Abolish PR Cards and Implement a Residency Obligation Amnesty

Permanent residents of Canada are currently required to possess a Permanent Resident Card, commonly referred to as a “PR Card,” in order to board commercial transport to Canada.  Processing times for new PR Cards currently exceed 100 days, and the Immigration, Refugees and Citizenship Canada (“IRCC”) Twitter account recently advised permanent residents seeking to renew their PR Cards to apply 9 months in advance of travel in order to avoid trip disruptions.  Permanent residents are often left stranded abroad, or find themselves stuck in Canada unable to travel internationally, for months. The situation is untenable, and it is time for the Government of Canada to eliminate PR Cards, let permanent residents travel to Canada using the new Electronic Travel Authorization system, and implement a “residency obligation amnesty” until the government develops a better system to track entries and exits to and from Canada.

This will focus on the impact of PR Card processing delays to those travelling by air to Canada, as this is where the issue is most pronounced.  However, it is important to note that the PR Card requirement applies to all commercial transport to Canada, including air, boat, rail, and bus.

The Residency Obligation

When someone immigrates to Canada they don’t automatically become a Canadian citizen.  Rather, they become a permanent resident. A permanent resident has the right to reside in any Canadian province, attend any educational institution, and work in any legal employment.   Permanent resident status can only be lost in prescribed circumstances, including when a permanent resident becomes a citizen, when the Government of Canada establishes that the permanent resident is inadmissible to Canada for having engaged in serious criminality or misrepresentation, and, most commonly, where it determines that the permanent resident has not complied with Canada’s permanent resident residency obligation.

Canadian immigration legislation requires that all permanent residents spend 730 days in Canada during every five year period.  This is typically referred to as the “2 year out of 5” rule.  In addition to time spent physically in Canada, the time a permanent resident spends outside Canada accompanying a Canadian spouse or common-law partner counts towards the 730 days, as does the time that a permanent resident spends working abroad on a short term assignment for a Canadian business.

In exceptional circumstances, permanent residents who do not meet the residency obligation can retain their status if there are exceptional humanitarian & compassionate considerations justifying it.  Typical satisfactory reasons include that the permanent resident was spending time outside of the country as the primary caretaker for a sick relative, that they were a minor accompanying their parents outside Canada and had no meaningful say in whether they remained outside of Canada, or that they were attending post-secondary education outside of Canada.

PR Cards

The PR Card is the physical proof that someone is a permanent resident of Canada.  It is a wallet-sized card that must be presented at an international airport in order for a permanent resident to board a commercial airplane to Canada.  If a permanent resident arrives at a Canadian port of entry without a PR Card, but can demonstrate to the border official that they are a permanent resident of Canada, then they will still be admitted to Canada.  However, the Canadian government may fine the airline for allowing the permanent resident to board an airplane to Canada without a PR Card.  For this reason, airlines will generally deny boarding to anyone who they identify as being a permanent resident without a PR Card.

There are two types of PR Cards.  Initial PR Cards are automatically processed by IRCC once someone becomes a permanent resident of Canada.  They are valid for five years.  After five years, permanent residents must apply to renew their PR Cards, with each subsequent PR Card also being valid for five years if they wish to travel internationally commercially.  As part of the application process, IRCC requires that permanent residents demonstrate that they meet the residency obligation.

Unfortunately, for whatever reason, Parliament created the permanent resident residency obligation without also enabling IRCC to track exits from Canada.  While the government does track entries, it does not track exits.  Given the permanent resident residency obligation one might have assumed that the Canadian government would have installed PR Card swiping machines at airports and other border crossings so that permanent residents could voluntarily indicate to IRCC when they leave Canada.  However, no such system exists.  Accordingly, permanent residents seeking to renew their PR Cards must provide to IRCC supporting documents to establish when they were inside and outside of Canada, including passport stamps, boarding passes, employment documentation, education documentation, etc.  For frequent travellers, PR Card renewal applications can be thicker than their immigration applications.

Processing Delays

The IRCC website states that it is currently taking 105 days to process initial PR Cards.  It further states that this does not include the time that it takes the department to mail the PR Card, which can add an additional 6 weeks.  The IRCC website further states that while someone with travel plans can request an urgent PR Card, that urgent processing cannot occur in less than 6 weeks.  The inane result is that after someone immigrates to Canada they are unable to travel by commercial aircraft internationally for a period ranging from 6 weeks to 4 months.

Capture-newcards

The IRCC website further states that the processing time to renew a PR Card is 180 days, plus up to an additional 6 weeks to mail the actual card.  Even the stated processing time seems optimistic considering that on the IRCC’s Twitter account the Department recently recommended that permanent residents apply to renew their cards 9 months in advance of it expiring.  As a result of ever increasing delays, it is not uncommon for permanent residents to apply several months in advance of their PR Card expiring only to be unable to travel for several more months.
Capture-prcardsrepeat

Capture-prcard

 

At the same time, it typically takes less than one month for IRCC to process Canadian passport applications, and urgent applications can be processed in under 48 hours.

