RETAINING YOUR PERMANENT RESIDENT STATUS

Transcription

1 RETAINING YOUR PERMANENT RESIDENT STATUS Metro Toronto Chinese & Southeast Asian Legal Clinic 180 Dundas Street West, Ste 1701 Toronto, Ontario M5G 1Z8 Telephone: Fax:

2 After you become a permanent resident of Canada, it is important to know how to retain this permanent status until you can apply for citizenship. The three main reasons why a person loses his or her permanent resident status is by being convicted of criminal offences(s), by not living in Canada long enough after becoming a permanent resident and by misrepresenting information to Canada Immigration. 1. CRIMINALITY AND IMMIGRATION Criminal convictions can have a long-term negative affect on your immigration status. When the new immigration law came into force in 2002, it became a lot easier to become criminally inadmissible to Canada with more serious consequences. According to the Immigration laws of Canada, permanent residents (i.e. a person who is not a Canadian citizen but has the legal right to live permanently in Canada) and foreign nationals (i.e. those who do not have permanent legal status in Canada like visitor, foreign students, temporary workers) who have been convicted either in Canada or abroad of certain criminal offences may be denied admission to Canada or deported from Canada if they are criminally inadmissible. Criminal offences under Canada s criminal code are divided into three kinds: indictable offences which are the more serious offences and which carry longer terms of imprisonment, summary convictions which are the less serious offences usually punishable by less than 2 years imprisonment and hybrid offences which can be prosecuted as either indictable or summary offences. Most offences in the Criminal Code are hybrid offences and it is the crown attorney or prosecutor (the lawyer who is representing the Canadian government in prosecuting the offence) to decide whether the offence will be treated as summary or indictable. According to the Immigration law, a permanent resident or foreign national is inadmissible to Canada for serious criminality if they are convicted in Canada of an offence punishable by a maximum term of imprisonment of at least 10 years or of an offence for which a term of imprisonment of more than 6 months was imposed. For example, assault with a weapon is a hybrid offence and if prosecuted as an indictable offence, is punishable by a maximum term of 10 years imprisonment. If for instance, while you are arguing with someone and you grab an object and throw it at that person, you could be inadmissible to Canada for serious criminality. In addition, a foreign national can also be criminally inadmissible to Canada if they have been convicted in Canada of a) an indictable offence or b) two offences not arising out of a single occurrence or c) convicted outside of Canada of an offence that if committed in Canada would constitute an indictable offence under our Criminal code or of two offences not arising out of a single occurrence that if committed in Canada would constitute offences under our Criminal code. Retaining your permanent resident status page 2 January 2012

3 Unfortunately, according to the Immigration laws now, if the offence you were convicted of is a hybrid offence, it will be treated as an indictable offence even if it was prosecuted summarily. Thus, Canada Immigration will automatically treat minor offences as major offences. What are the consequences of being criminally inadmissible to Canada? If you are a permanent resident who is criminally inadmissible to Canada for serious criminality, you could be deported from Canada. If you are a foreign national who is inadmissible because of serious criminality or criminality, you cannot be given landed immigrant status until you have proven you are rehabilitated or pardoned. A foreign national who was convicted outside of Canada of an offence is considered rehabilitated if 5 years has passed since completion of any sentence for that offence and the person has demonstrated they have rehabilitated by not committing any more offences, living a stable lifestyle and showing remorse for their offence. For offences committed in Canada, a pardon can be issued by the National Parole Board of Canada for the offence. You can apply for a pardon if 3 years has passed since completing the sentence for a summary offence, 5 years for an indictable offence and you have not had any other new charges or convictions during the 3 or 5 years. Permanent Residents If you are criminally inadmissible to Canada because of serious criminality, Canada Immigration will arrange an interview for you to decide whether a report should be written to have you appear at a hearing. At this interview, all of the circumstances of your life, past and present will be examined. You have the right to bring a legal representative to the interview and any supporting documentation or evidence which you think will demonstrate why your permanent resident status should not be taken away. For example, the best interests of your dependent children in Canada will be affected, the offence was an isolated incident for which you feel great remorse and you would suffer great hardship if forced to return to your country of origin are all reasons that can be presented to Canada Immigration. If after the interview, a decision is made to write the report, you will be asked to appear at an admissibility hearing. At that hearing, the Immigration adjudicator will decide if you have contravened the Immigration Act by being convicted of an offence seen as serious criminality. At the hearing, if indeed there is proof of conviction of such an offence, a removal order will be issued. The Adjudicator has no discretion to look at all of the circumstances of your case. After the removal order is issued, you have the right to appeal the removal order to the Immigration Appeal Division which has the power to hear evidence about all the circumstances of your case and why you should not be deported. However, if your sentence resulted in a jail term of two years or more, you lose your right to appeal to the Immigration Appeal Division. With the way the Immigration Act treats criminal inadmissibility, it is very important if you have been charged with a criminal offence and are a permanent resident or foreign national to understand how your sentence and the way the offence is prosecuted will affect your immigration status. Retaining your permanent resident status page 3 January 2012

