In today’s increasingly globalized world, many immigrants have trouble meeting Canada’s residency requirements for permanent residents.
Most permanent residences know that they are required to spend 2 years out of every 5 living in Canada in order to maintain their status, in what is commonly referred to as the “2 year out of 5 rule.” However, it is important to know that there are additional actions that count towards the “2 year out of 5 rule” in addition to physical presence in Canada. Section 28(2)(a) of Canada’s Immigration and Refugee Protection Act states that:
28. (2)(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means of compliance.
As noted in section (iii), the time that a permanent resident spends abroad working for a Canadian company counts towards the two-year out of five rule.
Working for a Business Abroad
The ability to maintain permanent residency while working for a Canadian business abroad is probably the most complicated way to satisfy the residency requirement.
In order to rely on this exception, permanent residents have to produce numerous documents in order to determine whether they are legitimately working abroad for a Canadian business. These documents include the Articles of Incorporation, the Corporate Annual Reports, the Corporation Notice of Assessment, other financial statements, the employee’s employment contract, and a job description.
Because of how vague the exception is, and how often individuals try to claim that they are encompassed by it, Parliament and the judiciary have set out several rules about what constitutes a qualifying assignment.
They are (source added after every rule):
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- The permanent resident must work for a business that is a corporation incorporated under Canadian laws that has an ongoing operation in Canada: Immigration and Refugee Protection Regulations (the “IRPR“) s. 61(a)
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- If the business is not a corporation, then it must be an enterprise that has an ongoing operation in Canada that is capable of generating revenue and whose goal is to make a profit and in which a majority of voting or ownership interests is held by Canadian citizens or permanent residents: IRPR s. 61(b)
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- In both cases above the business cannot serve primarily to allow a permanent resident to comply with their residency obligation: IRPR s. 61(2)
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- The permanent resident must be under contract to provide services to the Canadian business and be assigned on a full-time basis as a term of the employment or contract to a position outside Canada: IRPR s. 61(3)
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- To have time spent outside of Canada count toward the residency requirement, the permanent resident must be assigned temporarily, must maintain a connection with his employer, and must return to work for it in Canada following the assignment: Canada (Citizenship and Immigration) v Jiang, 2011 FC 349
Definition of Assigned
A thorny issue that has arisen in the context of determining whether someone meets this requirement is whether an employee has been “assigned” to an overseas affiliate of a Canadian business, and whether it was necessary for there to actually be an “assignment” from the Canadian business.
In Canada (Citizenship and Immigration) v. Jiang, 2011 FC 349, the issue before the Court was whether the Immigration Appeal Division had erred in determining that neither the Immigration and Refugee Protection Act or the Immigration and Refugee Protection Regulations required that an assignment of a foreign employee must be effected from Canada. In the Jiang case, a Canadian permanent resident living in China had been hired by a Canadian business while she was in China.
The relevant section of the Regulations reads:
Employment outside Canada
(3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to
(a) a position outside Canada;
(b) an affiliated enterprise outside Canada; or
(c) a client of the Canadian business or the public service outside Canada.
The Federal Court ultimately disagreed with the Immigration Appeal Division, and ruled that the word “assigned” in subsection 61(3) means that an individual occupying a position outside Canada on a temporary basis. It also requires that the individual be likely to return to Canada once the assignment is completed.
Training Sample
The following PDF obtained through an Access to Information Act request of IRCC training materials contains an example of how IRCC officers should assess whether someone has been assigned to a Canadian business abroad for the purpose of the residency obligation.