Now of course, it is not the case that a permanent resident who is outside of Canada without a PR Card can never return to Canada. They have two options. The first is for them to travel by air to the United States and then arrange for a family member or friend to pick them up so that they can enter Canada through a land crossing.  While the Canada Border Services Agency initially viewed such actions suspiciously this is now becoming a widely accepted practice as most border officials recognize that IRCC’s processing delays are forcing Canadian permanent residents to travel through the United States in order to enter Canada.  One can only assume that Canadian airports are unimpressed that the Canadian government is essentially driving business to American airports.

The second option is for the permanent resident to apply for a Permanent Resident Travel Document (“PRTD”) at a Canadian consulate.  A PRTD is a one-time entry permit that a Canadian consulate will affix to a permanent resident’s passport.  It can take anywhere from days to weeks to process, and the IRCC document checklist states that PRTD applicants must enclose with their application evidence that they meet the permanent resident residency obligation by providing documents such as school or employment records, tax documents, marriage licenses, entry and exit records, pay statements, credit card and phone records, etc. This is not very easy to do when someone is outside Canada, and it is not uncommon to hear of permanent residents being stranded for months while their PRTD is processed.

The Electronic Travel Authorization

Traditionally, Canadian permanent residents who are also citizens of countries whose nationals are exempt from the requirement to obtain temporary resident visas to visit Canada have more or less been able to ignore the PR Card requirement.  This includes citizens of most European states, the United States, Japan, Australia, New Zealand, Israel, etc.  The reason that they were generally able to ignore the PR Card requirement is that the airlines had no meaningful way of verifying whether these individuals were Canadian permanent residents or simply tourists wishing to visit Canada.  Accordingly, the Canadian government almost never fined airlines that allowed permanent residents of these countries to board aircraft without PR Cards.

However, as of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a TRV to enter Canada, excluding Americans, will be required to obtain an Electronic Travel Authorization (an “eTA”) before they travel to Canada by air.   As such, it will no longer be the case that citizens of these countries will be able to simply purchase tickets and board planes to travel to Canada.  Rather, they will be unable to board commercial aeroplanes to Canada unless the airlines first confirm that passengers possess eTAs through the Government of Canada’s new Interactive Advance Passenger Information system.

The eTA is an online application, and the travel authorization is also electronic.  Applicants need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, travel history, and whether they are a permanent resident of Canada.  Permanent residents cannot get eTAs, and are instead told that they need to apply for PR Cards if they do not already have one.  As well, once a foreign national who possesses an eTA becomes a permanent resident, the eTA becomes invalid.

The obvious consequence is that for the first time citizens of most European states, Japan, Australia, New Zealand, Israel, etc., who are Canadian permanent residents will be impacted by the PR Card processing delays.   Indeed, these delays are likely only going to worsen as the number of permanent residents who need PR Cards will increase after March 15.

Get Rid of PR Cards, and Implement a Residential Obligation Amnesty

It is hopefully clear from the above that the current PR Card system is untenable, and that reforms are needed.

Indeed, the Government of Canada should also abolish PR Cards completely.  If foreign nationals can travel to Canada using an electronic system, then surely permanent residents should be able to as well.  Getting rid of the physical card and instead issuing an eTA, or something similar, to permanent residents would presumably reduce the time that it takes to process an initial permanent resident travel authorization to zero.  It could even be done at the time an applicant becomes a permanent resident.  For renewal applications it would eliminate the up to six week delay in mailing times.

As well, IRCC should immediately and temporarily implement is a “residency obligation amnesty” for permanent residents renewing their travel authorizations.  Canada’s Immigration and Refugee Protection Regulations state that IRCC officers shall issue a permanent resident a PR Card if (a) the permanent resident has not lost permanent resident status, (b) has not been convicted for fraud involving the misuse of a PR Card, (c) has submitted a complete PR Card application, and (d) returns their previous PR Card, unless it has been lost, stolen, or destroyed.  The law does not require that IRCC to make a permanent resident residency obligation determination prior to issuing the card.  While ideally IRCC would make such determinations to ensure residency obligation compliance, until the Government of Canada devises a system to better track exits or reduce processing times by other means, it should temporarily stop enforcing the residency obligation during the PR Card application process.

Both of the above two recommendations seem obvious.  Whenever a solution seems obvious I assume that I have missed something.  If a reader knows why either recommendation above cannot be done, please let me know.

However, regardless of the solution, it is important that the Government of Canada act quickly to end the inability of permanent residents to travel internationally while they wait for PR Cards.  It is puzzling that IRCC has allowed the issue to worsen as it has.  It is also disheartening to know that the situation will likely continue to be unaddressed until at least the eTA requirement comes into force.  I am not one who typically views things through racial prisms.  However, if after years of ignoring the inability of permanent residents who are citizens of China, India, the Philippines, and other “dark skinned” nations to travel while they wait for PR Cards, the Government of Canada were to suddenly take action only when the citizens of predominantly European nations become similarly affected, then it will be perfectly reasonable for people to conclude that it was only when “white people” were impacted that the Canadian government took action.


