Filipiniana News – August 2012
RHYME & REASON
A recent
controversial bill introduced in Parliament is called the “Faster Removal of
Foreign Criminals Act”. If one were to
rely solely on the bill’s title, it seems that only non-Canadians and permanent
residents will be affected by the proposed changes. However, a closer review of the bill’s
contents will reveal that even permanent residents are included in the
definition of “foreign criminals”. If
anything, this bill reminds us that “permanent residence” in Canada is not so
permanent after all.
Canada’s
immigration laws underwent a major overhaul when the Immigration and Refugee
Protection Act (IRPA) was enacted in June 2002.
Nearly ten years hence, several misconceptions still abound regarding
the requirements and guidelines for maintaining one’s permanent resident
status.
When permanent
resident (PR) cards were created, many thought that as long as they possess
valid PR cards, their status as permanent residents will be safe. This is not necessarily true. Conversely, the lack of a valid PR card will
not necessarily negate one’s permanent resident status. As a general rule, permanent residents are
required to meet the residency obligation of 730 days within the last five-year
period to maintain their PR status.
Under IRPA, the
residency obligation may be satisfied in any of the following ways:
1. physical presence in Canada;
2. if outside Canada accompanying a Canadian
citizen spouse or common-law partner or is a child accompanying a parent
3. if outside Canada and employed full-time
by a Canadian business or in the public
service of Canada or a province
4. if an accompanying spouse, common-law
partner or child of a permanent resident who is employed full-time by a
Canadian business or is in the public service of Canada or a province.
Although the
residency requirement has become less stringent than the former
six-months-for-every-year rule, there are other areas where physical presence
may still be important for permanent residents. One of these areas is that of maintaining
provincial health insurance coverage in Ontario which requires physical
presence in Canada for at least 153 days (approximately five months) every
year.
Still, there
are some recurring situations where permanent residents learn too late that
their “permanent resident” status in Canada is not so “permanent” after all.
For instance,
those whose PR cards have expired, who do not satisfy the residency requirement
and are outside of Canada, will have to apply for a travel document from the
nearest Canadian embassy or visa office to be able to return to Canada. For those who have failed to comply with the
residency obligation, this raises a problem as not only will the request for a
travel document be denied, but that the permanent resident status will be
revoked. This revocation of PR status
can be appealed to the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board. Aside from questions of
law and possible denial of natural justice, the IAD also has jurisdiction to
consider humanitarian and compassionate grounds in light of all the
circumstances of the case. However, the
chances of succeeding on appeal will depend on the evidence presented and the
presiding board member’s weighing of all factors involved.
Another matter
that could spell doom for one’s permanent resident status is that of
misrepresentation. If it is found out
that there was any misrepresentation of a material fact made in one’s
application for permanent resident status, this can be used as a ground to
initiate inadmissibility proceedings and may eventually lead to removal from
Canada. Some common examples of
misrepresentation involve falsified marital status or undisclosed criminal
records.
Unfortunately,
even seemingly “minor” criminal offences may mean the end of one’s permanent
resident status in Canada. At present,
IRPA’s definition of “serious criminality” which could render a permanent
resident inadmissible to Canada includes conviction for crimes which carry a
penalty of “at least ten years OR for
which a term of imprisonment of at least six months was imposed”. Thus, even the most mindless criminal acts may
lead to criminal inadmissibility if the crimes involved happen to be punishable
by at least 10 years although the actual sentence imposed is much lighter.
If the “Faster Removal of Foreign Criminals Act “ is passed in its
current form, permanent residents who are convicted of crimes in Canada for
which “a term of imprisonment of at least six months” (currently “two years”
under IRPA) is imposed, will lose their right to appeal their removal order
with the IAD. It is also proposed that
those who are convicted or committed an act outside Canada which is punishable
by a maximum sentence of at least 10 years in Canada, will also lose their
right of appeal with the IAD.
The above
situations are meant to illustrate that permanent residence in Canada is not as
permanent as some might think. Clearly,
the Canadian government may take steps to revoke one’s permanent residency
whenever certain conditions are not met or based on relevant legal or public
policy considerations.
(Please
note that the above information are for legal information purposes only and not
intended to provide specific legal advice.
If you have related concerns, it is strongly advised that you consult
with a legal professional to discuss your particular situation.)
The author is a Canadian immigration
lawyer and may be reached at deanna@santoslaw.ca.
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