Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE

[dpenabill]

CAUTION: Who-accompanied-whom can make a difference when a PR claims credit toward the PR Residency Obligation based on time abroad accompanying the PR's Canadian citizen spouse.

There are now reasons to emphasize this caution more than it has been in the past.

CAVEAT: While NOT certain, my strong sense is that the general approach to NOT consider who-accompanied-whom STILL applies in MOST cases, with "NOTABLE EXCEPTIONS."

The scope of "NOTABLE EXCEPTIONS," and the range of factors which might significantly increase the risks, warrant some serious attention. Thanks is due @Tubsmagee and @zardoz for doing the research which has alerted the forum of this evolving issue.

In the meantime, it gets complicated. Explication demands wading deep into the weeds. Thus, I expect this to go LONG and require multiple posts.


Background observations:

We have long known that in some, largely unusual cases, the question who-accompanied-whom has been considered and has led to a negative outcome. BUT, at least until recently, those were isolated cases involving particularly problematic circumstances and, as sometimes noted by various IAD panels, an EXCEPTION. In contrast, the general rule, the general approach, has focused on crediting time the PR and Canadian-citizen-spouse actually LIVE together abroad. Thus, so long as the couple are living together, NO PROBLEM with getting credit. Usually! Not always.

This is essentially the oft referenced approach outlined in ENF 23 "Loss of Permanent Resident Status."

The guidelines for PR Card applications, which includes an appendix specifically about the PR Residency Obligation, were updated this summer (June 2018). It does NOT appear to include any changes which affect the Residency Obligation appendix information relative to credit for time accompanying a citizen-spouse. BUT it warrants noting that this information affirmatively employs the predicate version of "accompany" such that, in form, it specifically references the PR accompanying the citizen-spouse. So far as I can ascertain, this particular information is consistent going back to at least 2008.

Except for some much older Federal Court decisions, and until relatively recently only an occasional IAD decision, generally there has been little or no sign that who-accompanied-whom was considered let alone mattered, at least not much, EXCEPT (and this largely includes the older cases) in situations I have described where it appears . . . the PR and citizen are, in effect, really pushing-the-envelope (relative to establishing and maintaining connection to a life in Canada).

What constitutes pushing-the-envelope now warrants closer inspection.

Recently, and going back quite a ways, I have variously described the risk, the risk that who-accompanied-whom could matter, in minimalist terms . . . thus, in general terms I have repeatedly offered observations similar to the following, regarding WHEN CBSA and/or IRCC might consider who-accompanied-whom . . .

Most [such cases] 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.
[Also referencing situations involving PR who were already abroad before getting into the relationship with the citizen-spouse.]

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.

There are many other factors which could influence the nature and extent of the risk. For example, the more time and more settled in Canada [the PR has been], prior to either [the PR or the citizen-spouse] relocating abroad, the lower the risk. Conversely, the less time and less well-settled in Canada [the PR] has ever been, the greater the risk. While the nature and scope of the citizen's settlement in Canada will likely be a significant factor, it is the PR's history which looms largest, and particularly so if the PR has never actually been permanently settled and living in Canada.

To be clear, it remains my strong impression that those observations are essentially STILL valid and still describe what is likely to impose or trigger a risk that who-accompanied-whom could negate credit for time living together abroad. And that otherwise, time LIVING-TOGETHER should count, without regard to who followed whom or who is the one who has the primary purpose for being abroad.

BUT now subject to a stronger caution, as noted, relative to certain "NOTABLE EXCEPTIONS."

What the more recent IAD decisions illuminate, in contrast, is that it seems quite likely such circumstances (as I outline in the quotes above) are indeed very much at risk, that it is NOT safe to categorize the who-accompanied-whom question as an outlier or altogether unlikely but possible. It clearly appears to be more than merely possible. And, actually perhaps quite likely in certain situations.

The more recent IAD decisions also illuminate that a significant number of visa officers deciding PR Travel Document applications are considering who-accompanied-whom . . . at least in circumstances such as those I outline in quotes above.

Additionally, the recent IAD decisions also illuminate that even under the current Liberal government, the Minister is, apparently, advocating consideration of who-accompanied-whom and limiting the credit to those PRs who accompanied the citizen abroad, rather than when the citizen joined the PR abroad . . . at least, again, in circumstances such as those I outline in quotes above.

THERE ARE MORE QUESTIONS THAN ANSWERS. As is often the case when dealing with IRCC.

THERE IS, HOWEVER, ONE KEY QUESTION:

Is consideration of who-accompanied-whom actually an EXCEPTION, still, or is this a common or perhaps even standard element now?

