue, and anyone with questions should seek proper counsel. Proceed with caution.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.