Departure Order

[mhsaleh65]

I am a permanent resident since July, 2008. On August 5, 2018, while entering Canada via USA land border, I was given a Departure Order because the officer believes that “I am inadmissible for failing to comply with residency obligation of section 28 of the Act.

I was outside Canada for 11 months. my PR card expired on March 24, 2018. I applied for renewal on August 29, 2017. On that date I completed 560 days of physical presence in Canada and 268 days accompanied by my wife (she is Canadian citizen) outside Canada which makes the total number of days 828 (there was little mistakes in the dates given on the application. Therefore I received a questionnaire on Feb 6, 2018. I completed the questionnaire and attached all the required documents.

Since then my application is in process.

On my date of entry (August 5, 2018), the officer asked me to make the calculation for my physical presence in Canada from August 4, 2013 to August 4, 2018. I was under pressure since I was not prepared for that and I made the calculation as per the stamps on my passport where I made a rough calculation of 382 days of physical presence in Canada and when I added the days of accompanying my wife outside Canada, the officer rejected that on the ground that she was accompanying me and not the other way. I tried to argue with him that as per the ENF23-Loss of Permanent Resident Status page 25 -- 7.5 Accompanying a Canadian Citizen outside Canada, Paragraph 2 which says "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. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met" but he refused this argument. Therefore I was given a DEPARTURE ORDER. When I reached home I made my proper calculation and the exact number of days of my physical presence in Canada during the last five years (August 4, 2013 - August 4, 2018) is 469 days plus I spent with my wife 562 days outside Canada in the last five years, which makes the number of days in total 1031 days.

Moreover, we (my wife and I) have a mortgage apartment since 2011. I have five children, all are Canadians.

Is it a solid case to go for the appeal?

If I appeal and leave Canada within the 30 days of the departure order how I will come back for the hearing?

 

[zardoz]

I am a permanent resident since July, 2008. On August 5, 2018, while entering Canada via USA land border, I was given a Departure Order because the officer believes that “I am inadmissible for failing to comply with residency obligation of section 28 of the Act.

I was outside Canada for 11 months. my PR card expired on March 24, 2018. I applied for renewal on August 29, 2017. On that date I completed 560 days of physical presence in Canada and 268 days accompanied by my wife (she is Canadian citizen) outside Canada which makes the total number of days 828 (there was little mistakes in the dates given on the application. Therefore I received a questionnaire on Feb 6, 2018. I completed the questionnaire and attached all the required documents.

Since then my application is in process.

On my date of entry (August 5, 2018), the officer asked me to make the calculation for my physical presence in Canada from August 4, 2013 to August 4, 2018. I was under pressure since I was not prepared for that and I made the calculation as per the stamps on my passport where I made a rough calculation of 382 days of physical presence in Canada and when I added the days of accompanying my wife outside Canada, the officer rejected that on the ground that she was accompanying me and not the other way. I tried to argue with him that as per the ENF23-Loss of Permanent Resident Status page 25 -- 7.5 Accompanying a Canadian Citizen outside Canada, Paragraph 2 which says "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. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met" but he refused this argument. Therefore I was given a DEPARTURE ORDER. When I reached home I made my proper calculation and the exact number of days of my physical presence in Canada during the last five years (August 4, 2013 - August 4, 2018) is 469 days plus I spent with my wife 562 days outside Canada in the last five years, which makes the number of days in total 1031 days.

Moreover, we (my wife and I) have a mortgage apartment since 2011. I have five children, all are Canadians.

Is it a solid case to go for the appeal?

If I appeal and leave Canada within the 30 days of the departure order how I will come back for the hearing?

If you appeal, it automatically stays the departure order. You will need to appeal and make sure that you employ a competent immigration lawyer to handle your case.

This "who is accompanied by whom" issue is starting to crop up more often recently...

@dpenabill might have some thoughts...

 

[mhsaleh65]

If you appeal, it automatically stays the departure order. You will need to appeal and make sure that you employ a competent immigration lawyer to handle your case.

This "who is accompanied by whom" issue is starting to crop up more often recently...

@dpenabill might have some thoughts...

I am looking for a lawyer. Any suggestion?

 

[zardoz]

I am looking for a lawyer. Any suggestion?

How about starting with the ones that host this forum?

Also, take a look at this thread. https://www.canadavisa.com/canada-immigration-discussion-board/threads/about-the-definition-of-accompanying-a-citizen.475949/

 

[canuck78]

If you appeal, it automatically stays the departure order. You will need to appeal and make sure that you employ a competent immigration lawyer to handle your case.

This "who is accompanied by whom" issue is starting to crop up more often recently...

@dpenabill might have some thoughts...