4 Your criminal lawyer should also be made aware of your immigration status so that he or she can best decide how to defend you to avoid dire immigration consequences. For example, the length of your imprisonment is very important and how the offence is tried, whether summarily or by indictment. Also, if possible, instead of conviction, your lawyer can try to bargain for a discharge instead for more minor offences because discharges will not lead to criminal inadmissibility. 2. RESIDENCY REQUIREMENTS FOR RETAINING YOUR PERMANENT RESIDENT STATUS After you become a permanent resident, you must stay in Canada for a certain amount of time in order to retain your permanent resident status. The general rule is that you must have 730 days of residence in Canada within any five year period. This means, at any time when you enter Canada after a period of absence, the port-of entry immigration officer could ask you about your absences from Canada in the past five years. If you have been a permanent resident for less than five years, the port-of-entry officer could tell you how many days you need to remain in Canada in the coming years in order to retain your status. For example, if you became a permanent resident in 2003 and left Canada returning in 2006, upon re-entry, the port-of-entry officer may caution you that you need to accumulate 2 years of residence in Canada in the next two years in order to retain your status. Other than actual physical presence in Canada, time spent outside of Canada under the following circumstances can also be counted as residence: accompanying a Canadian citizen spouse, common-law partner or child ; or employed on a full-time basis by a Canadian business or in the public service of Canada or of a province ; or accompanying a permanent resident spouse or common-law partner and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province. Keeping this in mind, a person re-entering Canada after a period of absence should do their own calculation in order to be prepared to avoid problems at the port-of-entry upon re-entry. If you discover after self-calculation, that you have the 730 days of residence because of one of above listed reasons, you should bring proof with you when you re-enter Canada such as a job letter from you or your spouse s employer company which clearly indicates it is a Canadian business and job details Retaining your permanent resident status page 4 January 2012

5 What happens if you do not meet the residency requirement? If you have not amassed 730 days of residency in the past 5 years, the immigration officer will allow you the opportunity to prove why you were not able to comply and what hardship losing your permanent resident status will have on you and your family. At the port-of-entry, you will be told if there is a problem. You should be allowed to enter Canada while Canada Immigration examines your case in detail. For this examination, it is very important to clearly present all evidence and information to establish that: you had a very good reason for staying out of the country and that you had no other choice but to stay away for the period of time you were outside of Canada (e.g. looking after an ailing parent) even though you were outside of Canada, you still maintained ties to Canada and that Canada was your home you and your family members would suffer undeserved, disproportionate hardship if your permanent resident status were to be taken away When reviewing your case on humanitarian and compassionate grounds, the immigration officer will be looking at: were the circumstances that led to you being outside of Canada compelling and beyond your control were you ever prevented from returning to Canada are you returning to Canada at the earliest time possible did you leave Canada as a child or minor to accompany your parent and are you now returning at the earliest opportunity how have you established yourself in Canada and maintained ties here despite your absences were you outside of Canada because of a medical condition or a medical condition of a family member could alternative arrangements for the care of the family member have been made or was it your choice to remain outside of Canada what hardship would you and your family members, especially your children, suffer if your permanent residence status were to be taken away If after the examination, the officer decides that you have failed to meet the residency requirement, you will be issued a removal order. You have the right to appeal that removal order to the Immigration Appeal Division (IAD). The IAD will then hold a hearing to determine whether or not there was a legal error made in your case or whether there are humanitarian and compassionate grounds, including the best interests of the child, to warrant allowing you to keep your permanent resident status. Retaining your permanent resident status page 5 January 2012

