Why don't you retain a lawyer first? I think they would discuss any appeal case with you.
Section 44 Report after CBSA allowed Entry
- Thread starter Collino44
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Use the search to find more threads on appeals in this forum. This is just one of them:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/h-c-appeal.711665/
https://www.canadavisa.com/canada-immigration-discussion-board/threads/h-c-appeal.711665/
Whether a sponsorship application will trigger an examination into the sponsor's RO compliance is difficult to predict. It definitely can, but it might not. However, the first stage of family class PR sponsorship is examining the eligibility of the sponsor, and given the information included in the application an IRCC official might readily identify a RO compliance issue much earlier in the process than a PR might anticipate.
To apply when in breach is to risk inadmissibility proceedings leading to loss of PR status.
In particular, to make any application that involves inquiry into the validity of PR status can potentially trigger inquiry into RO compliance, and doing this when the PR is in breach is to risk losing PR status. @scylla overstates the risk, but the gist of what @scylla says is the conventional wisdom, which in turn is consistent with what experienced lawyers are known to advise.
That is, the conventional wisdom says that while in breach of the RO (thus meeting the definition of inadmissible) do not make an application that will entail screening PR status and thus could trigger assessment of RO compliance potentially leading to inadmissibility proceedings.
But to the extent you are asking whether the risk is less for a PR who has been settled in Canada for over a year, albeit still short of RO compliance, yes. Extent of the breach is probably the biggest factor that influences if and when the fact of the breach is even noted, and then again when noted if specific inquiry into RO compliance is initiated, and if there is a RO compliance inquiry, likewise the extent of the breach is probably the biggest factor considered when the officer handling the application is deciding whether to prepare a 44(1) Report formally commencing inadmissibility proceedings.
However, this is like asking whether it will be OK to drive 10k over the speed limit in contrast to 20k over the limit, and doing so in regards to traveling through a school or community safety zone that is known for targeted radar enforcement (because the sponsorship application for sure involves screening the validity of the sponsor's PR status). So say 5k over is not likely to trigger a traffic stop and ticket. Maybe 9k will be OK. Will 10k slide by as well? One or five km more than that? Meanwhile most of the time on most roadways there are scores of us who are driving 10 to 20k over the limit and not worrying much about getting a ticket. But we might get a ticket.
Ask a cop or lawyer. "Obey the speed limit" they are professionally obligated to advise (noting some lawyers, and some cops, may be willing to offer how-to-get-away-with-it advice to some clients). If you don't, you risk getting a ticket. Meanwhile, again, most of the time on most roadways there are scores of us who are driving 10 to 20k over the limit and not worrying much about getting a ticket.
So, getting back to making a sponsorship (or PR card) application while in breach, and the difference it makes if the PR is 500 days short of RO compliance versus 200 days short. To be clear, this is NOT about getting a ticket and paying a modest fine. So yes, there is a lower risk applying when just 200 days short versus 500; but nonetheless, there is still that risk, that the application will result in a formal Residency Determination which could lead to a 44(1) inadmissibility report being prepared. That, in turn, could lead to a decision terminating PR status, and if that happens the best case scenario is paying a lawyer many hundreds if not thousands of dollars to help you convince the IAD to allow you to keep status for H&C reasons, with no guarantee, none at all, that will succeed. And meanwhile the sponsorship application is either denied or at best on hold.
Some Procedural Clarification/Quibbling:
The only events that lock in the number of days for calculating RO compliance are (see IRPA section 28 and IRPR regulation 62):
-- date a visa office abroad makes a decision that the PR has failed to comply with the RO (this is in regards to PR TD applications)
-- date a 44(1) Report is prepared on RO breach grounds
and
-- date a PR card application is made, but this only operates in the PR's favour; that is, if the PR was in compliance with the RO on the date of the PR card application, the PR is entitled to a five year card even if after that date, and before a PR card is approved, the PR is outside Canada so long as to no longer be in RO compliance. Note, however, that this does not preclude IRCC requiring an in-person card pick-up and if in an interview attendant that IRCC concludes the PR is in breach at that time, proceeding with preparation of the 44(1) Report as of that date . . . getting a new PR card is little consolation if the PR is then determined to be inadmissible and issued a Removal/Departure Order.