@zardoz Curious to see when there is going to be a crackdown on minors who are saying they were removed without their consent after staying in Canada for a week or two. The intention of the law was for children who had spent significant time in Canada to be able to return to Canada for college or university. Think that many families feel like it is a cheap way to ensure their children get access to domestic fees and then can easily transition into the North American job market.

 

[bricksonly]

If you appeal, it automatically stays the departure order. You will need to appeal and make sure that you employ a competent immigration lawyer to handle your case.

This "who is accompanied by whom" issue is starting to crop up more often recently...

@dpenabill might have some thoughts...

So, what should a PR do to accompany his/her spouse? His/her spouse has to have a reason to live/study/work outside of Canada, and PR has to join for family reason, not the opposite???

 

[EstherBarros]

@zardoz Curious to see when there is going to be a crackdown on minors who are saying they were removed without their consent after staying in Canada for a week or two.

quick question: are you referring to temporary visa holder minors or PRs? Are there people who remain in Canada with their PR kids for a few weeks only and then leave just so they can claim H&C after?

Just got curious lol

 

[Buletruck]

Are there people who remain in Canada with their PR kids for a few weeks only and then leave just so they can claim H&C after?

I would say yes. Can’t quote specifics, but if you read through some of the posts about not meeting RO, the underlying theme on some of them is “we landed, came home, never went back, but now our kids want to go to school and not pay international fees” in a lot of them. Or to take advantage of healthcare....

 

[zardoz]

So, what should a PR do to accompany his/her spouse? His/her spouse has to have a reason to live/study/work outside of Canada, and PR has to join for family reason, not the opposite???

It would appear that at least some judges believe that this is what Parliament intended with that item of legislation.

 

[dpenabill]

I am a permanent resident since July, 2008. On August 5, 2018, while entering Canada via USA land border, I was given a Departure Order because the officer believes that “I am inadmissible for failing to comply with residency obligation of section 28 of the Act.

I was outside Canada for 11 months. my PR card expired on March 24, 2018. I applied for renewal on August 29, 2017. On that date I completed 560 days of physical presence in Canada and 268 days accompanied by my wife (she is Canadian citizen) outside Canada which makes the total number of days 828 (there was little mistakes in the dates given on the application. Therefore I received a questionnaire on Feb 6, 2018. I completed the questionnaire and attached all the required documents.

Since then my application is in process.

On my date of entry (August 5, 2018), the officer asked me to make the calculation for my physical presence in Canada from August 4, 2013 to August 4, 2018. I was under pressure since I was not prepared for that and I made the calculation as per the stamps on my passport where I made a rough calculation of 382 days of physical presence in Canada and when I added the days of accompanying my wife outside Canada, the officer rejected that on the ground that she was accompanying me and not the other way. I tried to argue with him that as per the ENF23-Loss of Permanent Resident Status page 25 -- 7.5 Accompanying a Canadian Citizen outside Canada, Paragraph 2 which says "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. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met" but he refused this argument. Therefore I was given a DEPARTURE ORDER. When I reached home I made my proper calculation and the exact number of days of my physical presence in Canada during the last five years (August 4, 2013 - August 4, 2018) is 469 days plus I spent with my wife 562 days outside Canada in the last five years, which makes the number of days in total 1031 days.

Moreover, we (my wife and I) have a mortgage apartment since 2011. I have five children, all are Canadians.

Is it a solid case to go for the appeal?

If I appeal and leave Canada within the 30 days of the departure order how I will come back for the hearing?

I will more fully address the "accompanying" a Canadian citizen spouse issue in a following post.

For now, I emphatically agree with the observations by @zardoz:

If you appeal, it automatically stays the departure order. You will need to appeal and make sure that you employ a competent immigration lawyer to handle your case.

This "who is accompanied by whom" issue is starting to crop up more often recently...

Definitely time to lawyer-up. At least to consult with a lawyer. (Sorry, I have no references.)

Beyond that:

Whether to appeal and spend the money on a lawyer for the appeal is a personal decision. You probably need a lawyer's assistance in making even this decision, so at the least a paid-consultation with a lawyer is strongly advised. (The best you can possibly get from a lawyer is worth what you pay for the lawyer, and all too often you get less, which should put a "free" consultation into perspective; just because it is difficult to get what you pay for from lawyers does NOT suggest, not at all, lawyers should be avoided. On the contrary, a situation like this is one in which a lawyer's help is very much needed . . . but, unfortunately, that tends to be expensive.)

