H&C vs PoE

[cdx]

I have a case where after consulting with an immigration lawyer it might seem as "any other case", but I wanted to ask the forum, perhaps @dpenabill or other members that might have insight:

I landed in about five years ago by having a Canadian spouse. Around this time the spouse was becoming verbal and physically abusive. I wasnt sure where to go and the police told me that by reporting him to the police there would be consequences which I thought would escalate the situation and put me in more danger. I asked for help from victim counsler, was advised against going to a shelter and as the spouse had even changed the lock on our family home, I had to eventually leave the country as I had nowhere to stay or the means to take care of me. My PR card ended up with the spouse and they witheld it while I was abroad, threatening me that if I do not comply with their demands I will not get the card. They kept saying that the card is probably expired etc.

I took care of my grandmother who was living in a country with bad healthcare where you need a dependent to be there. She was in and out of hospitals, care homes. I have some transcripts and photo to back this up. She passed away and I was later on a medical leave after this, and some months after I was receiving treatment while working and later ending up on medical leave again most of last year fall and until this spring.

The card did end up with me, but only years after when the RO obligation had been breached. At this time I have documentation I was under treatment. Later that year I was on medical leave as mentioned and also my mother suffered a car crash where she was almost killed, the other passenger died.

I was able to return to Canada, and see from other cases that with only 40 days in Canada the breach is high and I don't know if my H&C are enough to weigh it out.
I tried to structure my letter to IRCC answering when was my earliest return etc. Now I have to go back home undergo more treatment.

Is it better/worse to send in my H&C PR card renewal application and leave, or should I just leave and then try to not get written up at the border?

My worries are if I apply and get a decline on the PR card with the H&C in mind, I might be flagged/written up the 44(1) already by the people processing the H&C?

Or is that indifferent and when I am back some month later after treatment I can try to explain to the border what is my situation and see there, while the H&C case is still in progrwss/hasn't been touched yet?

Thank you for your answers, you are also free to send a dm if the case is too specific with all these aspects in it.

 

[canuck78]

How long did you spend living with your spouse in Canada? How much time did you spend in person dating and living together married abroad? How many days have you spent in Canada in the past 5 years? Did you have other family members in your home country that would have cared for your grandmother for example if you had remained in Canada? You mention your mother why could she not care for you
grandmother? If you had access to healthcare in Canada why did you not return to Canada and why are you not remaining in Canada now? You will have to update any PR card renewal based on H&C and declare you have left Canada. That will likely have a negative effect on the application.

 

[cdx]

We were together about two years. Towards RO I have 40 days. Mother was limited as she lived in another country, had her own illness and with covid lockdown could not move freely. Grandmother did not have others that could care for her than me. Due to being out of Canada I did not have access to provincial healthcare. I have a path of theraphy and radiography that I had scheduled and need to show up for.

 

[canuck78]

We were together about two years. Towards RO I have 40 days. Mother was limited as she lived in another country, had her own illness and with covid lockdown could not move freely. Grandmother did not have others that could care for her than me. Due to being out of Canada I did not have access to provincial healthcare. I have a path of theraphy and radiography that I had scheduled and need to show up for.

2 years living together in Canada and abroad? How much time living in Canada after getting PR?

 

[dpenabill]

I have a case where after consulting with an immigration lawyer it might seem as "any other case", but I wanted to ask the forum . . .

. . .

I was able to return to Canada, and see from other cases that with only 40 days in Canada the breach is high and I don't know if my H&C are enough to weigh it out.

Is it better/worse to send in my H&C PR card renewal application and leave, or should I just leave and then try to not get written up at the border?

My worries are if I apply and get a decline on the PR card with the H&C in mind, I might be flagged/written up the 44(1) already by the people processing the H&C?

No one here can reliably assess the strength of the H&C considerations in your case. Not sure what @canuck78 is driving at, but there is NO way to reliably evaluate here, in this forum, the probability you will succeed in saving your PR status based on H&C relief.

Generally everyone in this forum (including me) should defer to the advice and counsel obtained from a legitimate Canadian immigration lawyer. That said, not all lawyer consultations are created equal, or worth the same. Free consultations, for example, are worth little if any more than what you have paid for.

Thus, if you have actually paid for advice and counsel from a Canadian immigration lawyer, that is far more reliable than anything any of us here can offer. There are exceptions of course, but a lawyer's input is especially better in regards to evaluating a case that depends so much on particular personal factors as does a case relying on H&C relief; the H&C case is the kind of case in which personal details are critical, way more detail than what should be shared in a forum like this.

