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Residency obligation appeal lawyer in Brampton

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Appeals and court reviews have short deadlines, often 15 to 60 days from the day you receive the decision. Call early.

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The short answer

A permanent resident must be in Canada for at least 730 days in every five-year period. If an officer outside Canada refuses your travel document for this reason, you have 60 days to appeal to the Immigration Appeal Division (IAD). If you get a removal order in Canada, the deadline is 30 days. The IAD can also look at humanitarian and compassionate grounds, meaning kind and fair reasons based on your situation.

Who this is for

This page is for permanent residents of Canada who were told they did not meet the residency rule. It is also for people who fear they will be told this.

Many people in this situation spent a long time outside Canada. Some cared for a sick parent. Some ran a family business, finished school, or waited out a family crisis. Some did not know the rule existed.

The rule says a permanent resident must be in Canada for at least 730 days in every five-year period. The days do not need to be in a row. This rule is in section 28 of the Immigration and Refugee Protection Act (the Act).

Some days outside Canada also count. Two examples:

  • days spent with a spouse or common-law partner who is a Canadian citizen
  • days working full time outside Canada for a Canadian business or the Canadian public service

An officer usually finds that you did not meet the rule in one of three places:

  • At the border

    A border officer questions you when you return to Canada and writes a report. A removal order may follow.

  • When you apply for a travel document from outside Canada

    You apply to a visa office for a permanent resident travel document (PRTD). It is refused because of the residency rule.

  • When you apply for a PR card in Canada

    Immigration, Refugees and Citizenship Canada (IRCC) counts your days while it processes a new card. It may send the file for enforcement.

A finding that you broke the rule does not take away your status right away. You stay a permanent resident while an appeal is open. That is why the appeal matters. It is also why your first steps matter.

How it works

1. Find out exactly what decision was made

The route depends on where the decision was made.

  • Decision made outside Canada

    A visa officer refused your PRTD because you did not meet the residency rule. You appeal this as a residency obligation appeal under section 63(4) of the Act. You lose permanent resident status only when this decision becomes final. So the appeal keeps your status alive.

  • Decision made in Canada

    You were questioned at the border or inside Canada. An officer wrote a report, and an official may make a departure order. That is a removal order. You appeal it as a removal order appeal under section 63(3). The order does not take effect while the appeal is open.

2. File the notice of appeal

You send the notice of appeal to the Immigration Appeal Division (IAD), with a copy of the decision. The IAD is part of the Immigration and Refugee Board, an independent tribunal. Filing the notice starts the appeal and protects your rights. Evidence comes later.

3. The appeal record and disclosure

The government prepares the appeal record. It includes the officer’s notes, your travel history and what you sent in. Each side then files its documents and witness details by the deadlines in the IAD Rules. The IAD must receive witness details at least 30 days before the hearing.

4. Early resolution or hearing

Some appeals are chosen for an early resolution meeting. This is also called alternative dispute resolution. It includes a government lawyer, called Minister’s counsel, and a neutral officer. If Minister’s counsel agrees the appeal should succeed, it can end there.

If not, there is a hearing before an IAD member. You give evidence. Minister’s counsel asks you questions. Then both sides make legal arguments.

5. Attending from outside Canada

If you are outside Canada, you will usually take part by video or phone. The IAD can order you to appear in person if it decides this is needed. An officer must then give you a travel document so you can attend. This rule is in section 175(2) of the Act.

6. The decision

If the appeal is allowed, the decision is cancelled and you keep your permanent resident status. If it is dismissed, you may be able to ask the Federal Court to review the decision.

Grounds of appeal

There are two grounds, or reasons, for an appeal. Most appeals argue both.

  • The officer got the days wrong

    You show that you did meet the 730 days. Maybe the officer counted wrong. Maybe they ignored days that count, such as time with a citizen spouse. Or maybe they relied on incomplete travel records.

  • Humanitarian and compassionate grounds

    This means kind and fair reasons based on your situation. You accept that you were short of days. You ask the IAD to let you keep your status anyway, because of your circumstances. The IAD must consider the best interests of any child directly affected.

For humanitarian grounds, the IAD often looks at:

  • how many days short you were
  • why you were away, and whether the reasons were out of your control
  • whether you came back to Canada at the first reasonable chance
  • your ties to Canada (family, property, work, community) compared with your ties outside Canada
  • the hardship of losing status

Deadlines

These deadlines come from rule 16 of the Immigration Appeal Division Rules, 2022.

  • Residency decision made outside Canada (PRTD refusal)

    the IAD must receive the notice of appeal no later than 60 days after the day you get the officer’s decision.

  • Removal order made in Canada, including at the border

    the IAD must receive the notice of appeal no later than 30 days after the day you get the removal order.

  • Witness details

    at least 30 days before the hearing.

  • If the IAD dismisses the appeal

    you must file a leave application with the Federal Court within 15 days (IRPA section 72). “Leave” means permission for the court to hear the case.

What not to do

Do not sign a form to give up your status without advice. Giving up your status is called renouncing it. You lose permanent resident status when an officer approves your request to renounce it. This rule is in section 46(1)(e) of the Act. After that, there is nothing left to appeal. Some people are offered this form at the border. They sign it to avoid delay. If you want to keep your status, or are not sure, do not sign before you talk to a lawyer.

Do not let the deadline pass while you gather documents. File the notice first.