6 If you do have any problems with meeting the residency requirements or think you will have problems the next time you try to re-enter Canada, it is best to seek the advice of an experienced immigration lawyer or Legal clinic to avoid unnecessary complications. 3. MISREPRESENTATION In the recent decade, Canada Immigration has taken an increasingly tough stance against misrepresentation. The consequences of misrepresentation for a permanent resident or someone who has no permanent status in Canada (foreign national) can range from being denied entry into Canada to removal from Canada. According to the Immigration law, people who misrepresent or hold back material facts, either directly or indirectly, relating to a relevant matter that causes or could cause there to be an error made in the administration of the Immigration law, could be found to be inadmissible to Canada. In other words, information which is false or untrue that you give to Canada Immigration could affect your status in Canada. Canada Immigration will look at each case on its own facts to decide whether or not to take enforcement action and it is guided by the law and policy guidelines in making this decision. Therefore, it is not possible to list what is a misrepresentation and what is not. However, there are certain situations which generally could be treated as misrepresentation: not telling Canada Immigration about your criminal record not telling Canada Immigration about a removal order which was issued against you in the past not revealing the existence of all of your family members when applying for a visa lying about the age of family members on an application especially those of dependent children providing false documents or certificates failing to tell Canada Immigration about a change in your marital status or other important change ( such as the birth of another child) prior to being issued a visa overseas or in Canada for example, you are planning to immigrate to Canada with your parents who include you on their application as a single dependent child. However, you marry before coming to Canada and fail to tell Canada Immigration. You are issued your immigrant visa, come to Canada and then submit a sponsorship to sponsor your spouse. Canada Immigration catches the inconsistency and could report you for misrepresentation because by nor reporting your marriage, you were able to obtain permanent resident status that you may not have been entitled to because you had married. Usually mix-ups in information contained in application forms do not constitute misrepresentation if the information has no bearing on the applicant s ability to qualify to obtain the immigration document they are applying for. Examples of this type of mistake are mixing up the order of the month and date of the date of birth or putting the wrong dates on the employment history. If Canada Immigration decides that enforcement action is warranted because of a misrepresentation, you will be notified of their intentions by letter and usually allowed to Retaining your permanent resident status page 6 January 2012

7 forward submissions and documentations regarding why it is your position that there was no misrepresentation as defined in the Immigration law. If Canada Immigration decides that they think there was misrepresentation, a report will be completed which can be used to convene an admissibility hearing before the Immigration Division of the Immigration and Refugee Board. At the hearing, an adjudicator will decide whether or not there was misrepresentation as it is defined in the Immigration law. At the hearing, you have the right to be represented by legal counsel and to give testimony and bring witnesses and other documentary evidence. If you are a permanent resident and the adjudicator decides that there was misrepresentation, a removal order will be issued. This removal order can be appealed to the Appeal Division of the Immigration and Refugee Board. At this appeal hearing, you are allowed to have legal representation and present oral and documentary evidence as to why the removal order should be cancelled or stayed or freezing the order for a period of time The Appeal Division is able to look at all of the circumstances of your case in making this decision. It is important to remember that a permanent resident or someone who does not have status in Canada has been found to be inadmissible to Canada because of misrepresentation, this inadmissibility stays in effect for 2 years following the date the removal order is made if there is no appeal made or no right to appeal ( in cases of criminality) or the date the Appeal Division makes its final determination of an appeal. If the inadmissibility finding was made outside of Canada, the two year period starts on the date the visa officer makes his final decision (ie) the date of the refusal letter. Since misrepresentation can have serious consequences on permanent residents or foreign nationals, pay close attention to any information you provide to Canada Immigration, especially on any forms you complete. If you cannot understand English and have to have someone else help you complete forms, make sure that person explains to you what has been written on the forms to ensure accuracy. Always be careful of anyone, whether it be a friend or hired immigration consultant or lawyer, who advises you to report information to Canada Immigration which is not real. This booklet provides general information only. Each particular situation is different, and the law can change. If you have any legal problems, please contact a lawyer or local community legal clinic. Retaining your permanent resident status page 7 January 2012