PR Cards will no Longer be Mailed to Permanent Residents’ Representatives

On January 14, 2013, Citizenship and Immigration Canada (“CIC“) issued Operational Bulletin 491 – Mailing Permanent Resident Cards (“PR Cards“) to Representatives (“OB-491“).  OB-491 is an update to the 2012 Pilot Project to mail permanent resident cards directly to applicants instead of having them attend at a CIC office.

Many permanent residents have been requesting that CIC mail their PR Cards to their authorized representatives.  This apparently caused CIC to be concerned that authorized representatives would forward the PR Cards to permanent residents overseas, which is (possibly) contrary to (the somewhat unclear) subsection 55 of the Immigration and Refugee Protection Regulations (the “Regulations“), which states:

DELIVERY

55. A permanent resident card shall only be provided or issued in Canada.

OB-491 accordingly clarifies that CIC will mail PR Cards issued to new immigrants (also known as “Phase I Cards“) to third parties in Canada, including friends, relatives, service providers or paid representatives, in order to facilitate the processing and issuance of PR Cards to new immigrants as they may not yet have a permanent address in Canada.

OB-491 also stipulates that CIC will only mail renewal or replacement PR Cards (also known as “Phase 2 Cards“) directly to applicants with permanent residential addresses in Canada.  CIC has accordingly already started sending the following letters (the “CIC letters“) to permanent residents who request that their Phase 2 Cards be mailed to third parties:

Your application indicates your representative’s address as your home and mailing address. As per subparagraph 56(2)(a)(iv) of the Immigration and Refugee Protection Regulations, we require that applicants provide their personal mailing address, as Permanent Resident Cards are not mailed to third parties.

Please provide your mailing address and the information requested by “dd, mm, yyyy” to enable us to issue your Permanent Resident Card. If the information requested is not provided by the date indicated, we will consider your application as abandoned and you will have to submit a new application, including processing fees.

Once you have provided this information we will continue with the processing of your application.

How does CIC plan to issue Phase 2 Cards to permanent residents who do not have a permanent address in Canada?  The Immigration and Refugee Protection Act (the “Act”) provides that permanent residents maintain their permanent resident status if they are outside of Canada accompanying a spouse who is a Canadian citizen.   Many such individuals may visit Canada with their spouse frequently, but they do not have a permanent address here.  This is quite common, and our office regularly helps such permanent residents renew their PR Cards.  If third parties can no longer receive the PR Cards and hold them until they next visit Canada to pick their PR Cards up, how can these individuals renew their PR Cards?

Is there going to be a mechanism for them to pick them up from a CIC office?


Visa Requirement Removed for Taiwan

Effective November 22, 2010, holders of ordinary Taiwan passports that contain a personal identification number and are issued by the Ministry of Foreign Affairs in Taiwan will no longer require a Temporary Resident Visa (TRV) to visit Canada.
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Wait Times for PR Card Renewal Dramatically Increase : 申請人及律師炮轟 中國新移民遭歧視

The processing time for PR Card renewals has ballooned from roughly 42 days to 171.  There are several reasons for this, including personnel reductions at Case Processing Centre  Sydney, a higher than expected number of permanent residences wanting to renew their permanent resident card instead of applying for citizenship, and increased complexity of some of the files.

I was quoted on this matter in yesterday’s Ming Pao:

不增人手 問題更惡化

移民律師辛湉王(Steven Meurrens)則說,移民部完全錯估了楓葉卡第一次5年到期後、仍未累積夠居住時間而須再更換楓葉卡的人數。他指出,2002年楓葉卡推出5年 後,2007年開始接受換卡,今年才是接受換卡的第3年,人數已多到令現有人力無法負擔的程度,如果再不加人手,問題只會更惡化。

辛湉王 說,楓葉卡更換的過程比想像中複雜,例如被派到國外加拿大公司工作的永久居民,必須盡可能繳足所有證明在當地居住的文件,由於之前有個案造假,移民部對派 駐海外工作永久居民的楓葉卡更換申請,調查特嚴格,如此均拖慢所有的申請進度。

Yesterday I also recommended to an individual who is a frequent flyer and whose PR card was set to expire in February that he start the application process now. He replied that this would cause great difficulties because he would have to turn in his existing, still valid, PR Card.

This is not the case.

From Immigration Canada’s website:

If you are applying to renew your present card and:

  • your card has expired, you should return it with the completed application for a new card or
  • your card is still valid, you may hold on to it and return it to a CIC officer when you pick-up your new card at a local CIC office.

If you are applying to replace your damaged card, you should return your card with your application.

Individuals who are deciding whether or not to apply early to renew their PR Card should thus not worry about having to turn their existing card in.


“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.


CIC Hires More PR Card Renewal Processing Staff

I have commented extensively upon the increased wait time in processing permanent residency card renewals. I have noted that the dramatic increase from an average of 40 days to the current 191 cannot be the result of an increase in applicants, because the number of applicants is actually decreasing. I hypothesized that the actual reason was likely due to either an increase in the complexity of files, or staffing issues.
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PR Card Renewal Wait Times Continue to Increase, plus: Use of a Representative : 說不出代辦名字易惹官質疑

Less than three weeks ago I commented on the increased delay in processing PR Card Renewals. The processing time had gone from roughly 40 days in January, to 80 days in April, to 171 days on July 16th.
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