-- -- In contrast, if the PR was in breach of the RO on the date of the PR card application, but by the time IRCC conducts the formal Residency Determination the PR has been in Canada long enough to meet the RO, the PR is entitled for credit for those days up to the date of the Residency Determination.
Processing the sponsorship application itself does not necessarily involve a Residency Determination. Nonetheless, since the sponsor must include a good deal of information about their history, including address and employment history, contacts with the person being sponsored, if the sponsoring PR is in RO breach it is fairly easy for IRCC to identify they are in breach. The information in the application might be enough, in some cases, for the agent/officer to conclude (on a balance of probability) the breach and prepare a 44(1) Report without further information from the PR, but generally the PR will be asked to submit RQ-like information or attend an interview, and based on that IRCC can proceed to prepare a 44(1) Report, which is what formally commences inadmissibility proceedings and "locks in the number of days," so to say, in that once the Report is prepared days after that do not count toward meeting the RO.
There is quite a lot of anecdotal reporting from sponsoring PRs who were successful despite being short of RO compliance when they made the application. That said, there is also quite a lot of anecdotal reporting otherwise, PRs subject to inadmissibility proceedings, especially from PRs who proceeded to make the application within a few months after their arrival here, still more than a year short of complying with the RO; and there are IAD decisions illustrating cases of this sort.
It's possible. I know many would like to see this - and I don't have any serious (principled) objections to them doing so.
But I think the issue that frequently (read: always) happens when a new government or even existing government attempts to do so across the board: they discover that doing this stuff is actually hard and it's resource intensive. And that they end up having to prioritise and decide: what are they really trying to achieve?
-Pushing immigration 'strictness' down to the CBSA outright contradicts dedicating time and resources to crime and national security / border security. And in terms of sheer numbers, very low overall numbers to be found in the PR-compliance columns. Remove people in overstay (i.e. deportations)? Extremely resource intensive.
-Want to reduce numbers of immigrants arriving/settling? The big numbers that are flexible are temporary residents (students and temp workers), to a lesser degree the PR programs. Even those temporary residents take some time to wind down (any new government will benefit here from steps that have already been taken for reducing student visas).
And on and on. Don't get me wrong, they'll do some 'strictness theatre', and they will likely reduce numbers / reprofile others. But I doubt the low-hanging fruit is in RO compliance, esp ones that require lots of papework like 44(1) reports.
Some changes would require legislative changes. My comment here is I don't know why, but our governments consistently seem to find legislation in this area far more difficult to do than would seem likely from the outside.
Absolutely agree....politicians have an innate skill when underestimating the complexity of issues. The level of complexity (independent tribunals, appeals processes, staffing, court availability, international agreements) all make immediate change unlikely. Not to mention the "flavour of the week" issues that supercede the best laid plans of every government.
That said, I still wouldn't want to put myself in the position of being the guinea pig for some new government initiative.
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A common example of what tribunal decision makers (IAD panels and Federal Court justices) explicitly state are the factors to be considered is this:
The principal factors . . . to consider include the extent of non-compliance with the residency obligation, the reasons for the departure from Canada and for the lengthy stay abroad, reasonable attempts to return, the initial and continuing establishment in Canada, the hardship and dislocation that could be caused to the appellant if this appeal is dismissed, the best interests of any minor child directly affected by the decision, and any other unique circumstances. (this is quoted from the IAD panel decision in Ayeb v Canada, 2019 CanLII 129178, http://canlii.ca/t/j52xw )
So, the PR's "initial and continuing establishment in Canada" is among the enumerated H&C factors.
Even though establishment in Canada is among the enumerated factors considered when assessing whether H&C relief for a RO breach should be allowed, and is directly addressed as such in some of the cases, my sense is that it plays a bigger role in a general equities sense, having more influence in the decision-maker's attitude toward the PR . . . just seems that officers, MDs, IAD panels, and even Federal Court justices, tend to be more sympathetic and less strict toward those PRs who clearly appear to be well on track to be PERMANENTLY settled in Canada.
Inviting some Caution: the nature and extent of establishment in Canada is not typically a big consideration in many cases, not what tips the scale in the assessment of H&C reasons for which a PR may be allowed to retain PR status despite breaching the Residency Obligation.
