Section 44 Report after CBSA allowed Entry

[Collino44]

I became a PR in 2009 and left Canada some months after landing. I was having a messy divorce back at home just after landing and the effects of the divorce and giving up my tender daughter was devastating. I visited Canada in 2012 and 2014 but was not in a state of mind to stay. I tried to come with my new wife but she was denied visa. I stayed back in my country to nurture a new family until November 2023 when I returned to Canada.

At the Toronto border I plainly told the officers my life situations and asked them to use their discretion in my favour. They examined me for close to 3 hours and finally allowed me entry without conditions and asked that I quickly get a replacement PR card.

Two weeks later I applied for a new card and after waiting for 10 months IRCC came back with section 44 report still on the residency obligations that the CBSA officers had pardoned. Is the IRCC allowed to do this please?

 

[Ponga]

It's no surprise that they `finally allowed you to enter'...because they MUST allow a PR to enter Canada (unless they are deemed inadmissible for reasons other than residency compliance).

The short answer is, yes. IRCC can do that.

The problem, for you, is that you apparently had no idea that the CBSA officer ended up submitting the 44(1) report. It's probably a good idea to speak with a qualified/experienced lawyer to determine next steps.

Good luck!

 

[Collino44]

Thank you. I am not sure that it was the CBSA that submitted or recommended the section 44 report. People said if the wanted to do so that they would have told me to enter but to expect a letter or phone call from them. None of that happened.

 

[scylla]

I became a PR in 2009 and left Canada some months after landing. I was having a messy divorce back at home just after landing and the effects of the divorce and giving up my tender daughter was devastating. I visited Canada in 2012 and 2014 but was not in a state of mind to stay. I tried to come with my new wife but she was denied visa. I stayed back in my country to nurture a new family until November 2023 when I returned to Canada.

At the Toronto border I plainly told the officers my life situations and asked them to use their discretion in my favour. They examined me for close to 3 hours and finally allowed me entry without conditions and asked that I quickly get a replacement PR card.

Two weeks later I applied for a new card and after waiting for 10 months IRCC came back with section 44 report still on the residency obligations that the CBSA officers had pardoned. Is the IRCC allowed to do this please?

CBSA officers cannot "pardon" residency obligation. Whether you are able to renew your PR card or not without meeting the residency obligation is a decision that sits entirely with IRCC. So yes, they are certainly allowed to do this.

Did you apply for the PR card renewal under H&C?

 

[Collino44]

Yes I did. That was the only available option at the time.

 

[scylla]

Yes I did. That was the only available option at the time.

I second the recommendation to hire a lawyer.

IMO you should have remained in Canada for two straight years before submitting the PR card renewal application. Unless there's information you're not sharing, your H&C case is going to be very weak.

Good luck.

 

[Besram]

It's no surprise that they `finally allowed you to enter'...because they MUST allow a PR to enter Canada (unless they are deemed inadmissible for reasons other than residency compliance).

The short answer is, yes. IRCC can do that.

The problem, for you, is that you apparently had no idea that the CBSA officer ended up submitting the 44(1) report. It's probably a good idea to speak with a qualified/experienced lawyer to determine next steps.

Good luck!

Reading OP's post, it doesn't look like he/she was issued the report as a result of the border crossing. Instead, OP applied for a PR card after being let into the country, and was most likely issued the report in response to that application, not as a result of the application to enter at the POE.

@Collino44 , the common advice in the forum after being let into the country without being issued a 44(1) report is to remain in Canada until you are in compliance with the residency obligation, and not apply for a PR card until such time. There is no obligation to have a valid PR card when you live in Canada (even though it makes certain things easier). I know you said CBSA have asked you to do this, but again there is no obligation to do so.

Unfortunately, now you are only left with two options: either appeal the decision, or accept the decision and leave Canada in line with a potential removal order that may have already been issued, or will be issued.

