This has been asked many times before, but I see that everyone has their different situations. I am up for renewal starting this April and any insights would be really useful as it seems the wording has changed from few years back on who is accompanying whom.
-I got my PR late 2018, did a short landing then headed back to where I worked at the time, the UK.
- I married a Canadian citizen afterwards, where she decided to travel to the UK and also found a job there. (we are still in the UK)
- In December 2019, our son was born in the UK, and he has been issued his Canadian citizenship certificate (Canadian mother)
- In October 2020 and during the pandemic, my wife began her PhD studies in the UK and she still studying towards it.
I am bit a confused as I recall in 2019 there was a clear statement on one of the CIC guidelines that it didn't matter who is accompanying whom, but from what I gather now things are different? It is still our intention to go to Canada permanently, we just haven't found the right employment opportunities there yet. We have been visiting regularly, but only short visits.
Do I need to show that I was accompanying here the past 5 years or do I need to show the past 2 years only?
Has there been any cases where the PR renewal was refused based on the who accompanying whom or it is all very fluid?
any help would be appreciated.
Regarding: "
I am up for renewal . . . we are still in the UK . . . "
A PR must be IN Canada to make a PR card application.
PRs do not need to renew their PR card to keep their PR status. PRs living abroad are NOT expected to renew their PR cards UNLESS and NOT UNTIL they have returned to Canada, and are IN Canada. In the meantime, they would obtain a PR Travel Document to use for travel to Canada (or, if possible, travel via the U.S., using land border Port-of-Entry to get into Canada).
A PR can travel to Canada briefly, and while in Canada make the application for a new/renewed PR card (the applicant has to affirmatively declare they are IN Canada in order to properly complete a PR card application), but unless the PR is actually staying in Canada, it is rather obvious the PR is gaming the system in doing this (just the address and work history tells the tale). For many, perhaps most, no big deal, all they are risking is non-routine processing resulting in a lengthy processing timeline and potentially being required to do an in-person PR card pick-up. And some doing this claim they got a new PR card with no problems at all, no non-routine processing, no delays, PR card delivered by mail (but must be to a residential address IN Canada, not a mailing address).
For a PR with potential issues, however, the risk is a bit more severe if the circumstances in making the PR card application (PR clearly living abroad coming to Canada just to make a PR card application) trigger elevated scrutiny and that in turn invites more scrutiny of the PR's potential issue, like whether the PR qualifies for credit toward RO compliance based on accompanying a Canadian citizen spouse abroad.
Do you have a potential issue in regards to qualifying for the exception allowed PRs accompanying a Canadian citizen spouse abroad?
This is NOT an easy question to answer. There is at least a significant risk.
How much risk is very difficult to quantify even in the most broad terms. I
do not agree with the characterization posted by
@canuck78, that "
it is very unlikely you would be considered as accompanying your wife abroad," but the IAD decision linked by
@canuck78, which is Diouf v. Canada, 2011 CanLII 59952,
https://canlii.ca/t/fn81r is indeed a case fairly similar to your situation:
PR did not stay long in Canada, met and married a Canadian citizen in the PR's home country, lived together, credit for accompanying spouse denied, decision terminating PR status upheld by the IAD.
But there are other official decisions that disagree with the Diouf decision. And others that agree with Diouf. So forecasting how it will go is, well, difficult at best.
I have addressed this issue at-length, in-depth, both in the topic referenced by
@Ponga here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/regarding-the-ever-popular-discussion-of-a-pr-living-abroad-meeting-r-o.779183/
and much more so here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
The thing is there are indeed a number of cases in which yes, PRs living with a Canadian citizen spouse abroad have nonetheless been denied RO credit based on an analysis of
who-accompanied-whom. Not just the Diouf case. So, again, yes there is some risk.
Be aware that representatives of the Minister of IRCC appearing in IAD and Federal Court hearings have been consistently advocating a who-accompanied-whom approach. See cases I have cited and linked in the other topics linked above.
Regarding Operational Manual ENF 23:
If you saw a "
clear statement on one of the CIC guidelines that it didn't matter who is accompanying whom," that was almost certainly either in the Operational Manual ENF 23 Loss of permanent resident status or a source referring to that (and if you saw it in this forum, odds are it was posted by me). HOWEVER, there have been numerous official decisions, going back even before the 2011 Diouf decision, that have analyzed the credit on the basis of
who-accompanied-whom . . . despite what is prescribed in the operational manual ENF 23, which refers to the language in the Regulation, referring to days the PR "
ordinarily resides" with the Canadian citizen spouse (ENF 23 Section 6.1) , and further states:
"In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. . . . as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant . . . "
HOWEVER ENF 23 is not an official source. It is merely a guideline. It was last updated in January 2015 and that was nowhere near a complete update. These guidelines are being replaced by Program Delivery Instructions (PDIs), noting though that the PDIs are also not official sources so actual practices can differ from what either ENF 23 or the applicable PDIs say.
i did yes, I may have not been clear about this particular point, my wife and I got married in Canada. We stayed in Canada for a couple of months, then back to the UK…
Glad to know that the sponsoring option is still there. My PR card expires Jan 2024, was planning to apply for renewal this May, might give it a go and try renewing…..
I generally steer clear of offering advice (I am not qualified to give advice and this is not a suitable venue for that anyway), but if you are traveling to Canada this year, you might want to seriously consider obtaining the assistance of a reputable immigration lawyer here (perhaps make arrangements prior to trip here). A lawyer may have a better idea what the practical risks are. But more importantly a lawyer should be able to help you navigate your way through this.
While we cannot reliably quantify the risks, we can compare some. Biggest risk for a who-accompanied-whom issue would be encountered in an application for a PR Travel Document. Next biggest risk would be in making a PR card application while you are only coming to Canada for a short trip. You should be aware that you are currently at risk, a lower risk, every time you return to Canada, when you apply for actual entry into Canada (made by just arriving at a Port-of-Entry; many overlook that this constitutes making an application for permission to enter Canada); traveling together with your spouse should pose significantly less risk than traveling alone.
Waiting to apply for a new PR card when you are actually in Canada to stay should make the risk very low, but waiting until you have been here long enough to be here 730 days within the last five years is the only for sure safe approach.
