[Comment in Cherrak decision]. . . underlines the question of the legal significance of the IRCC operational manuals.
Again, the Panel's (Edward Aronoff) observations in the Cherrak decision:
It may well be that the interpretation given by CIC in its manual ENF 23 is not binding on the IAD; however, in the interest of fairness and consistency, a permanent resident is entitled to expect that the condition “accompanying a Canadian citizen” will be interpreted and applied in the fashion set forth in the CIC manual.
It warrants emphasizing that the legal significance of IRCC operational manuals GENERALLY have been addressed by the Federal Court as well as other IAD panels, going back a long way, and the consensus limits their significance more so than to merely say the manuals are NOT binding. While it has been a long while since I did a lot of research into the weight given the manuals (this issue loomed more saliently when there was a citizenship manual, CP 5 "Residence," applicable to determinations of residency in citizenship applications, and a great deal of controversy in how to calculate residency for citizenship, all prior to Harper's Bill C-24), the consensus generally dismissed client arguments based on reliance on the manuals (but the FC usually considered the manual, when argued, relevant to its interpretation, but again NOT binding).
Aronoff (in the Cherrak decision) expresses what I think is a relatively uncommon principle (acknowledging, however, this deserves more current research), that PRs are, in effect, "entitled" to rely on policy stated in the manuals and a decision to the contrary may constitute procedural unfairness.
It warrants distinguishing Aronoff's approach in Cherrak versus that by Rose Andrachuk in the Turken decision (see
http://canlii.ca/t/gtw9d ) and similarly Andrachuk's decision in the Raheja case (see
http://canlii.ca/t/h47r3 ):
Although the Policy is not binding on the IAD, in the interest of fairness and consistency I prefer to rely on the statements as set out in the policy. It appears that it does not matter who accompanies whom as long as one of the parties is a Canadian citizen as is the case in this appeal. Motivation for them being together is also irrelevant.
The distinction is subtle but important. Andrachuk does not suggest PRs can rely on IRCC to apply the manual as such. This is more consistent with what I recall of older decisions addressing how much weight to give the manuals. There is a similar approach, albeit not so specifically articulated, in the Liong decision, 2013 CanLII 98789 (see
http://canlii.ca/t/gj8wt )
In contrast, however, my sense is that the more common approach to the manuals is similar to that articulated by Mark D. Chernin in the Hadi Dadash-Zadeh decision (see
http://canlii.ca/t/hsldq ), that the manual is essentially (and in a more practical sense
merely) "
a reference tool to guide immigration officers and other representatives of the Minister in the performance of their duties."
Statements of policy in applying the law and regulations are generally NOT themselves deemed to be legal interpretations, even though they sometimes shed light for a decision maker when interpreting how to apply what is otherwise unclear law. That is, more than merely NOT binding, they are not even a rule, not even binding on the agency which issues the manual, merely a guide and not so much a guideline.
My approach to the manuals (and similarly so the PDIs which have replaced many of the manuals) has long been to give them a lot of weight in terms of revealing the dominant approach employed by IRCC
BUT NOT RELY on them as definitive and in particular to be cognizant of the extent to which there is evidence that IRCC, the IAD, and the Federal Court are not following what the manuals state, which actually has been quite common (was especially common during the Harper years prior to the PDIs replacing the Citizenship Operational Manuals, especially CP 5 "Residence," which tended to be largely ignored by CIC, Citizenship Judges, and the Federal Court). That is, the manuals are helpful but other resources are important.
A note about Federal Court decisions:
Over time there have been numerous Federal Court decisions in PR RO breach cases, but way, way fewer in comparison to the published IAD decisions (I am not clear about which IAD decisions are published versus those not published). Without revisiting old research I have done, or doing the research again, it has been a long while since the Federal Court weighed in on the accompanying a citizen-spouse issue.
Federal Court decisions are also NOT binding in other cases. So even if one of these IAD decisions resulted in leave for judicial review and was addressed by a Federal Court, that would NOT conclusively resolve this issue.
While I am not particularly familiar with when or why an issue could be subject to further review by the Federal Court of Appeal (I know some issues for which such review is available, such as a decision in a Citizenship case in which the Federal Court has certified a question for further review, but I do not know generally when such review is available), it is my strong impression that this issue is NOT likely to be addressed let alone decided by a Federal Court of Appeal any time in the near future. But yes, a Federal Court of Appeal decision would be binding (subject to further appeal to the Supreme Court in very limited circumstances), binding on CBSA, IRCC, the IAD, and the Federal Court.
Resolution of conflicting views about what satisfies the "accompanying" element for credit toward PR RO compliance:
I do NOT see there is as much controversy as, say, suggested by Aronoff in the Cherrak decision. As I noted above, my view is that the actual cases themselves amply illustrate when and why the more strict interpretation is likely to apply and when it is NOT likely to apply, allowing for some difficult-to-call close cases. Thus, even though SOMETIMES the IAD will apply the strict who-accompanied-whom interpretation and OTHER TIMES it rejects that approach, I believe that in almost every such case, going either way, the approach employed can be explained.
In particular, I believe that the extent of the PR's establishment in Canada is a huge factor. Among the factual scenarios in which who-accompanied-whom is questioned, the PR who never was settled in Canada (or otherwise not settled in Canada for a very long time and prior to the marital relationship with the citizen-spouse) is perhaps the most common and obvious example in which who-accompanied-whom is parsed.
In particular, this factor loomed large in the Khaira decision, the Ezeibe decision, and the Dadash-zadeh decision.
As I noted, for example, under almost any approach to interpreting what "accompanying" means, it is difficult if not impossible to conclude someone who was not residing in Canada accompanied anyone abroad. While the latter is neither the language nor reasoning used by IAD panels, and is contrary to those specifically applying the ENF 23 approach, my sense is this identifies the PR who has the most risk of a strict approach based on parsing who-accompanied-whom.
Note About IRPA Regulation 61(4):
(see
http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-14.html#h-32)
I do not know why this regulation has not played a more significant role in cases where the who-accompanied-whom issue arises.
The regulation states:
(4) For the purposes of subparagraphs 28(2)(a)(ii) and (iv) of the Act and this section, a permanent resident is accompanying outside Canada a Canadian citizen or another permanent resident — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen or the other permanent resident.
In contrast, many of the decisions state that neither the law (IRPA) nor the IRPA Regulations define "accompanying," and either do not reference this regulation at all, or only give it minimal consideration.
Regulations are law. They must be interpreted and applied consistently with the applicable statutory provisions, meaning the statute governs over the regulation, but otherwise they are not merely an interpretation of law, they are positive statements of law. They are binding.
So I am not sure why the decisions do not overtly, explicitly acknowledge that so long as the couple is living together, that is "ordinarily residing" with one another, those days count as days accompanying the citizen-spouse.
I believe this is in fact the general rule and approach, by CBSA and by IRCC. That days in which the couple are ordinarily residing with one another will get credit. Which is why I am quite confident that so long as the PR has previously settled and been living in Canada, and is in a marital relationship with a Canadian citizen BEFORE going abroad, the PR should have no reason to worry about getting credit for days the couple is later living together abroad regardless of the circumstances leading them to go abroad and regardless who goes abroad first, and that in such situations it is highly unlikely there will be any parsing of who-accompanied-whom.
BUT I cannot explain why this regulation has not had more impact in some of the cases where there is a focus on who-accompanied-whom.
