The Maple Leaf Card For Immigrants to Canada BY STEPHEN W. GREEN

Citizens of other countries who immigrate to Canada and are granted what is now called “permanent resident” status (what used to be called “landed immigrant” status) may wish to travel abroad for the purposes of visiting family, employment or taking care of business interests. A “permanent resident” is a person who has been granted lawful permission to establish permanent residence in Canada and is not a Canadian citizen.

Until recently, where permanent residents spent longer than six months outside of Canada, they were required to apply for a “returning resident permit” or risk losing their right to enter Canada. Under Canada’s new Immigration and Refugee Protection Act, which came into force in November 2001, the rights and obligations of these individuals has been significantly amended. The burden of obtain-ing a returning resident permit has been eliminated, but there are new physical residency requirements. A new identification document - the “Maple Leaf Card” - has been introduced.

The previous physical residence requirement stipulated that an individual must spend 183 days in a 12-month period in Canada. The new requirements are less onerous and viewed as more favourable by permanent residents. A permanent resident will now have to be physically present in Canada for a total of at least 730 days in a five-year period, unless they fall under a list of exemptions.

The exemptions include individuals who were outside Canada accompanying a Canadian citizen who is their spouse or common-law partner, or, in the case of a child under 21, their parent; individuals who were outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or a province; individuals who were outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child under 21, their parent, who is employed on a full-time basis by a Canadian business or in the public service of Canada or a province.

At examination, individuals who have been permanent residents for less than five years will be required to demonstrate that they will be able to meet the residency obligation with respect to the five-year period immediately after they became a permanent resident. Those who have been permanent residents for five years or more must demonstrate that they have met the residency obligation in respect of the five-year period immediately preceding the examination. Finally, an officer may make a determination that humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status, despite any breach of residency obligation prior to the determination.

A very positive component of the exemptions from the physical requirements is the situation where time spent abroad on behalf of a Canadian business will be deemed to be time spent in Canada for the purposes of maintaining one’s permanent resident status. In the explanation of the proposed Regulations (October 2001), the Department of Citizenship and Immigration stated that they wished to define “Canadian business” in this context in an extremely broad, inclusive and flexible definition. They hoped to include full-time employment abroad in situations involving intra-company transferees, assignments abroad to other than direct affiliates of Canadian companies, temporary postings or assignments by Canadian organiza-tions or businesses.

Draft regulations, issued June 11, 2002, define a Canadian business as:

(a) a corporation that is incorporated under the laws of Canada or of a province and that has an ongoing operation in Canada;

(b) an enterprise, other than a corporation described in paragraph (a), that has an ongoing operation in Canada and (i) that is capable of generating revenue and is carried out in anticipation of profit; and (ii) in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses as defined in this subsection, or

(c) an organization or enterprise created by the laws of Canada or a province.

The Regulations further stipulate that a Canadian business does not include a business that serves primarily the purpose of allowing a permanent resident to meet their residency obligations while residing outside of Canada.

The Minister of Citizenship and Immigration has announced that all permanent residents will be required to obtain a Maple Leaf Card in order to identify themselves as permanent residents when abroad. Individuals will be required to provide a confirmed residential address in Canada within 180 days following their first entry into Canada; the card will then be forwarded to that address.

There will be no fee for the first Maple Leaf Card as the department will increase the application fee for permanent residence by $50 (Cdn) to cover this cost. One of the main difficulties with the issuance of the Maple Leaf Card will be the processing time needed. Applicants who must travel within a short period of landing in Canada will not be permitted to do so until they receive their Maple Leaf Card.

All permanent residents will be required to obtain the Maple Leaf Card after June 28, 2002, if they wish to travel abroad. There will be a transitional period for a brief time exempting existing permanent residents from having the card. The period will extend to December 31, 2003. Thus we encourage all to obtain the Maple Leaf Card.

The Maple Leaf Card will have an expiry period of five years. Permanent residents who wish to travel abroad will be required to use the Maple Leaf Card to identify themselves to transportation companies; individuals who do not have a valid Maple Leaf Card will be denied entry onto aircraft.

Permanent residents who are outside of Canada and do not have a Maple Leaf Card will be required to obtain a travel document from a Canadian Embassy abroad. Travel documents will be pro-vided to all who meet the residing requirements. If these individuals do not meet the residency requirements, have been in Canada at least once in the last year, and are appealing a loss of residency determination, they, too, will be provided with a facilitation document. Once these people enter Canada, there will be a determination on whether they can obtain the Maple Leaf Card.

The Act provides the right of appeal for those individuals who have not met the physical presence requirements, resulting in a refusal of a travel document to return to Canada. Individuals will no longer have the absolute right to an oral hearing before the Immigration Appeal Division and will be required to provide all appeal documentation in writing in order for the Immigration Appeal Board to consider an appeal. An exception is made for appellants from visa-exempt countries who will be able to board aircraft and appear at ports of entry where an immigration officer will be required to permit them to enter. Thus, it appears that appeal rights exist for some nationalities and not for others.

Stephen W. Green, B.A., LL.B., is a Partner at Green and Spiegel and certified by the Law Society of Upper Canada as a Specialist in Immigration Law. He may be contacted at: Tel. 416.862.7880 ext. 247, Fax 416.862.1698, E-mail stepheng@gands.com, Web site www.gands.com.