I generally avoid giving advice, BUT if you have not in effect retained a lawyer, that is if you did not pay for the consultation with a lawyer, the best advice I can offer is to do so BEFORE you leave Canada.

And since even the BEST H&C case is at best tricky, and at best there is a significant risk of it NOT succeeding in saving PR status, I will even go so far as to advise that staying IN Canada and seeking appropriate treatment here in Canada, if possible, is by far, and I do mean BY FAR, the safer way to go. And in the meantime, remember the conventional wisdom is clear: do NOT apply for a new PR card UNTIL you are in compliance with the RO.

Your Particular Situation; Particular Questions:

"Is it better/worse to send in my H&C PR card renewal application and leave, or should I just leave and then try to not get written up at the border?"​

Again, best to go with advice from a qualified lawyer that you have retained (not just a lawyer you have talked to).

Apart from that, you are right about just 40 days IN Canada (if that is all the RO credit you have) means you have a very tough to successfully make H&C case. The total amount of time IN Canada within the last five years is the biggest, most influential factor in most H&C cases. If you leave Canada again, this looms even larger.

Be aware, in contrast, that even quite compelling reasons to be in a country other than Canada do not necessarily have as much positive influence as many seem to think. After all, many reasons why an individual might be outside Canada can weigh in favour of denying H&C relief -- they indicate it is OK for the PR to be living outside Canada (it appears, for example, they can live outside Canada without fear of persecution or other undue hardship) and there is little reason in favour of allowing someone to keep PR status if they have reasons to be outside Canada.

Sure, even in cases where the PR has not been IN Canada much, H&C relief can be allowed where the reasons for being outside Canada virtually blocked the PR from returning to Canada and are thus, in a sense, a reason for IRCC to not penalize the PR for matters outside the PR's control that kept the PR from being able to come to Canada. This is one of the situations in which the precise details can have a big influence and it is far better to go through the relevant details with a qualified lawyer. Even then, I suspect many if not most lawyers will be unwilling to give a confident forecast about how it would go, but rather more likely to emphasize the risks.

Leading to leaving Canada again.

There is NO doubt, none, that leaving Canada now will increase the risk of losing PR status by a lot.

And, to be clear, EVEN if you get a new PR card, that will NOT guarantee you won't be subject to inadmissibility proceedings when you next return to Canada. When you next arrive at the Port-of-Entry, if you have not been IN Canada for more than 730 days within the previous five years as of that day, you are in breach of the RO, and any PR returning to Canada who is in breach of the RO is at risk of inadmissibility proceedings. Sure, if you have a new PR card that increases the odds that when you arrive here, at the PoE you will be waived through, not questioned about your RO compliance. And while no one here can reliably quantify those odds, there is a very substantial if not high risk of RO enforcement DESPITE presenting a NEW valid PR card . . . and the longer you are outside Canada, the bigger that risk will be.

Of course the bigger risk is that IRCC will not approve and mail a new PR card if you apply now relying on H&C relief, not without further proceedings to conduct a formal Residency Determination.

Leading to . . .

"My worries are if I apply and get a decline on the PR card with the H&C in mind, I might be flagged/written up the 44(1) already by the people processing the H&C?"​

While the precise way IRCC handles the PR card application can vary some, generally IRCC will not "decline" a PR card application but, rather, if it does not allow H&C relief and approve issuing a new card based on the application as made, IRCC will prepare a 44(1) Report for inadmissibility and refer the matter to an officer, a "Minister's Delegate," who will then give you a further opportunity to make your H&C case and decide whether to allow you to keep your PR status or to issue a Removal Order. If you are outside Canada during this process that complicates things. In many cases (not all but most) like this, if IRCC becomes aware the PR has left Canada in the meantime, it will simply put a hold on the PR card application and wait for the PR to either make a PR Travel Document application from outside Canada or for the PR to arrive at a PoE (for PRs able to travel to Canada without getting a PR TD) and be examined for RO compliance. There is almost certainly an alert, what here in the forum we refer to as a "flag" on your file, to alert both IRCC officers abroad and CBSA officers in a PoE that you should be examined for RO compliance. With a predictable outcome, depending on how strong your H&C case is.

Even if IRCC approves the PR card application, the odds are high it is not mailed but rather you would need to pick it up at a local IRCC office here in Canada. And here too, there will almost certainly be an alert in your file, so that, again, your RO compliance is examined either by a visa officer if you apply for a PR TD or at the PoE upon your arrival here.

