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By, Muhannad Samara | Immigration Consultant
Updated March 11, 2021 05:14 am EST

Permanent Residents of Canada who lack compliance with the residency obligation at the end of their residency cycle, may still have a chance at restoring their status.

Section 28 of the Canadian Immigration and Refugee Protection Act defines the residency conditions Permanent Residents must meet in order to qualify for the renewal of their Permanent Residence status. This condition is technically defined as the “Residency Obligation”. Amongst other conditions, the residency obligation stands as the most crucial aspect an immigration officer considers before making a decision on a renewal application.

Section 28 offers five grounds upon which an officer can make a decision on the residency obligation.

The grounds are:

1. Physical residence in Canada for the period of 730 days
2. Employment of the Permanent resident outside Canada by a Canadian business
3. Companionship of a spouse, to a permanent resident who is employed outside Canada by a Canadian business
4. Companionship of a Permanent resident to a spouse who is a Canadian citizen, outside Canada.
5. Humanitarian and Compassionate grounds that may justify lack of compliance and where the officer decides on the retention of the status.

The purpose of this article is touch on the surface of the 5^th ground. The fifth ground is defined under section A28(2)(c).

An application to renew Permanent Residence status for someone who has failed to meet the residency obligation, due to compelling circumstances that precluded him/her from residing inside Canada, and where those circumstances are bona fide, may have a shot at a positive decision by an officer.

A quick review of the Immigration and Refugee Board “IRB” decisions (that are made public at the Canadian Legal Information Institute CanLII https://www.canlii.org/en/ca/irb/ ) demonstrate the overwhelming number of requests made by the general public in sought of an appeal, where the appellants do not really have any grounds the fit the Humanitarian and Compassionate Grounds tests.

Permanent Residents who have failed to meet the residency obligation are strongly recommended to thoroughly, and accurately, describe the circumstances they assume were compelling to an experienced legal practitioner who has previous exposure to the Immigration Appeal Division practices and who possesses an unbiased demeanor towards the Permanent Resident’s circumstances.

Applications for PR status renewal, under H&C grounds are extremely technical, and require very high levels of professional analysis, accurate articulation and narration of the facts that gave rise to the H&C circumstances, in order for an officer to consider the request. In many cases, and even if an H&C application is approved, the department of Immigration, Refugees and Citizenship Canada may still request that an applicant appears in person to collect his/ her Permanent Residence card. In such instances, an interview is usually held, where the applicant is requested to present certain documentation and answer some questions.