“Assigned To” and the Residency Test for PR Status

 

As previously discussed on this blog, one of the ways to satisfy the residency obligation of maintaining permanent residency is to be employed outside of Canada on a full-time basis by a Canadian business or in the federal public administration or the public service of a province.

A thorny issue that has arisen in the context of determining whether someone meets this requirement is whether an employee had been “assigned” to an overseas affiliate of a Canadian business, and whether it was necessary for there to actually be an “assignment” from the Canadian business.

In Canada (Citizenship and Immigration) v. Jiang, 2011 FC 349, the Federal Court addressed this issue.

At issue before the Court was whether the Immigration Appeal Division had erred in determining that neither the Immigration and Refugee Protection Act or the Immigration and Refugee Protection Regulations required that an assignment of a foreign employee must be effected from Canada.  In the Jiang case, a Canadian permanent resident living in China had been hired by a Canadian business while she was in China.

The relevant section of the Regulations reads:

Employment outside Canada

(3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, 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; or

(c) a client of the Canadian business or the public service outside Canada.

The Federal Court ultimately disagreed with the Immigration Appeal Division, and ruled that the word “assigned” in subsection 61(3) means that an individual occupying a position outside Canada on a temporary basis.  It also requires that the individual be likely to return to Canada once the assignment is completed.

The issue of what constitutes employment on a full time basis abroad is one that is frequently litigated before the Immigration Appeal Division, and this case goes a long way towards resolving uncertainties in the law regarding the issue.