If you are ready to stay in Canada, and do mostly stay in Canada pending the appeal, my sense is that you will have quite good odds of keeping your PR status. Perhaps excellent odds. Brief travel abroad while the appeal is pending should be OK. Less is better. None is best. But if you are now residing in Canada, and especially if going forward you are employed in Canada, in effect demonstrating you are fully settled in Canada, it is unlikely the IAD will deny the appeal and require your spouse to sponsor you again for PR.


If you are only in Canada temporarily and you will be returning abroad for an extended period of time:

This scenario poses a more difficult decision. There are many factors and circumstances which can affect how things go, ranging from how strong your case is that you have not actually breached the PR Residency Obligation (which appears to depend extensively on the amount of credit you can establish entitlement to based on time accompanying a Canadian citizen spouse abroad; to be addressed separately) to various H&C factors, and including the nature and extent of your past and likely future ties abroad compared to your ties in Canada.

I will offer some general observations but it warrants emphasizing that this is something you really need to discuss IN DEPTH with a lawyer you can trust. Not easy to find such a lawyer. I know. If keeping PR status . . . or at the least preserving a future opportunity to obtain PR status again . . . is important for you, it is time to do the homework, and I do mean WORK, to do the research to find a reputable immigration lawyer you can trust.

So, again, it is definitely time to lawyer-up.

But, nonetheless, here are some general observations:

If you are only in Canada temporarily and you will be returning abroad to reside abroad, and especially if you are employed abroad and returning to that employment, and you do not have plans to return to STAY in Canada in the near future, whether to appeal is a far more difficult decision. The prudent course may be to lose PR status and plan for your spouse to sponsor you to be a PR again WHEN you plan to actually move to and settle in Canada. Of course this approach is dependent on your spouse continuing to be eligible to sponsor you. It has certain risks, like your spouse's sudden death. Children can sponsor parents but that is not nearly as reliable as spousal sponsorship.

If there is a plan to come to stay in Canada but not right away, how soon in the future that move is anticipated is a significant factor.

How strong the case is that you should be given credit for time together with your Canadian citizen spouse is a big, big factor.

Other historical factors, including your path to becoming a PR, the overall pattern of both you and your spouse's time in Canada, and other historical facts, might be significant or even big factors, depending on the particular details.

There are also potentially some H&C factors which can have a significant influence.

 

[dpenabill]

CREDIT FOR TIME ABROAD ACCOMPANYING A CANADIAN CITIZEN SPOUSE:

I tried to argue with him that as per the ENF23-Loss of Permanent Resident Status page 25 -- 7.5 Accompanying a Canadian Citizen outside Canada, Paragraph 2 which says "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. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met" but he refused this argument.

This "who is accompanied by whom" issue is starting to crop up more often recently...

It would appear that at least some judges believe that this is what Parliament intended with that item of legislation.

For the vast majority of cases in which a PR is LIVING abroad with a Canadian citizen spouse, there is little or NO controversy or confusion or contest arising from the applicability of the credit for time abroad "accompanying" a Canadian citizen spouse. Generally in these cases IRCC (and probably CBSA as well, at least usually) will readily give credit for days the PR and the PR's Canadian citizen spouse were LIVING together abroad. In these cases, as ENF 23 states, it is NOT necessary to determine who is accompanying whom, and it is not necessary to determine why or for what purpose the couple is residing abroad.

That is, generally there is no parsing what "accompanying" means, at least not relative to whether it is possible that one spouse is accompanying the other, but the other spouse not accompanying the first. No who-is-accompanying-whom question.

There are much older Federal Court decisions in which the court did parse the meaning of "accompanying" so as to distinguish who was accompanying whom. There has been little indication those decisions have much if any influence these days. (With some possible exceptions in particular situations, which I will address below.)

At the risk of generalizing outside the lines, a bit, my understanding is that as long as one spouse can be said to be accompanying the other spouse, that almost always qualifies for the credit. Does not matter who is accompanying whom, but it does matter that one is in fact actually accompanying the other.

Thus, there can still be a question as to what constitutes accompanying another apart from any who-accompanied-whom question.

I have not seen any IAD or Federal Court decision addressing the accompanying spouse issue in precisely this way. I believe this is largely derivative of the wide variations in factual situations giving rise to questions about whether, IN FACT, one spouse is in fact accompanying the other.

Example:
Married couple living apart, Canadian citizen spouse lives in family home Canada; PR primarily lives in country where the PR is employed. PR visits family in Canada two or four times each year, adding up to around 75 days total each year. Canadian citizen spouse visits PR abroad two or more times a year adding up to a total of 75 or more days. Couple is TOGETHER 150 days total per year; 750 days total in five years.

Obviously the PR is not accompanying the citizen spouse abroad. But if the citizen spouse can be said to be accompanying the PR, that should suffice and count.

