International Law

Appeal to the IAD: Breach of the Residency Requirement

By immlawyer

IRPA allows permanent residents to appeal removal orders made against them. Removal orders can be made against permanent residents on a number of grounds. In my experience, misrepresentation and criminality are the most common; followed by a breach of the residency obligation. A permanent resident (PR) can appeal the removal order to the Immigration Appeal Division (IAD), an administrative tribunal.

After becoming a PR, an individual must comply with a defined residency obligation (in essence, and with some exceptions, to be in Canada 730 days in a five year period -- Note, except for the initial 5 year period, the officer will calculate whether residency had been met for the 5 years preceding the date of the examination). Should a determination be made (within Canada, at a POE, or outside Canada) that a PR has not complied with the residency requirement, a departure order may be issued. The PR has the option of appealing that determination both on legal grounds and on discretionary grounds. In my experience, it is usually conceded that the departure order is valid in law and evidence is presented to establish the existence of humanitarian and compassionate grounds to justify special relief.

The concept of 'abandonment', whether it can be said that the PR intended to leave Canada permanently, is still relevant in the IAD's review on humanitarian and compassionate discretion. The other (non-exhaustive) factors that are commonly considered includes:

1. the extent of the non-compliance with the residency requirement;

2. the reasons for the departure from Canada;

3. the reasons for the stay abroad;

4. whether attempts to return to Canada were made at the first opportunity;

5. the degree of establishment in Canada; both initial and continuing;

6. family ties to Caand whether they are sponsorable;

7. hardship and dislocation that would be caused to the appellant and/or his/her family in Canada if the appellant were to be removed;

8. the best interests of a child directly involved; and

9. whether there are other unique or special circumstances that merit special relief.  

Note, the appellant may wish to request the IAD to grant a stay of the removal order pusuant to s.68; allowing the appellant to establish her intentions to reside permanently in Canada.

Some notes on the factors:

• If the appellant can provide a reasonable explanation for his/her departure and indicates or establishes that the absence was not permanent (intention), this would be a positive factor in their favour; and
• Long term establishment in Canada prior to the departure may suggest that the appellant did not intend to abandon Canada.

Full post as published by Canadian Immigration Blawg on May 19, 2010 (boomark / email).