2012: Year of the…residency investigation

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It’s almost Year of the Dragon. If I had to guess, from an immigration perspective, I would say 2012 is going to be the year of residency issues. Canada’s Minister of Citizenship and Immigration has vowed to investigate anyone suspected of obtaining permanent residence or citizenship fraudulently. Locally, we are seeing simple applications to renew permanent resident cards take 6 months or more. Many are being diverted to officers to scrutinize, which takes even longer. This is creating so many practical problems, I get depressed just thinking about them.

 

So how about some happy news? Well, not exactly happy, but a little info that some people don’t realize which could make someone, somewhere, happy. Here goes:

 

We get this question a lot – I am a Canadian living abroad with my spouse. We want to move back to Canada eventually so we want to start the immigration process. But what happens if we can’t find work in Canada or can’t stay for some other reason? Will my spouse lose his permanent residence status if we leave Canada?

 

The happy news is this: Once the spouse is a permanent resident of Canada, he (or she) can remain outside of Canada indefinitely provided he is accompanying a Canadian citizen abroad. Meaning, if the couple is together, the permanent resident’s status is safe.

 

This is often a surprise to people, so check out the actual section of the Immigration and Refugee Protection Act:

 

28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

 (2) The following provisions govern the residency obligation under subsection (1):

 (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

 (i) physically present inCanada,

 (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

 (iii) outsideCanadaemployed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

 (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

 (v) referred to in regulations providing for other means of compliance;

 So what this means is as long as the Canadian citizen is with the permanent resident outside Canada for at least 730 days in every five year period, their status is safe.

 

Of course, there is a catch:

 

1. Getting Permanent Residence in the first place: When the spouse applies for permanent residence with the Canadian citizen as his sponsor, the Canadian citizen has to prove and declare her (or his) intention to move back to Canada. In other words, the plan must be that the happy couple intends to live in Canada once the application is finalized.

 

2. Proving you were outside Canada with your spouse: This can be tricky, just like trying to prove you were in Canada for a given period of time is tricky. These days, passports and entry/exit stamps are often not enough. Phone bills and leases are often rejected. Even bank statements can be discredited by officers looking at the file who say, well anyone could have used your bank card.

 

Do you know what does work? Dental records, proof of attendance at medical appointments, the gym, hair and personal care appointments, etc. Sometimes it is hard to prove you were in (or out) of Canada during a particular period of time. But I always tell clients if you have documents to prove your teeth or hands or hair were in a given place at a certain date and time, that’s going to be as good as it gets.

 

3. Qualifying for citizenship: This loophole does not give the permanent resident the days required to qualify for Canadian citizenship. The residency obligation for citizenship is different than for permanent residence, so even though you can maintain your permanent residence status while living abroad, you will eventually have to come here and be physically present inCanadafor 3 out of 4 years to qualify for citizenship. Some very obscure exceptions do apply, but I am not going to go into them here.

 

So to all the Canadian citizens wanting to bring their spouses to Canada: go for it.