Can I still claim resident status? - News - Jamaica Gleaner - Tuesday | September 10, 2013

Can I still claim resident status? - News - Jamaica Gleaner - Tuesday | September 10, 2013

Dear Ms Powell,

In 2007, I was sponsored by my father to go to Canada. I completed high school and started university in 2011 when my mother got very ill with cancer. I am her only child and so I returned to Jamaica to help her. She died last month and I now want to return to Canada to continue my studies. I had a part-time job while I was in school and my employer said I could get back my job. My father and stepmother said that it didn't make sense for me to try to return and that immigration would turn me back at the airport as I had stayed too long. Is that true? I had no choice but to return to take care of my mother at the time. What can I do to ensure that I can return? Please answer quickly as I'm very worried. Thank you.

- K.L.

Dear K.L.,

My condolences to you and your family for the loss of your mother. It appears from your letter that you were a landed immigrant  in Canada in 2007 and therefore you have a right to return to Canada, provided that you have a valid permanent resident card. 

As a landed immigrant and permanent resident, it is your duty to ensure that you are physically present in Canada a minimum of 730 days during a five-year period. That is usually the time span of your permanent resident card, which is renewable.

Your first step should be to count the number of days that you have been physically absent from Canada in the last five years to see if you have actually exceeded the '730 days recidency requirement". If you have not exceeded the number of days, then you need to return immediately in order not to further complicate your situation. You will only need to present your card as proof that you are a permanent resident and will not need to answer any residency questions.

Explanation

It appears from your letter, however, that you may have stayed in Jamaica on a continuous basis to care for your mother from 2011 to 2013. That is approximately 730 days. So strictly speaking, you may not meet the 730-day residency requirement under S. 28 of the Immigration and Refugess Protection Act (IRPA).

This is usually not an issue until you have landed in Canada and appear before an immigration officer. The officer will first review your documents and residency history over the last five years to determine if you meet the residency requirements. If the immigration officer deems that you have not met the residency requirement, then his next step should be to ask for an explanation of this.

At this point, you will need to give an explanation, and so you should go prepared to present your reasons and have supporting documents.

There are several things that the immigration officer could examine to determine the issue. In your particular case, you may be asked if your mother was a Canadian citizen. If she was, then you have nothing to fear and should ensure that you have proof of her Canadian citizenship and death certificate with you.

If your mother was not a Canadian citizen, all is still not lost as at this point, the immigration officer may examine if you have other reasons to justify your absence. If he deems that you do not have good reasons for your absence, he may write a report that you have failed to meet the residency requirement and should give you information on how to appeal his decision.

You should then appeal the decision on the basis of humanitarian and compassionate grounds. Your case will be examined on its merits to determine if you had wilfully and knowingly abandoned your permanent resident status or if there are grounds to grant you special relief.

If you think you may face difficulty with an immigration officer, ensure that you travel with documents to support your case. You may require a letter from your school, your employer, and other family members such as your father and stepmother. I trust that they will be supportive if you need them.

My only other concern for you at this time is whether your permanent resident card has expired. You should note that if your permanent resident card has expired, that does not mean automatic revocation of your permanent resident status, however, you will need to first make an application to renew it before seeking to travel back to Canada.

When you submit your application to renew the card, you should present a copy of your mother's death certificate and supporting documents to explain your reasons for being outside of Canada for an extended period. You should also present proof of intentions to return to university and your part-time job.

Don't be discouraged. All is not lost. Chin up! You provided invaluable support to your mother during her illness and you should be proud of that. I hope that your family is proud of you and will assist you in your efforts to return to university in Canada. If you need additional advice and assistance with your applications, consult an immigration lawyer.

Deidre S. Powell is a lawyer, mediator and notary public who is a member of the Jamaican and Ontario, Canada bars, with office located in Ottawa, Ontario. Her areas of practice are in immigration, real estate, commercial, personal injury, family and administration of estates. She is on the roster of mediators for Ottawa, Toronto and the Dispute Resolution Foundation of Jamaica. Email: info@deidrepowell.com. Subject-line: Immigration