Over the last few weeks I have written about the legal obligations of PRs and maintaining your PR status. However, what are your appeal rights if a negative decision is made with regards to your PR status, either in Canada or at a Visa office abroad?


When and How to Appeal a Negative Decision
If a negative decision is made with regards to your PR Card renewal application and you are in Canada, you will be issued with an order to leave Canada. You have 30 days after you receive the negative decision to file an appeal with the Immigration Appeal Division (“IAD”). You cannot be removed from Canada during these 30 days and if you file an appeal you cannot be removed until a decision is made with respect to your appeal.


If a negative decision is made outside of Canada by a visa officer that you have lost your PR status, you have 60 days to appeal the decision to the IAD. If you would like to attend your hearing at the IAD, you may be able to apply for a travel document from the IAD. The IAD has the power to order that you be allowed to return to Canada to attend your hearing if you prove that it is necessary.


Filing an Appeal & Preparing for your Hearing
While it is possible to represent yourself in your appeal, this is a complicated legal process and the consequence of the final decision is that you may lose your PR status and be removed from Canada. Filling the form to register your appeal is a simple step but preparing your appeal and defending yourself at your hearing is anything but simple. I often meet appellants who come to me after their appeal has been refused, but at that point it is very difficult for us to change the decision. Therefore if you have an appeal you should ensure that you work with your counsel to make the strongest case possible and present all your evidence at your appeal hearing.


Depending on where you are, current wait times from receiving a hearing date range from 12 to 18 months. It is important to know that your ultimate chance of being successful in your appeal depends in part on what you do after your appeal is filed. Do you remain in Canada and become more established and committed to making Canada your permanent home? For example if you were not in Canada 730 days, remaining in Canada from the time you file your appeal up to your hearing date, and taking steps to become established, will assist you in proving that there are adequate Humanitarian and Compassionate grounds in your case.


It is crucial that you are well prepared for your hearing and file all documents you intend to rely upon within the set deadlines of the IAD. In some cases there are relevant witnesses that we want to bring to the hearing to support your appeal. Your appeal is your chance to present all your evidence to the IAD but it is also your last chance to present evidence. After your hearing you will not be able to present any new documents or information and your appeal will be decided based on the existing evidence.


Residency obligation appeals involve two parties: you and the Minister of Immigration’s counsel. You will be able to present all the relevant evidence and the Minister's counsel will have a chance to cross-examine you. You should also be prepared for the Minister's counsel to fight against your case and argue why you should not be allowed to remain a PR of Canada.


Possible Outcomes
Once your hearing has taken place you are faced with two possible outcomes. The IAD may grant your appeal based on legal grounds (for example the calculation of the number of days you were in Canada was incorrect), or on humanitarian and compassionate grounds (these grounds were discussed in depth in my article last week). Or if the IAD does not agree with your appeal they may hand down a decision where you lose your PR status and a departure order is issued against you. A decision of the IAD may be appealed to the Federal Court of Canada (by either party).


If you end up losing your PR status you will need to apply for a visa before travelling to Canada. Should you wish to become a PR again, you will need to qualify under one of the existing programs and submit a new application and start all over again.
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Up to 300,000 people come to Canada as “immigrants” each year. When immigrants enter Canada for the first time, or “land” in Canada, they are processed and their information is taken to issue them with a permanent resident card. What is the legal status of immigrants and what are their legal rights and obligations as residents allowed to live permanently in Canada? No matter how welcoming the immigration officer at the airport or border is, there is no time for him or her to explain the intricacies of the immigration system to each new immigrant.

So what is your status as a permanent resident in Canada? In an effort to help you to better understand your status, below is a summary of the key points that immigrants must understand about their legal status in Canada, their rights and what they must do to maintain their status.

Legal Status
Immigrants to Canada are granted “permanent resident” or “PR” status when they land in Canada. However, they remain citizens of other countries.

Court cases over the past thirty years have established that PRs of Canada are protected under under the Charter of Rights and Freedoms, and are granted most of the same rights and freedoms, such as the right to life, liberty and security, equal treatment under the law, and so on. This means being free to choose where you want to live and what you do with your life in Canada. PRs also have the right to get most social benefits that Canadian citizens receive, including health care (e.g. OHIP coverage when you meet the provincial requirements). And once you meet the conditions, as a PR you may apply to become a Canadian citizen.

There are also a few critical limitations on PRs in terms of engagement in civic life in Canada. Only Canadian citizens are permitted to vote or run for public office, and in hold certain jobs that require a high-level security clearance. In return for the rights and privileges that you enjoy as a PR, you are required to respect all Canadian laws (federal, provincial and municipal). And unlike citizens, whose status as citizens is protected unless in cases where the citizenship was obtained by fraud, PRs can more easily lose their permanent residence status. For example, not meeting the residency obligation or being convicted for a serious criminal offence may result in you losing your PR status

Proof of Legal Status and Losing your PR Status
One of the biggest misconceptions is that when your PR Card expires you lose your PR status in Canada. PRs of Canada are issued with PR Cards and must carry their valid PR Card (or a PR Travel Document) when travelling to Canada by air or any other commercial carrier. However, a valid PR Card, or lack thereof, is not determinative of your status as a PR in Canada.

You can only lose your PR status if you go through an official process. For example if you apply to renew your PR card or apply for a PR Travel Document but do not meet the conditions, an adjudicator can determine that you are no longer a PR after an inquiry or appeal. Even if you did not meet the residency obligation for maintaining your PR status, you are still a PR until an official decision is made with regards to your status. Alternatively, you may renounce your PR status and no longer want to be a PR. And finally, once you become a citizen your legal status changes from PR to citizen.

Your Role in Maintaining your Legal Status
It is up to you to know your legal status and make efforts to maintain it. Being unfamiliar with the law or acting on incorrect information gathered from family or friends, or even unqualified representatives, is not an acceptance defence to not adhering to the law. The consequence of losing your status can result in you being removed from Canada. All the more reason for you to be proactive in maintaining your legal status in Canada.

Coming Next...
In the coming weeks I will explore the issues surrounding permanent residence including conditions and requirements when applying to renew PR cards, understanding residency obligations and what to do if you face a negative decision with regards to your PR status in Canada.