How To Maintain Permanent Residence While Living Overseas

passportIt happens all the time.  An individual goes through the long (and sometimes painful) process of getting permanent residence.

But then life happens, things change, and the new permanent resident has to move home to take care of family, or live overseas for a variety of reasons.

There are a few circumstances where you can live overseas and maintain your permanent residence in Canada that I’ll discuss in this post.

Just to take a step back, let’s review the basic rule for maintaining PR: for every five year period from the time you received PR, you must be physically present in Canada for 730 days.  Every day counts – CIC will not accept 729 days.

But there are exceptions.

Part days in Canada

Any part of a day spent in Canada is considered a full day for the purposes of calculating the 730 day requirement.

This is extremely important for those residents who may be working in the United States, just across the border.  For example, individuals in South Surrey BC are only a few minutes from the US border, and some are employed by US firms.

So long as the resident is back in Canada within the day (a 24 hour period), then that part day counts as a full day in Canada.

Accompanying a spouse or common law partner (or parent) who is a Canadian citizen

If you (as a PR) accompany a spouse or common law partner who is a Canadian citizen outside of Canada, then each day outside Canada is considered to be a day physically present in Canada.

A child PR with a parent who is a Canadian citizen can also accompany that parent outside Canada and be considered physically present in Canada for calculating the 730 day requirement.

Accompanying a spouse or common law partner (or parent) who is a permanent resident

If you (as a PR) accompany a spouse or common law partner who is also a permanent resident, outside of Canada, you will considered to be physically present in Canada only if your spouse or partner is employed full-time by a Canadian business or in the public service of Canada or a province.

The same applies for a child PR of a permanent resident.

A “Canadian business” has a pretty broad definition for this rule, and includes incorporated business and other enterprises capable of generating revenue, with an anticipation of making a profit, and held by Canadians.

A business setup primarily in order to maintain permanent residence won’t fly – don’t do it.

It’s important to note that in this scenario, the PR spouse needs only be employed full-time by a Canadian business – not necessarily working overseas for a Canadian business (though that would count too).

So, for example, time spent away from Canada on holidays (while employed full-time) would count as days spent in Canada.

Permanent resident employed abroad

A permanent resident can maintain PR if he or she is employed abroad, subject to a few restrictions.

First and foremost, you must be a full-time employee of a Canadian business (or the public service) with the head office in Canada that controls assignments overseas.

In essence, this would entail working for a Canadian company with overseas offices that you were assigned to from the head office in Canada.

The interesting part of this exception is that is applies to those who have a contract with a Canadian business as well.  So you need not be a full-time employee – you can be a contractor as well working overseas for a Canadian business.

The other interesting part of this exception is that it includes assignments to an affiliated enterprise of the Canadian business or even a client of Canadian business overseas.

In these situations, days spent abroad are counted as days spent physically in Canada.

People who have been PR’s for less than 5 years

If you’ve been a PR for less than 5 years, you still have to worry about residence requirements.

Why?

Because they visa officer will determine if you could meet the residency requirement at the 5 year mark!

So for example if you get PR, then immediately leave the country for 3.5 years, the visa officer will determine you can only be resident for 1.5 years in the 5 year period since you received PR.

You will lose PR and you won’t be able to enter the country.  Not good.

Humanitarian and compassionate (H&C) grounds

This is a last ditch effort to retain PR – never rely on it as your primary strategy.

Let’s assume you haven’t met the 730 days.  You have to inform the visa officer that you want to be considered under H&C grounds to retain PR.

You need some compelling reasons, and tactically, showing an intent to remain a Canadian PR goes a long way (though not legally required).

You need to show “disproportionate” or “unusual and undeserved” hardship that a loss of PR would cause you or family members.  Typically it would include circumstances beyond your control.

Some factors that visa officers will consider are:

  • Medical condition of yourself or family members;
  • Any alternatives to caring for family members overseas who suffer from a medical condition;
  • Are your circumstances “compelling” and beyond your control?
  • Were you somehow prevented from returning to Canada?
  • Was the PR a child who left with a parent?
  • If you were a child with PR, did you return to Canada the earliest opportunity?
  • Are you a citizen or PR of another country? If so, it goes against you;
  • Had you established yourself in Canada – job? property?
  • What links have you maintained here?

This is a discretionary process, so make your best case to the visa officer.  It’s likely a good idea to hire a lawyer if you are in this situation before you make a case to the visa officer to ensure your case is the strongest it can be – you only have one shot.

Who has the burden to show the PR requirements were met?

This one’s easy – you do.

You have the entire responsibility to prove you meet the PR residence requirements to the satisfaction of the visa officer.  If you don’t have the evidence (even if you meet the PR requirements), then you will likely lose your permanent resident status.

What evidence should I present to the visa officer?

It is absolutely critical that every time you leave Canada, you maintain careful records of your travel.  This includes plane tickets, hotel bookings, visa stamps – anything that shows exactly how long you left the country for and when you returned.  Keep all of this information in one file.

It also helps to keep a personal journal of your travels, as a reminder to you, and as another piece of evidence you can present to the visa officer.

For example, start with 1825 days on the first page (5 years).  Then subtract days you are out of the country from that amount.  The number of days can never go under 730.  In fact, give yourself at least a week’s leeway – never cut it that close.  Include reference notes to evidence that supports your time away and time when you returned.  Keep the journal together with that evidence.

If you fall within one of the exceptions discussed above, be sure to keep detailed evidence.  If you are relying on the employment exception, keep your employment contract, the letter assigning you overseas (signed by your employer), and information on your employer, including it’s overseas offices.  Here are some other suggestions for supporting evidence:

  • information on the nature of the business, length of time it has operated in and the number of employees it has here and abroad;
  • clear description of your role overseas, including duration of assignment; and
  • details on the relationship between the Canadian business and the overseas office or client;
  • T4 slips, pay slips; and
  • business licenses, articles of incorporation and related documents.

Remember – it need not be a corporation.  Other enterprises count as well, including partnerships, proprietorships, and so forth.  Include the relevant documents for the enterprise you are working for.

Appeal rights

You can appeal a decision that you did not meet the residency requirements.  However, you need to file within 60 days of your written decision to the Immigration and Appeal Division.  If you fail to do so, you have no further recourse.

If you’ve found this article helpful, please feel free to share it with your social network, or link to it directly from your website or blog.  Thank you!

 

 

About the author

Gianpaolo Panusa Gianpaolo Panusa is a Canadian immigration lawyer, writer, and founder of the PanCanadian Immigration Law Group based in Vancouver, Canada. Google+ Profile


  • Danielle Colliver

    I’ve read the article but I still have a question. I am a Canadian citizen and a sponsor for my Australian common law spouse. Say we decide to go work in Australia for a year and i obtain some sort of work visa. Would the time he spends working in Australia (not for a Canadian company) while I’m accompanying him and also working count as days spent in Canada?