Appealing a residency obligation decision made outside Canada

​​​​Canada's immigrati​on law says that a permanent resident must be “physically present in Canada” at least 730 days in every 5-year period. The law makes exceptions for permanent residents who were outside Canada during this period for allowable reasons.

If an immigration officer has decided that you did not comply with this rule, you may have a right to appeal to the Immigration Appeal Division (IAD).

This is called a residency obligation appeal. The date to start counting the 5 years is the date you asked for a travel document to come back to Canada.

To win your appeal, you have 3 options:

• prove that you were in Canada for the required time
• prove that you had an “allowable reason” for being out of Canada
• show that there are humanitarian and compassionate reasons for your appeal, even if you did not comply with your residency obligation

 Below you will find important information that can help you prepare to make your appeal.

On this page

• Prove that you were in Canada for the required time
• Prove that you had an allowable reason for being out of Canada
• Show that there are humanitarian and compassionate reasons for your appeal
• Provide evidence that will help you prove your H and C reasons
• Possible outcomes of an appeal

Prove that you were in Canada for the required time

If you believe that the officer's decision was wrong because you did live in Canada for at least 730 days during the five-year period prior to your application, you must prove this.

You can use documents that show you were physically present in Canada during this time. You may also have witnesses who can testify that you were in Canada for the required time.

Even if you believe that you did live in Canada for the required time, be prepared to show that there are humanitarian and compassionate reasons for your appeal

Prove that you had an allowable reason for being out of Canada

There may be reasons why you were outside Canada that the law allows. If you can prove this, the time you were outside Canada can be added to the time you were physically present in Canada. This could fulfil your residency obligation.

Allowable reasons:

• Being sent to work full-time outside Canada by a Canadian employer with the expectation to return and resume your employment in Canada.
• Going with a spouse, common-law partner or parent who is a permanent resident and who is sent to work full-time outside Canada by a Canadian employer with the expectation that they will return and resume their employment in Canada. A child can make this case only if they were a dependent child of the working parent at the time they lived outside Canada.
• Living outside Canada with a spouse, common-law partner or parent who is a Canadian citizen. A child can make this case only if they were a dependent child of the Canadian citizen at the time they lived outside Canada.

If you think one of these exceptions applies to you, check the wording in the law to make sure:

• Subsection 28(2) of the Immigration and Refugee Protection Act (IRPA)
• Section 61 of the Immigration and Refugee Protection Regulations

You must provide evidence such as witnesses or documents that support the reason you are relying on.

Even if you believe that you had an allowable reason for being out of Canada, be prepared to show that there are humanitarian and compassionate reasons for your appeal

Show that there are humanitarian and compassionate reasons for your appeal

You may be able to show the IAD that there are enough humanitarian and compassionate reasons for your appeal to be allowed, even if you were outside Canada longer than the law permits and your situation doesn't fall within the allowable reasons.

 Here are some factors that the IAD may consider reaching a decision:

• the length of time you have lived in Canada (before and after becoming a permanent resident)
• how established you are in Canada (for example: your assets in Canada; activities and jobs held in Canada; community involvement in Canada)
• the reasons why you left Canada and why you remained outside Canada so long
• whether you tried to return to live in Canada as soon as you could
• if you left as a child, whether you tried to return as soon as you turned 18
• whether you will suffer any hardship because of losing your permanent resident status
• the impacts on your family members in Canada if you were to lose your permanent resident status
• the best interests of any child who will be directly affected by the loss of your permanent resident status
• the supports you have in Canada from family and others in the community
• any other unique or special circumstances

Provide evidence that will help you prove your humanitarian and compassionate reasons

Your evidence for humanitarian and compassionate reasons can take the form of documents or testimony from you or your witnesses.

Show that you are established in Canada

Prepare evidence that shows how firm your roots are in Canada, such as:

• letters of support from family, friends, or employers that describe the closeness of your relationships in Canada
• proof of employment, tax returns, letters from organizations where you did volunteer work, banking and mortgage documents showing assets you have in Canada

Provide medical evidence

If you have a serious physical or mental illness, provide medical reports and evidence to help the IAD understand your situation.

Explain how family or children will be affected

If you have a family member who will be affected by the decision because they are in poor health, provide medical documents that show this.

If there are children who will be directly affected by the decision, provide documents such as:

• birth certificates
• custody orders
• evidence of financial and emotional support you provide
• evidence that the decision​ would impact a child's best interests. For example, the physical or mental health of a child.

Explain if you would suffer hardship in your home country

Evidence about the current situation in your home country can be helpful if it affects you. This might have to do with any special needs you have.

The IRB publishes National Documentation Packages that detail conditions in many countries. You may find evidence that is relevant to the hardship you may face in your home country if you were removed from Canada. You must provide copies of the documents you are referring to.  You can also provide your own evidence and documents from other trusted sources.

Possible outcomes of an appeal

When you appeal a decision that you have not complied with your residency obligation to the IAD, there are two possible outcomes:

• Your appeal can be dismissed. This means you lose your permanent resident status.
• Your appeal can be allowed. This means you retain your permanent resident status.