Dear Mr Brown,

I am a Jamaican citizen who is now a permanent resident of Canada. To make a long story short, I was going back and forth between Jamaica and Canada, as I still have a business in Jamaica. Therefore, I may have a problem meeting my residency obligation. Is there anything that I can do? Would the Canadian Government take into consideration that I still operate my business in Jamaica?

— BN

Dear BN:

Humanitarian and compassionate considerations may be utilised as discretionary relief in light of the circumstances of a case. Appeals by permanent residents who have failed to comply with the residency obligations of physically residing in Canada for at least 730 days during a five-year period have been successful. However, it is rare and for exceptional or extraordinary cases. Otherwise, everyone who breached the requirement would appeal.

Ties to Canada

The legal test is ostensibly rooted in demonstrating the intent and actual maintenance of strong, existing economic and social ties to Canada and that the loss of permanent resident status would result in undue hardship for him and his family under the circumstances.

Your employment record in Canada will be assessed to demonstrate that you are or have been successfully established in Canada. Other considerations may include: Your plan for your livelihood in Canada, and your motivation to return to Canada. It would be beneficial to your case to demonstrate that you have far more connections in Canada than you do in Jamaica, as well as corresponding significant hardship should you continue to stay in Jamaica.

Furthermore, Canadian immigration law allows taking the best interests of a child directly affected by the decision into account, where there are sufficient humanitarian and compassionate considerations warranting special relief in light of all the circumstances of the case.

Residency obligations

A permanent resident complies with residency obligation provisions with respect to a five-year period if, for at least 730 days in that five-year period, the permanent resident is:

1. Physically present in Canada;

2. Is outside Canada accompanying a Canadian citizen who is their spouse or common law partner or is a child accompanying a parent;

3. Is outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province;

4. Is an accompanying spouse, common law partner, or child of a permanent resident who is outside Canada and is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province

The visa officer will determine the residency obligation by examining the five-year period immediately before the date of the receipt of the application. Adequate evidence must also be presented in the form of documents and/or testimony from witnesses to support your position. Should you require guidance, please advise me accordingly.

Antonn Brown, BA, (Hons), LLB, MSc, RCIC, is an immigration counsel and an accredited Canadian education agent of JAMAICA2CANADA.COM — a Canadian immigration & education firm in Kingston. Send questions/comments to jamaica2canada@gmail.com . Please note, unauthorised Canadian immigration or employment consultants should be reported to the Police.