Do not assume a new PR card or PRTD application will fix it. A second application can lead to a second refusal. Meanwhile, the appeal deadline on the first one keeps running.

Do not travel in or out of Canada without advice while the issue is open. A new check at the border can start a new process. Airlines usually require a valid PR card or PRTD before you board a flight to Canada.

Evidence that matters

  • the refusal or removal order, and the officer’s notes
  • passports (all pages, current and expired) and any entry and exit records
  • proof of days outside Canada that count, such as your citizen spouse’s status and proof you lived together, or letters from a Canadian employer about full-time work
  • proof of why you were away: a family member’s medical records, death certificates, business or court documents
  • proof of ties to Canada: a lease or property, tax returns, bank records, a job, children’s schooling, family in Canada
  • proof of the steps you took to come back

Common problems

Short by a few days, or by years. How many days you are short matters. A small gap with strong reasons is different from years away with few ties to Canada.

Weak proof of why you stayed away. Saying a parent was sick is not enough. Medical records, care plans and proof that no one else could help carry weight.

No sign of a plan to come back. The IAD often asks if you came back at the first reasonable chance after the reason for staying away ended.

How Manny helps

  • He reviews the decision and counts your days. He tells you which kind of appeal you have and which deadline applies.
  • He files the notice of appeal before the deadline.
  • He gets and reviews the appeal record and the officer’s notes.
  • He builds the evidence on the day count and on humanitarian grounds. He files your documents and witness details on time.
  • He represents you at early resolution and at the hearing, by video if you are outside Canada. When it would help, he asks for an order that you attend in person.
  • If the appeal is dismissed, he can take the case to the Federal Court.

Consultations are available in English, Punjabi and Hindi. This page is general information, not legal advice. No lawyer can promise a result.

Frequently asked questions

A permanent resident must be in Canada for at least 730 days in every five-year period. That is two years out of five. The days do not need to be in a row. This rule is in section 28 of the Immigration and Refugee Protection Act. If you have been a permanent resident for less than five years, the question is whether you can still reach 730 days by your fifth anniversary. If you have been a permanent resident for five years or more, the officer looks at the five years just before the check. Some days outside Canada count as days in Canada. These include days spent with a spouse, common-law partner or parent who is a Canadian citizen. They also include days working full time outside Canada for a Canadian business or the public service. An officer can also decide that humanitarian and compassionate grounds justify keeping your status, even if you are short.

It depends on where the decision was made. A visa officer outside Canada may have refused your permanent resident travel document because of the residency rule. If so, the Immigration Appeal Division must receive your notice of appeal within 60 days after you get the decision. You may instead have been questioned in Canada, such as at the airport, and given a departure order. If so, you are appealing a removal order, and the deadline is 30 days after you get the order. Both deadlines are in rule 16 of the Immigration Appeal Division Rules, 2022. The IAD must receive the notice in time. Sending it is not enough. Read your decision carefully. If you are unsure which deadline applies, assume the shorter one.

No. For a decision made outside Canada, you lose permanent resident status only when the decision becomes final. If you file an appeal, the decision is not final until the IAD decides. For a decision made in Canada, you lose status when the removal order takes effect. If you appeal, the order does not take effect until the appeal is finally decided against you. You stay a permanent resident while the appeal is open. The main exception is renouncing, or giving up, your status. If you sign a request to renounce your status and an officer approves it, the status is gone. Then there is nothing left to appeal.

Most residency appeals are heard by video or phone, and you can take part from outside Canada. The Immigration Appeal Division can order you to appear in person if it decides this is needed. It hears from both sides first. This rule is in section 175(2) of the Act. If it makes that order, an officer must give you a travel document so you can attend. Your lawyer can ask for this order when your evidence in person matters. For example, it may matter when the case depends on whether you are believed. Do not try to come back another way without advice. A new check at the border can start a separate process.

The IAD looks at all the circumstances. It often looks at how many days short you were and why you were away. It looks at whether the reasons were in your control. It asks if you tried to come back at the first reasonable chance. It compares your ties to Canada with your ties outside Canada. It also looks at the hardship you and your family would face if you lost status. The IAD must consider the best interests of any child directly affected, such as a child living in Canada. Strong documents matter. These include medical records, death certificates, proof of property and work in Canada, and proof of family here. How much each factor counts depends on the facts. The IAD decides case by case.

Not without advice, if there is any chance you want to keep it. An officer may offer you a form to give up your permanent resident status. This is called renouncing it. It often happens at the airport or a visa office. It can look like a simple way to get a visitor visa or avoid a long process. But once an officer approves it, you lose your status under section 46(1)(e) of the Act. You also give up the right to appeal. For some people, renouncing is the right choice. For example, they may have no plan to live in Canada and want to visit freely. For others, an appeal with strong humanitarian grounds is worth it. Make that choice with all the facts.

Sometimes you are in Canada and the IAD dismisses an appeal of a decision made outside Canada. Then the IAD must make a removal order against you. If you were appealing a removal order, that order takes effect. Either way, you can ask the Federal Court to review the IAD’s decision. You must file for leave, meaning permission, within 15 days, because an IAD decision is made in Canada. The Federal Court does not decide the appeal again. It checks whether the IAD’s decision was reasonable and fair. If not, it usually sends the appeal back to a different member. Get advice on the reasons as soon as you get them.

This page is general information, not legal advice about your situation.

Sources

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