Appeals are not easy to win and become more difficult to win the larger your shortfall of days in Canada is. Definitely advisable to speak with a legal professional to get an opinion on chances of success, so you don't waste time and money.

 

[Collino44]

No, there's no other information apart from my personal family issues which I shared with CBSA. I didn't know about waiting for 2 years before applying until now. I just followed the advice of the CBSA officers that I should quickly pick up a new PR card. That was all.

 

[Collino44]

Well I hear that even the CBSA can act on compassionate grounds at the border and refuse to issue or recommend a section 44 report. I hope that was what they did for me. Fingers crossed.

 

[Besram]

Well I hear that even the CBSA can act on compassionate grounds at the border and refuse to issue or recommend a section 44 report. I hope that was what they did for me. Fingers crossed.

I don't fully understand what you mean by this. To clarify: CBSA has nothing to do with this anymore. When you were examined at the border, they (apparently) chose not to issue you a report. But then you chose to apply for a PR card, which is processed by IRCC. ICRR then determined you don't meet the residency obligation and did not deem your H&C reasons sufficient to retain your PR status.

They made a different decisions than CBSA, this is true - but every time you make an application to CBSA or IRCC, you always run the risk again of receiving a decision that is not in your favour. And this happened in your case.

If you have received a 44(1) report from IRCC, that's it. It's been issued, and you have the two options I outlined above. CBSA can't make that undone - in fact, they won't even get involved.

 

[armoured]

At the Toronto border I plainly told the officers my life situations and asked them to use their discretion in my favour. They examined me for close to 3 hours and finally allowed me entry without conditions and asked that I quickly get a replacement PR card.

Whether intentionally or not, that was bad advice from them. (I generally suspect that CBSA wishes to avoid the administrative work and sends it to IRCC by letting people in; I've wondered whether the advice to apply for a PR card is well intentioned - or not; this rather implies the latter.)

Two weeks later I applied for a new card and after waiting for 10 months IRCC came back with section 44 report still on the residency obligations that the CBSA officers had pardoned. Is the IRCC allowed to do this please?

-When you say 'they came back with section 44 report', what exactly do you mean? They sent you the formal notice and a copy? Is there text there or similar formally giving you a certain period of time in which to appeal? What does the main letter/correspondence say?

-Regardless, it seems you will need a lawyer if you wish to appeal this. You can appeal without a lawyer but that may not give you good chances.

 

[Collino44]

The letter said they have issued the attached report and forwarding same to the Minister's delegate. Then that I will get a formal notification about that and a chance to make a formal input and submissions before the Minister's delegate takes a decision one way or the other. I have not received that notice from the IRCC.

 

[scylla]

Well I hear that even the CBSA can act on compassionate grounds at the border and refuse to issue or recommend a section 44 report. I hope that was what they did for me. Fingers crossed.

They can. But this is only for allowing you to enter Canada. CBSA isn't the decision maker on renewing your PR card and keeping your PR status.

 

[armoured]

The letter said they have issued the attached report and forwarding same to the Minister's delegate. Then that I will get a formal notification about that and a chance to make a formal input and submissions before the Minister's delegate takes a decision one way or the other. I have not received that notice from the IRCC.

This gives some more chance in that no decision has been made, and you will get a chance to provide more information / make your case for H&C relief. Consider that this is the time you have been given to decide to/hire a lawyer and consider carefully what should be in your case and to present it well. This will include looking at what is in the report (and if anything is incorrect or left out).

A lawyer can also advise if you should wait or if it's better to submit something quickly.

In the next instance, it is the Minister's delegate (another IRCC officer, basically) who will make the next decision on disposition of your file. After that stage it will be the appeal and a more 'formal' procedure (in which it may be both lengthy and cumbersome and expensive to succeed).

Note, I'm not attempting to say whether your case is a good one or not.

 

[Collino44]

I thank everyone who has contributed to give me perspectives on this. It is still a long way to uhuru, obviously. Much appreciated, guys.