Residency Obligation: Accompanying a Canadian Spouse Abroad

Riyaz, a 35-year-old permanent resident of Canada from the Maldives, recently landed a dream job in Singapore. However, he wondered if moving there with his Canadian citizen wife would affect his Canadian residency obligation. He knew the law allowed some exceptions, but he wasn’t sure about his case. Therefore, he began exploring the rules to avoid losing his status in Canada. The more he learned, the more confused he became about what “accompanying” his wife meant.

Understanding Residency Obligation Under A28

Under section A28 of the Immigration and Refugee Protection Act (IRPA), permanent residents must meet the residency obligation by being physically present in Canada for at least 730 days within five years. However, the 730-day requirement can be fulfilled through a combination of options. Below are the main options that count toward meeting the residency obligation:

• Physical Presence in Canada: Time spent physically in Canada.
• Accompanying a Canadian Citizen: Time spent outside Canada accompanying a Canadian citizen spouse or common-law partner (or, in the case of children, their parents).
• Employment Abroad: Time spent working abroad for a Canadian business or in the public service of Canada or a province.
• Accompanying a Permanent Resident: Time spent abroad accompanying a permanent resident working full-time for a Canadian business or public service who is your spouse, common-law partner, or parent.
• Humanitarian and Compassionate Grounds: Officers may consider humanitarian and compassionate factors in exceptional cases when evaluating residency compliance. Of course, the best interests of a child directly affected by their decision will be paramount to such analysis.

Each of these options contributes to fulfilling the 730-day residency requirement.

Residency Obligation Based on Accompanying a Canadian Citizen Spouse or Common-law Partner

The IRPA and IRPR allow permanent residents to meet their residency obligation by accompanying a Canadian citizen spouse or common-law partner outside Canada. Section A28(2)(a)(ii) of the IRPA states that a permanent resident may count days spent abroad if they accompany their Canadian spouse or partner. Moreover, R61(4) clarifies that the permanent resident must ordinarily reside with their spouse or partner during this time.

Each day spent living together abroad with the Canadian citizen spouse counts toward the 730-day residency requirement. Therefore, this provision offers flexibility for permanent residents who live abroad with their Canadian spouse. However, the permanent resident must maintain physical cohabitation with their spouse for the time abroad to qualify.

Therefore, this option provides an important alternative to physical presence in Canada for fulfilling the residency obligation.

Accompanying a Canadian Citizen Under ENF23

ENF23 is Chapter 23 of the Enforcement Operational Manual, which guides IRCC and CBSA officers in assessing the residency obligations of permanent residents. It explains how time spent outside Canada may count towards the residency requirement.

Section 7.5 of ENF23 explains that the term accompanying does not extend to explore who stays with who. Therefore, all the officers must consider is whether the permanent resident was “with” their spouse or common-law partner. However, before trusting this manual, consider the following:

• IRCC has not updated this manual since January 23, 2015.
• Operational manuals are guidelines for officers. They do not replace IRB or court decisions.
• We have multiple cases that explore this topic in depth.

The following two sections explore two court cases that illuminate the concept of “accompanying” in the context of residency obligation.

Ibrahim v. Canada: Residency Obligation Appeal

In Ibrahim v. Canada (2018), the appellant, Farid Ali Ibrahim, appealed a refusal for a permanent resident travel document. He had lived outside Canada in Djibouti for over eight years, claiming he met the residency obligation by accompanying his Canadian citizen spouse abroad. The Immigration Appeal Division (IAD) rejected his appeal, determining that he failed to meet the 730-day residency obligation required by section 28 of IRPA.

Definition of “Accompanying”

The IAD emphasized that simply living together does not automatically satisfy the requirement of accompanying under A28(2)(a)(ii). The court determined that Ibrahim’s Canadian spouse had followed him to Djibouti for his work. Therefore, it concluded that Ibrahim’s wife was accompanying him, not the reverse. This distinction invalidated his claim to meet the residency obligation. Moreover, this definition aligns with the following IRB decisions:

• Bai v Canada (Citizenship and Immigration), 2015 CanLII 102211 (CA IRB), <https://canlii.ca/t/gtmm0>
• Khan v Canada (Citizenship and Immigration), 2015 CanLII 99397 (CA IRB), <https://canlii.ca/t/grz8t>
• Smith v. Canada (Citizenship and Immigration), 2007 CanLII 67256 (CA IRB), <https://canlii.ca/t/1xb5j>

Physical Presence Requirement

IRB member clarified that to satisfy the residency obligation, the permanent resident must be physically present with their Canadian spouse. However, physical presence alone is insufficient if the purpose of the relocation is for reasons unrelated to the spouse. In this case, Ibrahim moved abroad for his employment, making the physical cohabitation secondary to his career decision.

Temporal Nexus Requirement

A temporal nexus refers to the close timing or sequence of events, ensuring that the permanent resident’s relocation occurs simultaneously or shortly after the Canadian spouse’s move abroad. The adjudicator in Ibrahim stressed the importance of a temporal nexus between the spouse’s relocation and the permanent resident’s stay abroad. Ibrahim moved to Djibouti first, and his spouse joined him later. This lack of temporal connection further undermined his claim to accompany his wife.

Yasmin v. Canada: A Recent Clarification on Accompanying a Spouse

The Yasmin v. Canada (2023) decision offers a recent exploration of the concept of accompanying a Canadian spouse. It reinforces the need for credible evidence to prove cohabitation and residence abroad with a spouse. In Yasmin, the appellant claimed she met the residency obligation by accompanying her Canadian citizen husband while living in Pakistan. However, the IAD dismissed her appeal due to inconsistencies in her testimony and lack of documentary evidence proving she lived with her spouse.

This case aligns with the principles established in Ibrahim v. Canada (2018), where the tribunal emphasized that the permanent resident must physically reside with the spouse and not just claim cohabitation. Like Ibrahim, Yasmin demonstrates that courts expect clear, consistent documentation to support such claims. While Ibrahim focused on who was truly accompanying whom, Yasmin further emphasized that unsupported claims and conflicting testimony would not suffice to meet the residency obligation.

Key Factors to Consider When Claiming Residency Obligation by Accompanying a Canadian Spouse

To successfully claim the residency obligation by accompanying a Canadian spouse or common-law partner, several factors must be considered:

1. Physically Residing Together: You must live with your Canadian spouse or partner outside Canada for the relevant period. However, simply claiming cohabitation is insufficient; you must demonstrate consistent presence together.
2. Temporal Nexus: Your relocation must align with your spouse’s move. Moreover, the timing of your move should reflect your purpose of accompanying them, not personal reasons like work.
3. Proper Documentation: Provide strong, credible evidence of cohabitation, such as leases, bills, and joint financial documents. Inconsistencies in evidence can lead to the claim being dismissed.
4. Intent and Purpose: Ensure your primary reason for residing abroad is to accompany your Canadian spouse or partner. Relocating for other reasons, like employment, may weaken your claim.
5. Consistency of Testimony: Be prepared to offer consistent, verifiable testimony that aligns with your documented evidence. Courts, nevertheless, weigh credibility heavily when assessing such claims.

By considering these factors and providing clear, consistent documentation, you can strengthen your claim for meeting the residency obligation by accompanying your spouse.

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List of cases:

• Yasmin v Canada (Citizenship and Immigration), 2023 CanLII 137405 (CA IRB), <https://canlii.ca/t/k3nd5>, retrieved on 2024-09-22
• Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), <https://canlii.ca/t/hst3d>, retrieved on 2024-09-22