Physical Presence: Permanent Residence vs. Citizenship
SOURCE - Immigration & Refugee Protection Act & Citizenship Act
There are some distinct differences between what counts as physical presence for the purpose of maintaining permanent residence versus calculating physical presence for the purpose of applying for Canadian citizenship.
There are two distinct legal frameworks that encompass physical presence requirements within the context of Canadian immigration:
Residency obligation for the purpose of maintaining permanent residence is outlined in the Immigration and Refugee Protection Act (IRPA).
Physical presence for the purpose of determining eligibility to apply for Canadian citizenship is outlined in the Citizenship Act.
1. Residency Obligation - Maintaining Permanent Residence
Under section 28(2)(a)(i) of the Immigration and Refugee Protection Act, in order to maintain permanent resident status in Canada, a permanent resident must be physically present in Canada for 730 days (2 YEARS) out of every 5 year period.
Days spent outside Canada:
They can count time spent outside of Canada if they are:
(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
Permanent residents who fail to meet their residency obligation due to extenuating circumstances outside of their control, may be able to apply for a discretionary determination by an officer based on humanitarian and compassionate considerations. Especially if there is sufficient and compelling evidence that the best interests of a child will be directly affected by the determination, which may justify the retention of permanent resident status and overcome any breach of the residency obligation.
2. Physical Presence - Eligibility to apply for Canadian Citizenship
Under section 5(1)(c)(i) of the Citizenship Act, to be eligible to apply for Canadian citizenship a permanent resident must have been physically present in Canada for at least 1,095 days (3 YEARS) during the five years immediately before the date of his or her citizenship application. The length of physical presence is calculated in the following manner:
(a) for every day during which the person was physically present in Canada as a temporary resident or protected person under the Immigration and Refugee Protection Act before becoming a permanent resident, the person accumulates half of a day of physical presence, up to a maximum of 365 days; and
(b) for every day during which the person has been physically present in Canada since becoming a permanent resident, the person accumulates one day of physical presence.
Days spent outside Canada:
For determining eligibility to apply for Canadian citizenship, a permanent resident can count any day spent outside Canada if:
(1.01) Any day during which an applicant for citizenship resided with the applicant’s spouse or common-law partner who at the time was a Canadian citizen and was employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of physical presence in Canada for the purposes of paragraphs (1)(c) and 11(1)(d).
(1.02) Any day during which an applicant for citizenship was a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and was employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of physical presence in Canada for the purposes of paragraphs (1)(c) and 11(1)(d).
(1.03) Any day during which an applicant for citizenship was the spouse or common-law partner, or child, of a permanent resident referred to in subsection (1.02) and resided with that permanent resident shall be treated as equivalent to one day of physical presence in Canada for the purposes of paragraphs (1)(c) and 11(1)(d).
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