Hi Guys in a similar situation considering moving back had been in Canada for 12 weeks PR April 19 and now looking to move back PR expires April 24. My query is if they do flag me at the POE and I file a Notic of Appeal can I travel back to India whilst waiting for my case also will it be wise to sponsor my wife or mother via a friend to come visit me during that duration
@Ponga effectively answered your question.
One part warrants some emphasis: since you are already in breach of the Residency Obligation, and not by just a little, if keeping PR status is a priority for you then traveling abroad again would dramatically increase the risk of losing PR status. This is true regardless how it goes at the Port-of-Entry, including:
-- scenario 1 as described by
@Ponga, in which you are waived into Canada without being subject to an examination regarding RO compliance, noting that as long as you have a valid PR card you could travel internationally BUT you would be taking a big risk to do so
-- scenario 2 as described by
@Ponga, in which you are examined as to RO compliance, but then waived through; international travel would, again, be taking a big risk
-- scenario 3 as somewhat described by
@Ponga, albeit the scenario in which an inadmissibility report is prepared warrants clarification; the main thing remains, whether allowed into Canada without being issued a Removal/Departure Order, or being issued a Removal Order and entering Canada and appealing, either way any international travel in the meantime means increasing the risk of losing PR status
-- As noted, the response by
@Ponga states the gist of what you need to know, part of which I emphasized above. The rest of this is more about clarifying some technical elements of the process when a 44(1) Report for Inadmissibility is prepared, and unless you plan to be answering questions by others about these procedures, or you are otherwise interested in this level of detail, NO NEED for you to read the rest of this post.
3. You are allowed to re-enter and after being questioned by CBSA a 44(1) report is created which could lead to your PR status being revoked by IRCC (not CBSA) for breaching the R.O.
You would be allowed to remain in Canada pending a final decision and could appeal if it is not a positive outcome.
4. You are found to be inadmissible by CBSA for reasons other than the breach of your R.O. and may not be allowed to re-enter.
. . . for clarification . . .
Regarding: 3. You are allowed to re-enter and after being questioned by CBSA a 44(1) report is created which could lead to your PR status being revoked by IRCC (not CBSA) for breaching the R.O.
The standard procedure at the PoE when CBSA border officers determine a returning PR is in breach of the RO is:
-- examining CBSA officer prepares 44(1) Report, which is specifically for inadmissibility due to a breach of the RO
-- that Report is referred to a second CBSA officer who reviews it (for validity) and who also interviews the PR to determine if there are H&C reasons for allowing the PR to keep PR status despite being in breach; this almost always takes place while the PR is still in the PoE and BEFORE the PR is allowed to "re-enter" Canada, even if the second officer reviewing the Report interviews the PR telephonically. This results in one of the following:
-- -- Report set aside, PR allowed to proceed into Canada
-- -- Report upheld and a Removal/Departure is issued (again by the reviewing CBSA officer, not an IRCC official), and then the PR is allowed to proceed into Canada (PR must appeal this to lawfully remain in Canada more than 30 days)
-- if the Inadmissibility Report (for a RO breach) is prepared, but no qualified second CBSA officer is available to promptly do the review, the PR may be allowed to enter Canada pending a later review of the Report; this is NOT the usual process, but an exception; the follow-up review is still conducted by a CBSA officer (NOT IRCC)
Some additional observations about this procedure:
This is in regards to PRs in breach of the RO; the typical procedure is COMPLETED while the PR is still at the PoE, and BEFORE the PR is allowed to re-enter Canada. That is, the FINAL decision is made then and there (with some exceptions when a reviewing officer is not available), and it is made by a CBSA officer, and to be clear if that is a negative decision, meaning a Removal/Departure Order is issued, that is a final decision terminating the PR's status -- it is subject to appeal, and if the PR prevails in the appeal that will result in setting aside this FINAL decision terminating PR status, but absent relief attendant an appeal, this decision is it, the final decision terminating the PR's status.
While the distinction between decision-making and actions by CBSA versus IRCC does not mean much to the affected PR, for those of us who follow these matters and are relying on what is officially reported about actual cases in published IAD and Federal Court decisions, distinguishing those cases involving CBSA versus those involving IRCC can provide significant insights. Actions related to 44(1) Reports for RO breach initiated at a PoE are readily recognized (usually, with some exceptions) because the Minister of Public Safety is a party in the appeal process. In contrast, the Minister of IRCC is the government party (likewise, with some exceptions) in appeals from both visa office decisions denying a PR TD and decisions by IRCC in local inland IRCC offices where a Residency Determination has resulted in a 44(1) Report and Removal Order (this procedure can occur attendant an application for a PR card or a PR's sponsorship application when the PR makes the application while in RO breach, or at some later stage of the process is determined to be in breach).
In addition to some recent cases indicating a stricter approach to issues like qualifying criteria for the accompanying-citizen-spouse RO credit advocated by the Minister of IRCC (whose representative has specifically been advocating a who-accompanied-whom approach in many cases, for example), compared to the Minister of Public Safety (whose representative somewhat recently did not advocate the who-accompanied-whom approach even in a situation where the IAD hinted that could be an issue), there have long been many cases indicating IRCC visa officers (in making PR TD application decisions) approach RO compliance cases, including assessment of H&C factors, significantly more narrowly and strictly than CBSA officers screening returning PRs at a PoE. (This comes with serious caveats given gaps in the sources, which is among the many reasons why it is so difficult to forecast how things are likely to go even though we know a great many of the factors that influence what happens.)
Notes:
-- There continues to be rather few RO cases involving IRCC local offices (mostly cases arising from PR card or sponsorship applications) in either the anecdotal reporting here, or in published IAD decisions.
-- Historically, for many years, it appeared that cases arising from the denial of a PR TD well exceeded PoE 44(1) Report cases. That said, toward the end of the Harper/Conservative government era and continuing (notwithstanding the extent of its abatement during the peak of Covid), it has appeared that Public Safety cases (as in PoE, CBSA cases) have been an increasing share of the IAD cases, suggesting a general trend toward stricter enforcement of the RO at the PoE (albeit, again, significantly abated during the peak of Covid).
Regarding: 4. You are found to be inadmissible by CBSA for reasons other than the breach of your R.O. and may not be allowed to re-enter.
If CBSA border officials determine the traveler is a Foreign National (not a PR), and inadmissible, the traveler can be denied entry and in most cases probably will be.
Otherwise, inadmissible PRs are entitled to enter Canada.
In particular, if a PR is determined to be inadmissible based on serious criminality or security concerns, or on the grounds of misrepresentation, they are still entitled to enter Canada but they may be detained depending on the nature of any threat they pose, which of course is subject to a high standard comparable to those applicable to arresting and detaining individuals generally.
The follow-up procedure, when a 44(1) Inadmissibility Report is prepared at the PoE, is different for Reports based on RO breach versus Reports based on other grounds for inadmissibility (criminality/security/misrepresentation). I described the procedure in RO breach cases above; again, these are typically reviewed then and there, while the PR is still at the PoE, and a CBSA officer makes the decision whether to set the Report aside (such as for H&C reasons) or to issue a Removal/Departure Order (decision terminating PR status).
In contrast, if border officials prepare a 44(1) Inadmissibility Report based on criminality/security/misrepresentation grounds, the PR is then allowed to enter Canada (unless circumstances warrant the PR be detained) and the Report goes to IRCC, and local office IRCC officials will decide whether to proceed with a hearing.
