In order to maintain status, a permanent resident must comply with the residency obligation set out in s.28 of the IRPA. With some limited exceptions, this means being in Canada for 2 years out of every 5 year period.
Non-compliance carries with it a risk or jeopardy to status. Section 41 of the IRPA establishes a ground of inadmissibility for the breach of the residency obligation. An Officer (inside Canada or at the POE) can prepare a section 44 Report asserting same. If the person concerned wishes to appeal, the matter will be heard by the Immigration Appeal Division (IAD).
The IAD has equitable discretion to grant relief notwithstanding inadmissibility/ineligibility.
As reiterated in the IRPA, section 28(c) the best interests of any child directly affected is always a primary consideration in humanitarian assessments under the Act. In addition, the jurisprudence has also developed a non-exhaustive list of factors the IAD can look to in such cases, including:
|Extent of non-compliance with the residency obligation/how much is short-fall?|
|The reasons why the appellant left and remained outside Canada (remember the element of choice will be relevant here)|
|Whether efforts were made to return to Canada at the first opportunity (and reasons why not)|
|The appellant’s degree of establishment in Canada|
|The appellant’s family in Canada and the impact to the family that loss of status would cause|
|The degree of hardship that would be caused to the appellant by the loss of their status in Canada|
|The best interests of any children affected by the decision|