BUT is the the citizen spouse accompanying the PR? Does VISITING constitute ACCOMPANYING?

IRCC policy is to credit time the PR and citizen are LIVING together, which ordinarily involves proof of cohabiting. But if the citizen has and keeps a residence in Canada, just because the couple is together abroad does not constitute cohabiting. So, it might NOT count.

Thus, somewhat ironically, sustaining the strong Canadian tie by maintaining a residence in Canada tends to emphasize the citizen-spouse RESIDES in Canada and only VISITS the PR abroad . . . such that neither is, in effect, accompanying the other while they are abroad together.

This is clearly an artificial example. Actual cases tend to have wrinkles. The wrinkles (variations in the facts and circumstances) will likely have influence in how CBSA or IRCC assesses the time periods the spouses have spent together abroad. This example is intended to illuminate that the fact of being TOGETHER does not necessarily mean CBSA or IRCC will give credit for that time based on the PR ACCOMPANYING the citizen-spouse. At the least, the time might be questioned. Risk is it might NOT count.

Moreover, in an actual case much like this example, the likelihood of being reported at a PoE is probably low or very low. I cannot predict how a new PR card application might fare or an application for a PR Travel Document, but a PR with a valid PR card who returns regularly (at least twice a year) to Canada and stays for significant periods of time (more than a week or three at a time), is NOT likely to be challenged as to compliance with the PR Residency Obligation upon arrival at a PoE.

The OP's situation poses the more likely scenario in which a PoE officer will pursue the PR RO examination: lengthy recent absence (such as the 11 months here) and no valid PR card.

OBSERVATION: My strong impression is that if the PR is traveling with the Canadian-citizen-spouse, that is if they are accompanying each other on the trip and upon arriving at the Canadian PoE, that should have a positive impact on how it goes at the PoE. A lot, lot easier to assert entitlement for the credit, based on accompanying a citizen-spouse, when the PR is in fact accompanying or being accompanied by the citizen-spouse.

CAUTION: There are indications that these days CBSA is elevating scrutiny of PRs without valid PR cards who are returning to Canada using a land crossing from the U.S. and especially so when the PR has apparently transited the U.S. so as to avoid having to apply for a PR Travel Document.



Nonetheless, there are also some cases suggesting occasions when CBSA and/or IRCC may consider who accompanied whom:

Gets complicated. Most are actually rather obvious instances in which the PR has no real intention to establish a life IN CANADA or there are, otherwise, blatant indications of gaming the system. These are very fact specific scenarios. They typically involve egregious abuses of the system or the appearance of abuse. Examples are so particular as to not illuminate much beyond the particular example . . . well, except examples involving a PR who has never actually established a residence in Canada. Such a PR can not really be said to accompany anyone abroad since the PR was not settled in Canada in the first place. (Somewhat similar example involves PR who has not resided in Canada for a very, very long time, and not since being in a marital relationship with a Canadian citizen, who was thus already abroad before getting into the relationship with the citizen-spouse.)


THAT SAID:

Notwithstanding the occasional (usually at least exaggerated if not outright unfounded) protest to the contrary, generally CBSA and IRCC will be liberal if not overtly lenient toward PRs with family and significant ongoing ties in Canada. It is NOT as if CBSA or IRCC will go out of the way to find reason to take away such a PR's status. Actually the scales tend to tip a lot in favour of PRs with family and other ties in Canada.

Which underlies my previous observation that the OP here has good odds and perhaps even excellent odds the outcome of an appeal will be favourable SO LONG AS the OP is now (or soon is) settled and staying and living in Canada.

BUT of course both CBSA and IRCC have a mandate to enforce the law. They cannot arbitrarily disregard or otherwise fail to enforce the rules.

The problem for many PRs is the failure to recognize the extent to which the PR Residency Obligation is a liberal, and actually very generous limitation, so to breach it tends to show the PR is NOT settling permanently in Canada. The purpose of PR status is to allow the individual to live PERMANENTLY in Canada. If the PR is not actually permanently settling in Canada, there is no reason (under the Canadian immigration system) for that person to have PR status. As long as the PR remains in compliance with the PR RO, as a matter of demonstrable fact, the PR should not lose PR status, but the scales tip precipitously when a PR has not been settled in Canada and fails to meet the rather generous minimum presence obligation.

 

[zardoz]

https://www.canadavisa.com/canada-immigration-discussion-board/threads/pr-renewel-problem.578120/#post-7170960 has some more recent references.

 

[Tubsmagee]

I am looking for a lawyer. Any suggestion?

Mind saying where you crossed over at, and passport you travelled on? From reading decisions, it seems that many have geographic similarities, so it would be interesting if pattern continues.