Immigration Newsweek
By Atty. Henry Moyal
In June 2002, the Canadian government started issuing permanent resident cards (PR card) to new immigrants. Before then, landed immigrants were issued IMM1000 documents which were long pieces of paper that had no photo or bar codes. The law remains the same today – in particular, newly landed immigrants ( regardless of what program the applicant obtained PR) are issued PR cards that are valid for 5 years.
Under statutory rules, an applicant must by physically in Canada for at least 730 days out of the last five years in order to have the PR card renewed. The 730 days do not need to be continuous and there is no restriction on when the 730 are accumulated. Many have the mistaken belief that they must remain in Canada for six months immediately upon being immigrant. That is false. Others believe that they can renew their PR card without stepping foot in Canada. That too is false.
The truth is that a person must have resided in Canada for at least 2 years to have their PR card renewed. While there are some exceptions ( ie. accompanying a Canadian spouse or working abroad for a Canadian company) the rule is quite strict.
The question therefore is : what if an applicant did not comply with the 730 rule and card has expired?
If so, the waters get muddled and it can get complicated. The specific and best approach depends on each fact pattern. For starters, it is important to remember that a person cannot board a plane with an expired PR card. If a person is outside of Canada with an expired PR card they must either apply for a TD or try to land via a land border. In most cases, an applicant will not be able to board a flight and therefore will remain stuck abroad with an expired card. The best option therefore is to apply for a TD and then if refused to appeal the final determination. At appeal applicants are able to argue humanitarian and compassionate grounds to explain why there were absent from Canada for so long. A review of the case law however suggests that most judges will only approve such appeals in exceptional circumstances.
*As this discussion involves permanent residents it is important to mention a crucial proposed law that affects immigrants who are convicted of impaired driving – Bill C-46, the Impaired Driving Act, which is before the House of Commons.
Currently, someone convicted of impaired driving could receive a maximum penalty of not more than five years in jail, but the offence would still be considered “ordinary criminality” under immigration law. An immigrant’s permanent residence status is not affected unless a sentence of six months or more is imposed. However, under Bill c-46, the increased maximum penalty to 10 years would automatically classify impaired driving as “serious criminality.” As a result, even if a first offender, who is not a Canadian citizen, is convicted and is only ordered to pay a fine, they would still lose their immigration status and be banned from Canada. This would affect foreign students, workers, visitors and permanent residents.
Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.
The above article is general advice only and is not intended to act as a legal document.
Send questions to Attorney Moyal by email canada@moyal.com or call 416 733 3193
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