The residency obligation (s 28)
Overview
Section 28 of the Immigration and Refugee Protection Act (IRPA) requires permanent residents of Canada to be physically present in Canada for at least 730 days within any 5-year period. This is known as the residency obligation. Failure to meet the residency obligation can result in loss of permanent resident status. However, time spent abroad may still count toward the 730-day requirement in certain circumstances — including when accompanying or employed by a Canadian citizen spouse, or when employed outside Canada by a Canadian business.
The residency obligation is assessed when a permanent resident applies for a new PR card, applies to enter or re-enter Canada at a port of entry, or when CBSA has reason to believe the obligation has not been met. The rolling 5-year window means the relevant question is always whether the person has accumulated 730 days of qualifying presence in the most recent 5-year period.
Legal basis
- IRPA s 28(1) — the residency obligation: a permanent resident must be physically present in Canada for at least 730 days in every period of 5 years
- IRPA s 28(2) — days outside Canada that count toward the 730-day requirement:
- (a) accompanying a Canadian citizen who is their spouse or common-law partner
- (b) employed outside Canada by a Canadian business or the public service of Canada or of a province
- (c) accompanying a permanent resident who is employed outside Canada by a Canadian business or the public service
- IRPA s 46 — circumstances under which permanent resident status is lost
- IRPA ss 63–71 — the IAD appeal of a residency obligation determination
How it works
Counting the 730 days
The 730 days may be accumulated across any 5-year period, not necessarily the 5 years immediately before the assessment date. Days count as follows:
- Physical presence in Canada: all days physically in Canada count
- Accompanying a Canadian citizen spouse/partner abroad: days outside Canada while accompanying the Canadian citizen spouse or common-law partner count, provided the relationship is genuine and the Canadian citizen is also physically outside Canada
- Employed outside Canada by a Canadian business: days outside Canada while employed abroad by a Canadian business count, subject to certain requirements about the nature of the business and employment
- Accompanying a PR employed abroad by a Canadian business: the spouse/partner and dependent children of a PR who qualifies under the employment exception also count their days abroad
The rolling window
The 5-year window is continuous and rolling. The compliance question at any given point is: in the 5 years immediately before this date, has the person been present for at least 730 days? If the period started after they became a PR and they have not yet accumulated 5 years of PR status, the requirement is pro-rated.
PR card renewal
When a permanent resident applies to renew their PR card, IRCC assesses whether the residency obligation has been met for the most recent 5-year period. A renewal will not be granted if the obligation is not met, and a residency determination may be initiated. If the PR is outside Canada and their PR card has expired, they must apply for a Permanent Resident Travel Document (PRTD) to return, and the obligation is assessed at that time.
Consequences of non-compliance
If a PR has not met the residency obligation, a CBSA officer or visa officer may report the breach. The matter is referred for a determination or to the IAD. The IAD may confirm the loss of PR status or allow the appeal on humanitarian and compassionate grounds, taking into account all relevant circumstances.
IAD appeal
A permanent resident who receives a determination that they have lost their status may appeal to the IAD. The IAD may set aside the determination on H&C grounds — for example, where the person was abroad because of exceptional circumstances (serious illness of a family member, employment obligations, etc.) and the circumstances do not justify losing status.