The Impact of COVID -19 on Residency Obligations

During the COVID-19 pandemic, travel was severely restricted in Canada and around the world. Now that restrictions have been lifted, an unintended consequence of these measures has come to light for many people seeking to renew their permanent residency in Canada—namely a failure to meet their Residency Obligation.

What’s the Residency Obligation?

The Immigration and Refugee Protection Act (IRPA)[1] states that within any 5-year period, a Permanent Resident must spend at least 2 years physically residing in Canada. This 730-day requirement is commonly known as the “Residency Obligation”.

IRPA offers exceptions for Permanent Residents to meet the Residency Obligation even when not in Canada, such as the Canadian Business exemption, allowing fulfillment while working for a Canadian business abroad.[2] Additionally, the Immigration Appeal Division (IAD) can also restore Permanent Resident status based on humanitarian and compassionate grounds.[3]

How do COVID travel restrictions impact Residency Obligations?

Recently, numerous Permanent Residents lost their status due to Residency Obligation violations under IRPA. On appeal, they cite adherence to COVID-19 guidelines as the reason for their delayed return and request the IAD’s consideration, seeking status restoration on humanitarian and compassionate grounds.

During the pandemic, a strong “stay home” message prevailed, with the Prime Minister urging Canadians to return and avoid international travel in 2020, followed by similar pleas from the Health Minister in 2021.[4] The term “essential travel” was vaguely defined, causing confusion. Social stigma around pandemic-era travel discouraged Permanent Residents, as it was seen as selfish and risky. Many chose not to fly internationally.

Despite these directives, the IAD has been unsympathetic to the use of COVID-19 as a defense to failing to meet a Residency Obligation[5],  arguing that Permanent Residents were never under travel restrictions and could have returned to Canada anytime[6], implying an expectation for them to do so during the pandemic.

Recent IAD Rulings

In Li and Canada (Minister of Citizenship and Immigration), Re 2023 CarswellNat 2507[7] the appellant claimed that COVID-19 contributed to his failure to meet his Residency Obligation. The minister stated that permanent residents of Canada had been allowed to return from China during the pandemic. The appellant’s Permanent Residence status was revoked.

How do we reconcile the IAD’s treatment of COVID-19 arguments with the government’s travel advisories? Success with COVID-19 arguments hinges on strong evidence of prompt return to Canada and a genuine intention to stay permanently.

In Luo and Canada (Minister of Citizenship and Immigration), [8] the appellant convincingly demonstrated their prompt return to Canada, supported by evidence like a one-way ticket, a purchased home, and the severance of ties with their original country. This led to the court restoring the plaintiff’s Permanent Resident status on humanitarian and compassionate grounds.

COVID-19 brought uncertainty and prompted reconsideration of travel plans. Given these challenges, we recognize the difficulty of providing compelling evidence for an immediate return to Canada and a commitment to permanent residency. Presently, the law is unsupportive of COVID-related claims when individuals didn’t return promptly or intend to settle in Canada permanently. Each case is unique, and we’re here to assist.

For more information on Residency Obligations, or other immigration questions, please contact Bruce Harwood.

Special credit goes to our summer student, Lauren Sansregret, for her contributions to the extensive research and writing of this article.

[1] Immigration and Refugee Protection Act, S.C., 2001, c. 27, s. 28

[2] ibid at (2) (a) iii

[3] Immigration and Refugee Protection Act, S.C., 2001, c. 27, s. 67 (1) (c)

[4] https://globalnews.ca/news/6792961/coronavirus-social-distancing-canada/

[5] Mubengayi v. Canada (Citizenship and Immigration), 2022, FC, 1324, Nasserynia and Canada (Minister of Citizenship and Immigration), Re, 2022 CarswellNat 384, Randhawa and Canada (Minister of Citizenship and Immigration), Re, 2021 CarswellNat 3739, Singh and Canada (Minister of Citizenship and Immigration), Re

2020 CarswellNat 6761, Ross and Canada (Minister of Citizenship and Immigration), Re

2022 CarswellNat 4280, Khau and Canada (Minister of Citizenship and Immigration), Re, 2023 CarswellNat 1670

[6] Re: Wang and Canada (Minister of Citizenship and Immigration), 2023 CarswellNat 1762, Yang et Canada (Ministre de la Sécurité publique et de la Protection civile), Re 2022 CarswellNat 676, Li and Canada (Minister of Citizenship and Immigration), Re 2023 CarswellNat 250

[7] Li and Canada (Minister of Citizenship and Immigration), Re 2023 CarswellNat 2507

[8] Luo and Canada (Minister of Citizenship and Immigration),2021 CarswellNat 6042