And, as I noted, even if IRCC approves issuing a new PR card and mails it to an address where you have someone you trust to forward it to you abroad, even in this scenario there will likely be an alert in your file and you will be subject to RO compliance screening at the PoE when you arrive. If per chance you did get a new PR card this way, if you return to Canada soon it may go well, no problem. The longer you remain abroad, the bigger the risk that you will be subject to inadmissibility proceedings the next time you return here.

EDIT to ADD . . . almost forgot something important . . . here too regarding . . . "My worries are if I apply and get a decline on the PR card with the H&C in mind, I might be flagged/written up the 44(1) already by the people processing the H&C?"

If you make a PR card application before leaving, and whatever procedure IRCC goes through to get to a negative decision resulting in what many would describe as denying the application (this would usually be by issuing a Removal Order), that terminates your PR status UNLESS you timely appeal and win the appeal. So when you next came to Canada you would be Foreign National, NOT a PR. The question would be whether to allow you entry as a visitor or some other temporary resident status, not whether to prepare a 44(1) Report.

 

[cdx]

Thank you and I appreciate your answer.
With regards to getting a removal order from the IRCC. This is where the lawyer told me “as far as I know it’s just a rejection of the card” and then at the PR application the wording is if there are any H&C grounds for me to keep my status and not the card.


also as is often the advice on this forum. To stay silent and apply only after RO is met.

For me with 40 days in Canada before leaving it might be best to just silently depart and see at the border how it goes with the expired card.

 

[dpenabill]

Thank you and I appreciate your answer.
With regards to getting a removal order from the IRCC. This is where the lawyer told me “as far as I know it’s just a rejection of the card” and then at the PR application the wording is if there are any H&C grounds for me to keep my status and not the card.


also as is often the advice on this forum. To stay silent and apply only after RO is met.

For me with 40 days in Canada before leaving it might be best to just silently depart and see at the border how it goes with the expired card.

I usually defer to lawyers, but there are exceptions.

It appears this lawyer is not familiar with the procedures for processing PR card applications, and in particular not familiar with procedures involved in processing complex permanent resident card applications referred by PRCC-Sydney (the primary Permanent Resident Card Centre in Sydney) to the Domestic Network, which are here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/complex.html . . . and specifically the procedure for PR card applications that are referred to the "Domestic Network" because the applicant has not complied with the Residency Obligation and the PRCC has not made a positive decision to allow H&C (if the PRCC makes a positive H&C decision it will approve issuing a PR card).

For the procedure that is followed to determine is there are sufficient H&C reasons to allow relief and what follows if the examining officer is not satisfied there are and thus, as I cautioned in my previous post, decides to prepare the 44(1) Report, see near the bottom of the webpage linked above.

For those not familiar with these procedures, they can be difficult to work through; the nutshell version is as I previously said: IRCC does not deny the application but, rather, goes through the 44(1) Report process which either results in a Minister's Delegate allowing H&C relief and issuing a PR card, or the Minister's Delegate issues a Removal Order, a decision which terminates PR status.

A PR card application can be returned, not processed, if for example it is incomplete, lacks sufficient information to process, or is premature (that is, if the current card still valid for more than nine months). A PR card application will also be returned if IRCC determines the person applying is NOT a Permanent Resident. For IRCC policy and practice. Information about this and other PR card application procedures can be found at the following IRCC webpages:

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/renewal-replacement.html​

​

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/permanent-resident-determination.html​

​

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/departmental-policy.html​

There are other resources, including some of the old Operational Manuals which are not at all current but are still considered applicable by IRCC. While those which discuss writing and reviewing 44(1) Reports are relevant, ENF 23 Loss of Permanent Resident Status is the most useful. These can reached by links here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html

 

[scylla]

Thank you and I appreciate your answer.
With regards to getting a removal order from the IRCC. This is where the lawyer told me “as far as I know it’s just a rejection of the card” and then at the PR application the wording is if there are any H&C grounds for me to keep my status and not the card.


also as is often the advice on this forum. To stay silent and apply only after RO is met.

For me with 40 days in Canada before leaving it might be best to just silently depart and see at the border how it goes with the expired card.

You need to find a new lawyer. This one is getting basics wrong.

 

[cdx]

Thank you again for the great answers. I feel to be honest that after I have been researching this forum and the manuals and IRCC website I know more than that lawyer, which is why there was a red flag when they told me about it.