What tends to show establishment in Canada is obvious, common sense, with the period of time living in Canada being the most obvious factor, and otherwise employment (including length of employment), home ownership, family members living in Canada, banking and other activity in Canada, among other indices of living a life IN Canada, and to some extent indications the PR's intent is to permanently settle in Canada. But of course any of these will be balanced or offset by indications of a life tied to matters outside Canada, and again the period of time looms large along with the more salient indicators of residency, employment or immediate family outside Canada being the more obvious.
Note, for example, that in ENF 23, the operational manual which includes extensive guidance for assessing RO compliance and considering H&C factors, most of the enumerated factors relate to the extent of non-compliance, and the factors listed under "Establishment in and outside Canada" it first lists:
-- Is the permanent resident a citizen or permanent resident of a country other than Canada?
-- Has the permanent resident taken steps to establish any permanence in a country other than Canada; or the country they resided in immediately before becoming a permanent resident of Canada (that is, any third country status)?
then lists:
-- To what degree has the permanent resident established in Canada?
-- What linkages and ties has the permanent resident maintained in Canada?
While the operational manuals have not been updated in years, and in some respects they are not sufficiently current to rely on, the section on H&C (in regards to RO enforcement) is consistent with both IAD and Federal Court decisions as well as what we know otherwise, including based on anecdotal reports of personal experience.
Meanwhile, returning to the Ayeb decision quoted above, that panel went on to specifically address the PR's "degree of establishment in Canada" this way:
As for his degree of establishment in Canada, he was in Canada initially for only ten days. He was therefore not able to establish himself, which is clearly a negative point in this appeal. But since he returned to Canada, in the short time since his arrival, he has found a job, a place to live and a registered vehicle. He has opened a bank account and done other things with a view to becoming firmly established since returning to Canada. He also seems to be an employee who is much appreciated by his employer, as can be seen from the statement of employment he submitted. (again, this is Ayeb v Canada, 2019 CanLII 129178, http://canlii.ca/t/j52xw )
That IAD panel also considered the fact that the PR had made visa applications for his spouse and children so they could join him in Canada, which in the panel's view demonstrated "how serious the [the PR] is about coming back and settling here."
Leading back to the CAUTION . . . so far as I have surveyed RO breach cases (noting that I have been doing this regularly for nearly a decade and a half) the Ayeb decision is among the more lenient ones, and in this case the panel explicitly stated the case favouring H&C relief was "by quite a slim margin."
In contrast, in another IAD decision in which establishment in Canada played a positive role in an outcome allowing H&C relief, what was most influential by a big margin was simply the arithmetic: 668 days RO credit . . . just 62 days short . . . in conjunction with the PR's actions toward getting established in Canada during the year and a half before the 44(1) Report and Removal Order. Among the particular activities cited was the PR's participation in sports in Canada, "soccer," and "extracurricular activities." This is in the IAD decision Diallo v Canada, 2019 CanLII 92752, http://canlii.ca/t/j2q8g
The latter illustrates that the thing about the nature and extent of establishment in Canada is that it is tangled with and largely dependent on numerous circumstances very specific to the individual involved. It is about the extent to which the PR has been and continues to be in the process of making Canada their PERMANENT home.
A more recent Federal Court decision found that the IAD's assessment of establishment in Canada "lacks intelligibility" and thus was a significant factor in granting relief. This was in Mohammed v. Canada, 2022 FC 1, https://canlii.ca/t/jlk62 where Justice Ahmed favourably cited a different IAD decision in regards to its discussion of the establishment factor, that is the Bhimji v Canada, 2019 CanLII 54638, https://canlii.ca/t/j10hv case.
Some of these rulings are wild. I sometimes wonder why we have residency obligations if they can be so easily overruled with some pretty egregious failures to meet RO with minimal establishment in Canada. Love the justification that it was culturally not appropriate for a single woman to live in Canada unmarried but 10+ years later it is suddenly appropriate for her to live on her own and not with her sister which she had done during her initial stay. Also no way the parents were retiring in India and had not applied for a supervisa or PGP.
Because under this Government it’s been a hodge podge of enforcement
Some getting reported for being non compliant and others not .