Section 28 — Residency obligation
Text of provision
(1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) The following provisions govern the residency obligation under subsection (1):
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(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
(v) referred to in regulations providing for other means of compliance;
(b) it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
Plain English
Section 28 establishes the residency obligation for permanent residents: a permanent resident must be physically present in Canada for at least 730 days in every five-year period.
Periods that count toward the 730 days include:
- physical presence in Canada;
- time outside Canada while employed full-time by a Canadian business or the public service;
- time outside Canada accompanying a Canadian citizen spouse or common-law partner; and
- time outside Canada as an accompanying family member of a permanent resident who is compliant with the residency obligation.
Section 28(2)(c) allows for humanitarian and compassionate considerations where the obligation would otherwise not be met.
Practical effect
The 730-day obligation is assessed on a rolling basis — not on a fixed calendar. At any point in time, a permanent resident must have been present for at least 730 of the preceding 1,826 days (five years).
Non-compliance with the residency obligation does not automatically extinguish permanent resident status — status is only lost under s 46(1)(d) when a removal order becomes enforceable after a final determination. A permanent resident who is found non-compliant has a right of appeal to the IAD before the order becomes enforceable.