Loss of Permanent Resident Status (18:VIII)

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 10, 2020.

It is possible for a permanent resident to lose their permanent resident status and can even be removed from Canada in certain circumstances. Further, a permanent resident may also voluntarily relinquish their status as a permanent resident.

A. Residency Requirement

A permanent resident must meet the residency requirements as outlined in the IRPA. Generally, a permanent resident must be physically present in Canada for 730 days out of every five years. If a person has been a permanent resident for less than five years, they must demonstrate at examination, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident. The residency requirements can be met in a few different ways. See s. 28 of the IRPA for full details.

NOTE: The onus is on the permanent resident to demonstrate with supporting documentation as considered necessary by an officer that they were physically present in Canada for the required number of days or have otherwise met (or will be able to meet) the residency obligation as prescribed in IRPA. The permanent resident also bears the onus of presenting documentation that is credible, in the opinion of an officer, to support any assertion(s) made by the permanent resident, or that may have been made on behalf of that permanent resident.

B. Inadmissibility

A foreign national or permanent resident can be determined “inadmissible” to Canada for several reasons, including, but not limited to, committing a serious crime or being found to have misrepresented information in their immigration application. Inadmissibility means that a foreign national or permanent resident has contravened the IRPA in some way, and will be issued a removal order.

There are three types of removal orders, which are discussed below.

If a permanent resident is determined inadmissible, he or she may lose their permanent resident status. The inadmissibility provisions relating to foreign nationals and permanent residents overlap for the most part, but there are some differences. For example, permanent residents will be inadmissible for serious criminality if they commit an indictable offence, while foreign nationals will be inadmissible for committing a less serious summary offence. Refer to the IRPA directly for specific grounds of inadmissibility (ss 34 – 43).

NOTE: Convention refugees are not inadmissible on the same health and criminality grounds as most other kinds of applicants, but they may be excluded in cases of serious criminality or crimes against humanity.

NOTE: A permanent resident sentenced to 6 months or more of incarceration (including time in custody awaiting trial) is inadmissible to Canada and does not have an appeal to the IAD of their removal. This means that permanent residents who are arrested and charged with crimes, even relatively minor ones, must ensure their criminal counsel are aware of this consequence from the beginning of criminal process. A conditional sentence does not equal imprisonment for the purposes of this provision and sentencing must be considered at the time of conviction (see Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50). Users of this manual should check for developments in this area of the law as it is undergoing continued legal development. See also XIII Immigration Issues at Sentencing.

© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.

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