By Sukhram Ramkissoon

Permanent residents of Canada are obligated to meet residency requirements.  This means in most situations, unless otherwise noted, a permanent resident must spend at least 730 days in Canada within the five-year period under assessment.

Let us look at a case where a citizen of Haiti, who I will refer to as Mary, became a permanent resident in 1968, before turning 11 years old. She was sponsored by her father to Canada and after spending one year in Canada she fled to the US to be with her mother.

After joining her mother in the U.S., Mary never returned to Canada until February 2021, when she was examined at the Canadian Border. This means that Mary was absent from Canada for approximately 52 years.  CBSA verified her status and determined that she had not complied with her residency obligation. Therefore, they issued an inadmissibility report on March 16, 2021, and a removal order against her. As a result, she filed an appeal with the Immigration Appeal Division.

Mary needed to be physically present in Canada for a total of at least 730 days in the five-year period under examination. In this case, the five-year relevant period ends on the day of the inadmissibility report. In other words, the CBSA Officer assessed Mary’s residency in Canada from March 16, 2016, to March 16, 2021. During that period, she was only present in Canada on the day of her examination until the inadmissibility report was written, which was a total of 24 days.

Her appeal recently came up for hearing and she did not contest its legal validity of the removal order, but rather, she believed that there were enough humanitarian and compassionate (H&C) considerations to overcome her lack of compliance. The Minister’s Counsel did not believe so.          

At the hearing it was up to Mary to show that there were enough H&C considerations for her appeal to be allowed. She testified that she was forced to leave Canada as a minor to be with her mother in the US. The panel stated in its reasons that it must keep in mind that Mary was a minor until 1976, and age can be considered in the H&C analysis, and her parents’ decisions should not be held against her.

After joining her mother in the U.S., Mary never came back to Canada before her examination at the border.  Mary explained that she did not know that she had permanent resident status in Canada. Her testimony was credible, and the member believed her. However, this was still insufficient to excuse her very long absence.

Indeed, it was within Mary’s power to enquire about her potential Canadian status. Until 1999, she had her mother and two sisters in the U.S. More importantly, her father was and still is in Canada. It is only when his health started deteriorating that he and his wife started to see if there was a way for Mary to come to Canada and help. She finally came in 2021, because of her father’s health, and because of her employment situation in the U.S.

The member ruled that Mary’s stay abroad did not exempt her from compassionate considerations. An important fact was that Mary lost her legal U.S. status shortly after joining her mother in that country. Apparently, her mother tried to regularize Mary’s status in the U.S. for many years, but to no avail. As a result, Mary has spent several decades, and all her adult life in the U.S. without status.  Mary never left the U.S. until she came to Canada in 2021. This is because she was afraid of getting caught and deported to Haiti.

Mary’s lack of legal status in the U.S. did not only have consequences on her travel; it had consequences on her life in general in that country. Indeed, it severely limited the possibilities she had in terms of employment and education. She did not have access to a higher education and worked as a babysitter. It also limited her access to healthcare. For example, she testified that she has not sought non-urgent healthcare in 15 years. This is significant for anyone, and often even more so for someone who is 63 years old, the member stated.

It was clear that Mary did not try to return to Canada as soon as possible. Furthermore, she apparently knew of her potential Canadian status as early as 2019. It is only when, in addition to her father’s deteriorating health, her employment situation in the U.S. took a turn for the worse that she came to the Canadian border in February 2021.

Indeed, before returning to Canada, she lived more than three quarters of her life without legal status in the U.S. During all this time, the fear of being caught and deported to Haiti was omnipresent in her mind and this had a very concrete effect on her life. In that context, the member stated, “I can perfectly understand the reluctance one would have in voluntarily presenting oneself to a border agent to claim a status. This holds even more true when the status in question was obtained more than 50 years ago and concerns one’s residence.”

Indeed, Mary has close ties with her father and his wife, who both live in Canada together. He is one of the main reasons why she decided to come back to Canada. Since her return to Canada, she has acted as a nurse and caregiver to him and this found to be a favourable factor. The member also stated by dismissing the appeal it would dislocate Mary from her father and his wife. This dislocation would go against family reunification, which is one of the objectives of the Act.

The member also found that by dismissing the appeal, it would also mean that Mary would be deported to Haiti, which is her only country of nationality. She provided clear and convincing objective evidence establishing it is a dangerous country, even more so for a single woman. She only has an unemployed cousin and a 91-year-old aunt there. Mary also pointed out that she would be targeted because of her different skin colour, and the fact that she does not speak Creole. Mary testified that what awaits her in that country is a lack of support, employment, healthcare, and housing, especially after the assassination of the president and the aftermath of the earthquake.

The panel ruled the factors are favourable which outweigh the unfavourable ones and compensate for her non-compliance.  The Immigration Appeal Division allowed the appeal and found that Mary has not lost her permanent residence status.

Good luck.

SUKHRAM RAMKISSOON is a member of the College of Immigration and Citizenship Consultants and specialises in immigration matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.