Maintain Canadian Permanent Residency While Working Abroad

Katrin, a German citizen and Canadian permanent resident, recently accepted a job assignment in Hamburg from her Canadian employer. She now wonders if she can maintain her permanent residency while abroad. Fortunately, Canadian law offers options for permanent residents working outside the country. Therefore, Katrin may still meet her residency obligations despite living in Hamburg. However, this depends on several factors, including her employment status and the nature of her employer. Understanding these key points will help you, like Katrin, ensure compliance with Canadian residency rules.

Understanding the residency obligation

Under Section 28 of the Immigration and Refugee Protection Act (IRPA), permanent residents must meet their residency obligation by being physically present in Canada for at least 730 days within five years. However, there are several ways to meet this requirement, even while working outside of Canada. Here are the key options that count toward fulfilling the residency obligation:

• Physical presence in Canada: Time spent physically in Canada.
• Accompanying a Canadian citizen: Time abroad with a Canadian citizen spouse, common-law partner, or, for children, a parent.
• Employment abroad: Time spent working for a Canadian business or the Canadian or provincial public service abroad.
• Accompanying a permanent resident: Time spent outside Canada with a spouse, common-law partner, or parent employed full-time by a Canadian business or public service.
• Humanitarian and compassionate grounds: In exceptional cases, immigration officers may consider humanitarian factors, especially when a child’s best interests are involved.

Each option helps permanent residents maintain their status while living or working abroad.

Meeting residency obligations while working abroad

As mentioned above, section 28 of IRPA offers flexibility for permanent residents who work abroad. They can still meet their residency obligation under specific conditions, which immigration practitioners must carefully evaluate.

According to section 7.4 of chapter 23 of the IRCC Enforcement manual (ENF-23), a permanent resident can meet the residency obligation while working outside Canada. However, the employment must meet several key criteria.

• The permanent resident must be employed full-time by:
  • A Canadian business, or
  • The public service of Canada or a province.
• A Canadian business must meet one of the following criteria:
  • Incorporated under Canadian laws.
  • Have ongoing operations in Canada.
  • Canadian citizens or permanent residents hold the majority of ownership.
• Self-employed individuals do not meet the requirement unless:
  • They own a qualifying Canadian business, as mentioned above.

The Nature of the Employment

According to ENF-23, the assignment abroad must be temporary, and the employee must maintain their connection to Canada. Therefore, the employment arrangement must confirm that the individual will return to work in Canada after completing their assignment. Practitioners should ensure their clients gather sufficient evidence, such as employment contracts, pay slips, and a clear job description, to prove the ongoing connection with a Canadian business.

It’s also important to note that businesses created solely to help the permanent resident meet residency obligations will not qualify. Officers may request additional documents, such as corporate tax records or financial statements, to ensure the business is legitimate. Therefore, practitioners should advise clients to provide all required documentation to avoid complications during residency determination.

IRCC has not updated ENF-23 since January 2015. Therefore, the document’s age may not fully reflect current interpretations. Practitioners should stay aware of potential changes.

Exploring Permanent Residency Obligations in Acikgoz v. Canada, 2022 FC 772 (CanLII)

In Acikgoz v. Canada, the applicant, Ilgen Acikgoz, faced a removal order for failing to meet her residency obligation under the IRPA. She claimed that her husband’s employment with a Canadian business in Turkey allowed her to meet the residency requirement. However, the Immigration Appeal Division (IAD) found that the husband’s employment was fraudulent. The company, Mode Tricotto, had pleaded guilty to creating a false employment contract to help the applicant’s husband renew his permanent resident status.

The Court upheld the IAD’s decision, determining that Acikgoz had not met the required 730 days and that there were insufficient Humanitarian and Compassionate (H&C) considerations to overcome her non-compliance. The decision focused on whether the husband’s employment abroad was genuine, which was central to Acikgoz’s claim of residency compliance.

Factors for assessing the genuineness of a business

In this case, the Court highlighted several factors to assess the authenticity of employment with a Canadian business abroad. These factors serve as important guidelines for evaluating whether a business qualifies under Section 28(2)(a)(iii) of the IRPA.

1. Authenticity of the employment
   The Court emphasized the importance of proving that the job itself was real. In Acikgoz, the husband’s job was determined to be fraudulent, as the Canadian company involved pleaded guilty to creating a simulated employment contract. Therefore, it is critical to provide legitimate documentation that shows a real and ongoing job abroad.
2. Detailed and consistent documentation
   The applicant presented incomplete and inconsistent documents, which raised concerns about the legitimacy of the employment. Key documents, such as pay slips and bank statements, must be consistent and fully cover the employment period. Moreover, gaps in documentation or unclear evidence of salary payments may suggest that the job is not genuine.
3. Salary and job role
   The Court questioned the husband’s annual salary of $24,000 for a senior role in the business. The salary was not consistent with his professional experience or the family’s financial needs. Therefore, the salary must reflect the market rate for the position and align with the individual’s qualifications and experience.
4. Public profiles and professional history
   The Court examined the husband’s LinkedIn profile, which did not mention the employment with Mode Tricotto. This omission led to further doubts about the job’s authenticity. Therefore, officers may check public profiles or professional records to verify the consistency of the applicant’s employment history. (As a side note, if an officer based their decision on extrinsic evidence, they must issue a procedural fairness letter and allow the applicant to respond to their concerns.)
5. Consistency with personal and professional background
   In this case, the husband owned a family business and later invested in a coffee franchise. These facts raised questions about how he could simultaneously work full-time for another business. The Court found that the husband’s business history was inconsistent with his supposed full-time employment abroad.
6. Timing and travel patterns
   The applicant’s husband frequently travelled back to Canada during his alleged full-time employment abroad. Therefore, the Court questioned whether he could fulfill his duties with Mode Tricotto. A genuine full-time job abroad would require consistency in the individual’s location and availability.
7. Motive for employment creation
   Finally, the Court noted that Mode Tricotto created the employment contract specifically to help the applicant’s husband meet the residency obligation. This type of arrangement invalidates the claim, as Canadian businesses cannot be created or manipulated solely for immigration purposes.

What we learn from this case

In Acikgoz v. Canada, the Court upheld the removal order because the husband’s employment was simulated, not genuine. This case highlights how immigration authorities scrutinize employment abroad to determine whether it qualifies under Section 28(2)(a)(iii). Practitioners should ensure that all aspects of the employment are legitimate, well-documented, and consistent with the individual’s professional background.

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List of cases:

Acikgoz v. Canada (Public Safety and Emergency Preparedness), 2022 FC 772 (CanLII), <https://canlii.ca/t/jr9w4>, retrieved on 2024-09-29