How to maintain Canadian Permanent resident status by working outside Canada

Author: Parminder Singh, J.D. Juris Doctor (Canada)

If you are outside Canada and your Canadian permanent resident card is expired or lost, you must apply to a Canadian Visa office for a Travel document to come to Canada. If you are in Canada, you must apply for renewal of your Canada PR card. A travel document or a Canada PR card is issued by an officer, if he is satisfied that you have met residency obligation. You must prove to the officer that you have physically resided in Canada for 2 years out of the last 5 years.

However, this residency obligation can be met, if an applicant is residing outside Canada along with a Canadian citizen spouse or if an applicant is working outside Canada for a Canadian business or if an applicant’s circumstances allow a humanitarian consideration.

Unfortunately, a lot of applications are rejected because the immigration officers fail to understand the following,

ISSUE

What does “employed on a full time basis for a Canadian business outside Canada” mean?

This article deals with the above question based on the following,

LAWS

 S. 28 and Regulation 61(1)(2)(3) of IRPA, Operational manual ENF 23 (6.5), and the following Cases:

  1. Liu v. Canada (Citizenship and Immigration), 2009 CanLII 84711 (CA IRB)
  2. Lang v. Canada (Citizenship and Immigration), 2011 CanLII 88167 (CA IRB)
  3. Wei v. Canada (Citizenship and Immigration), 2012 FC 1084 (CanLII)

ANALYSIS

A) The Canadian business means, a business that (1) is registered in Canada and (2) has operations in Canada (3) capable of generating profit (capable does not mean the business must generate profit, it means it has capacity to generate profit, even if at times, it fails. (Liu V Canada, supra, at para 8)

If these requirements are met, then for the purpose of meeting residency obligations under s. 28 of IRPA, the overseas employee must be as described under:

B) The Employee

(1)The employee must be on an assignment or contract from the Canadian business described above, which means his employment must be full-time and of temporary nature and his intention is to settle in Canada permanently.

(2)The expression “employed on a full-time basis by a Canadian business” means, that the permanent resident is an employee of, or under contract to provide services to, a Canadian

business, 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;

(c) a client of the Canadian business

Regulation 61(3), IRPA

The employee need not be employed in a foreign branch office or subsidiary of the Canadian business. As long as, the foreign business is either affiliated to Canadian business or is a client of Canadian business, the employee meets the requirements of being employed by a Canadian business. In other words, if the applicant is on a contract or an assignment to work for an affiliated enterprise or a client of the Canadian business, the applicant meets the requirements of working abroad for a Canadian business.

Applicant’s Evidence in support of Canadian Business

The applicant may provide the following evidence which undoubtedly indicates that the applicant’s employer is a Canadian Business.

  •  Canadian business incorporation certificate
  • Owner’s Canadian license to provide services, if possible
  • Canadian business’s ongoing contracts with Canadian companies or clients
  • Canadian business’s financial transactions with companies and clients in Canada
  • Canadian business’s tax payment to Canada

Applicant’s Evidence in support of his contract to provide services to Canadian business through affiliated enterprise or client enterprise in India

  • The contract between the Canadian business and the applicant, which specifically states that the applicant will provide services to the Canadian business on a full time basis against a salary.
  • The applicant’s fulfilment of his contractual obligation to Canadian business (Provide proof of business activities outside Canada)
  • The Canadian business’s fulfilment of salary obligations to the applicant (Provide: salary slips, salary deposit records, applicant’s tax payments to the Canadian Government)
  • The term of contract stating that the applicant will open an affiliated company in India for the purpose of generating business and clientele for the Canadian business under the supervision of Canadian business.
  • The term of the contract stating that the applicant will not work for, either as a full time or part time employee, for any other company, whether Indian or Canadian.

An applicant may submit that neither the Canadian business nor the applicant is required to open a Canadian subsidiary or branch office in a foreign country, under the Identical Name, in order to fulfil his contractual obligations under regulation 61. The regulation specifically requires registration of Canadian business in Canada and not in a foreign country. To operate in a foreign country, the regulation clearly specifies that the applicant must be working under a contract or assignment on a fulltime basis to provide services to Canadian business through

a) a position outside Canada;

(b) an affiliated enterprise outside Canada; or

(c) a client of the Canadian business

In order to be an affiliated enterprise, the enterprise must be under command and control of Canadian company.

The applicant may also be characterized as an employee on an assignment from Canadian business to provide services to the Indian company which is client of Canadian businessbecause it provides clients to the Canadian business.

