I do understand the requirement of RO for PR renewal but this is a new statement which you are saying if we are out of canada for more than 1095 days in five years we become out of compliances because one of my friend after getting PR he visited Canada for 1-2 months in the last 5 years and 3 weeks before expiry of his PR card he entered canada and stayed their for more than 3 years and now got his passport. Where does IRCC says if you are out side of canada more than 1095 days in last 5 years you are ineligible ?
@scylla,
@armoured, and
@rcincanada2019 have amply answered this, and
@rcincanada2019 in particular quoted IRCC's description of the PR Residency Obligation and cited with link the applicable statutory provision, which is section 28 in the Immigration and Refugee Protection Act, which again is here:
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-5.html#h-274598
While that amply answers your query, the latter, the statutory provision, demands particular attention and emphasis.
It is NOT IRCC that "says" what the RO is, what is within or not within compliance. The PR RO is LAW.
IRCC has NO SAY in what the RO is. IRCC is mandated to comply with the law, including in how it interprets, applies, and enforces provisions of LAW dictating a Permanent Resident's obligations, including their Residency Obligation. IRCC has no more
say in what the RO is than anyone else. IRCC's interpretation and application are subject to review by the IAD and the Federal Court.
Moreover, IRCC is not the only government agency applying and enforcing the PR RO. CBSA is also mandated to comply with IRPA including the statutory provisions prescribing the RO.
Meanwhile, while we tend to be rather casual in the language we use to describe how such laws affect PRs and FNs, the particular terms employed in statutory provisions is important. There is a big difference, in terms of the legal impact, between an "
obligation" and a "
requirement," and a "
condition." A residency "
obligation," for example, is far more flexible, and can be far more leniently applied, than a "
requirement," and generally requirements are less strict than conditions. Yeah, diving into an explanation of such differences is undoubtedly far more weedy and nerdy than will interest most here; just distinguishing what is self-enforcing alone gets complicated (the RO is not only not self-enforcing, in contrast it is self-curable). However, this is what underlies the variability and vagaries of RO enforcement, especially when the role of H&C relief is factored into the equation.
That said, what constitutes compliance itself is straight forward. As variable as enforcement can be, the RO itself is simple arithmetic. Count the days.
In particular, the law prescribes what days count as credit toward the RO, and how many are necessary to be in compliance. That is 730 days within the relevant five years. The references to 1095 days outside Canada (outside and not qualifying for one of the exceptions) is just simple arithmetic. There are 1825 days in five years. If a PR is outside Canada more than 1095 days, that means they have fewer than 730 days credit toward compliance. Again, the number is just arithmetic.
IRCC provides a very simple tool that will do the arithmetic for PRs. It is item 5 in the application for a PR card or PR Travel Document. All the PR needs to do is provide complete and accurate information, as to date they became a PR, date of calculation (typically the current date but this can be a hypothetical future date), and travel history. If this information is properly filled into the interactive pdf form, the form will calculate the total number of days OUTSIDE Canada. The form totals the number of days outside Canada. If that is less than 1095, the PR is in RO compliance. It also calculates days outside Canada not counting those which (according to what the PR enters into the form as reasons for absence) get credit as if IN Canada (like days accompanying a spouse who is a Canadian citizen), and here again if that number totals fewer than 1095 it indicates the PR is in compliance.
While being out of compliance meets the definition of inadmissible, that does not constitute a determination of inadmissibility. Being out of compliance means the PR is at risk of inadmissibility proceedings. That's a big subject, and I have gone long and deep about that process. Even the simple scenarios can be complicated, and beyond that it can and often does get very complicated. There are literally hundreds of official IAD decisions about this, and many dozens of Federal Court decisions as well. What we see in the forum, which reflects anecdotal reporting from many members of this forum, is that scores and scores of PRs benefit from how flexible and oft time lenient IRCC and CBSA are in applying and enforcing the RO. Many here would characterize the outcome for a lot of out-of-compliance PRs as "
lucky." But all that is about PRs who were not in RO compliance, that is those who were outside Canada more than 1095 days in the five years that count.