Please note that the applicant’s identity is separate from the business entity as per the general principles of corporate law. A corporation is a separate and independent entity from its employees and directors. The applicant works for a Canadian business on an assignment as an in-house service provider to the Indian business entity which is a client of the Canadian incorporated business entity.

Employment outside Canada: Guidance in Operational manual ENF 23.

6.5.      Employment outside Canada

The Regulations enable permanent residents to comply with the residency obligation while working abroad, provided that:

        they are under contract to, or are full-time employees of, a Canadian business or in the public service, where the assignment is controlled from the head office of a Canadian business or public institution in Canada; and

         they are assigned on a full-time basis, as a term of their employment or contract, to a position outside Canada with that business, an affiliated enterprise or a client.

An Affiliated Company: Guidance in decision of IRB appeal panel

In Liu v. Canada (Citizenship and Immigration), 2009 CanLII 84711 (CA IRB), the panel stated,

[6]               The main thrust of the submissions by Minister’s counsel, in this matter, is that the appellant has not established that she is employed full time by the Canadian business as provided for in subsection 61(3) of the Regulations.  In spite of voluminous documentary disclosure, the appellant did not provide any document that confirms the Canadian business’ ownership of the Taiwanese company.  The appellant testified that she spent half of her time working for the Taiwanese company.  Thus, if the appellant has not proven that the Taiwanese company is wholly owned by the Canadian company, potentially she would not be able to establish full time work as required pursuant to subsection 61(3) of the Regulations.  However, this section also provides that the appellant could work for “an affiliated enterprise outside Canada” or “a client of the Canadian business”.  I accept the appellant’s testimony that she works, at least full time, in her duties for the Canadian company and the Taiwanese company.

An applicant works for Canadian business in India even if the Indian business is not owned by the Canadian business. He works for an affiliated enterprise for which he is paid salary by the Canadian business against which he fulfils his tax obligations to Canada.

In contrast to Liu supra, the IRB appeal panel rejected residency appeal of the applicant in Lang infra where he was being paid salary by the overseas company even when the overseas company was manufacturing goods for the Canadian company.

In Lang v. Canada (Citizenship and Immigration), 2011 CanLII 88167 (CA IRB), the appeal panel found at para 8 that Lang was not working for Canadian business in China because ,

…His salary was paid by the Chinese company.  The panel gave the appellant the opportunity to clarify the basis under which he provided services to the Canadian company, and he confirmed that he in fact, was paid by a Chinese company, who manufactured goods for a Canadian company.  In the panel’s view, this arrangement does not meet the definition of employment outside Canada by a Canadian business as the appellant has failed to establish the direct relationship between himself and the Canadian company that is contemplated by section 61 (3) of the Regulations.

[9]                  In the panel’s view, the appellant was neither an employee of, or under contract to provide services to, a Canadian business. Nor is he assigned on a full-time basis as a term of employment or contract to,

a) a position outside Canada;

(b) an affiliated enterprise outside Canada; or

(c) a client of the Canadian business.

[10]              The appellant fails to meet this definition, because he has not established that the Chinese company is an affiliated enterprise of the Canadian company or that it is the client of the Canadian business.

In Wei v. Canada (Citizenship and Immigration), 2012 FC 1084 (CanLII), the Federal Court stated that

[52]…It was this Court’s view in Jiang that 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. [emphasis added]

An applicant may provide evidence to show that he maintains a connection to his employer in Canada through

  • provision of services to its affiliated company or client in India
  • through receiving salary from Canadian business and
  • through paying taxes in Canada where he intends to return to join his employer and immediate family members as per terms of contract.

H & C grounds

Even if an applicant’s work outside is not valid for the purpose of calculating residency obligation, the appellant may seek the exercise of discretion to find, taking into account the best interests of a child directly affected by the decision, that there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. The applicant may request an officer to invoke H & C grounds in light of the following factors:

  • The Length of the Breach of the Residency Obligation
  • The Reason why the Appellant Left and Remained Outside of Canada
  •  The Best Interests of a Child Directly Affected by the Decision
  • The Impact on the Appellant’s Family in Canada
  • The Degree of Hardship to the Appellant if Required to Remain in India

Summing up, in view of the established case law,  regulation 61 and ENF23, the applicant’s time spent outside Canada ought to count towards the residency requirement if he works for a Canadian business outside Canada within the meaning of s28(2)(a)(3) of IRPA and its regulation 61(1)(2)(3).  In the alternative, the applicant may seek invocation of discretionary power on Humanitarian & Compassionate ground.