Or, asking the question another way . . . now or in the near future, is it likely that the who-accompanied-whom question may arise and have an impact in cases less blatant, less like those I outline above? For example, if it is obvious that the citizen is abroad to be with the PR, such as a PR with a career abroad, is there a risk IRCC will consider who-accompanied-whom and deny credit for the time the couple is living together abroad even though the PR was previously settled and established in Canada.

Again, I believe consideration of who-accompanied-whom is still an exception and the answer to the last question, in particular, remains NO. But I am no expert. I am not the one at risk.

And even if I am correct, generally, what circumstances will increase the risk otherwise? Living abroad long-term, such as more than five years? Minimal or no travel to Canada for extended periods of time or otherwise NOT retaining ongoing ties to Canada?

While I will (probably) get more into it, below, among the reasons why I do not think there has been a significant policy change, why I think questioning who-accompanied-whom is still the EXCEPTION, is that the instructions, guidelines, and checklists for PR card applications and PR Travel Document applications do NOT request any information directly related to who-accompanied-whom or the reason for being abroad . . . except as might otherwise be apparent in the PR's and citizen-spouse's travel and residence history.

But the latter, what is apparent in the respective travel and residence history, probably deserves more consideration now whenever there is a significant period of time the PR has been living abroad before the citizen-spouse and PR are living together abroad. This is something other forum participants have expressed some caution about before. For example, where a PR was expecting to soon become a citizen, and there was a plan to then go work and live abroad in a country where the PR's spouse, also a PR, was already living, and the question was whether the PR spouse abroad would be entitled to the credit for accompanying a citizen spouse after one of them received citizenship and they were living together, @canuck78 astutely cautioned:

I would encourage your wife to return to Canada and stay a while before you take a job in ME. I think you may run into concerns if your wife has lived in the ME for years and then you join her and start counting her accompanying days towards RO. Best to eliminate any stumbling blocks.

That was a good suggestion at the time and, in consideration of the recent research shared by @Tubsmagee and @zardoz, now appears to be important advice.

There is more to follow. Before going deep into the weeds, however, it warrants citing and linking the recent research shared by @Tubsmagee and @zardoz. And perhaps a few additional decisions.

 

[dpenabill]

Posts containing citation and link for some significant recent cases regarding credit for time abroad accompanying a Canadian-citizen-spouse and the who-accompanied-whom question:

Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), <http://canlii.ca/t/hst3d>, retrieved on 2018-08-02(Denied - not accompanying) May 2018

Javadian-Sarraf v Canada (Citizenship and Immigration), 2018 CanLII 68435 (CA IRB), <http://canlii.ca/t/ht5t6>, retrieved on 2018-08-02 (Denied, though acknowledged that time spent accompanying Canadian citizen spouse counted) April 2018

Dadash-zadeh v Canada (Citizenship and Immigration), 2018 CanLII 46499 (CA IRB), <http://canlii.ca/t/hsldq>, retrieved on 2018-08-02 (Denied - Not accompanying because Canadian citizen went overseas to join PR) March 2018

Ezeibe v Canada (Citizenship and Immigration), 2017 CanLII 29598 (CA IRB), <http://canlii.ca/t/h3ssj>, retrieved on 2018-08-02
(denial - not sufficient to be considered accompanying) April 2017

Khaira v Canada (Citizenship and Immigration), 2014 CanLII 95529 (CA IRB), <http://canlii.ca/t/gksqq>, retrieved on 2018-08-02 (Denied - Canadian citizen joined PR overseas years after he had left Canada) April 2014

HOWEVER, in Cherrak v Canada (Citizenship and Immigration), 2018 CanLII 61861 (CA IRB), <http://canlii.ca/t/hsw3f>, retrieved on 2018-08-18

[11] For many years, there has been an unresolved controversy regarding the interpretation to be attributed to the phrase “accompanying a Canadian citizen” as found in subparagraph 28(2)(a)(ii) of the Act.

Some additionally relevant decisions:

Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r
This 2011 decision is quoted by many of the other, subsequent IAD Panels (a total of 15, including among those cited above: Ibrahim, Dadash-zadeh, and Khaira, which apply the who-accompanied-whom question, among other Panel decisions which deny credit for time together, based on a more or less strict interpretation of the statutory language itself. It does not offer much reasoning other than relying on the ordinary meaning of "accompany" and considering the purpose of the Act.

Diouf is also cited in Khan v Canada, 2015 CanLII 99397 see http://canlii.ca/t/grz8t which is another case in which the IAD denied credit for time the PR was living together with a Canadian-citizen-spouse abroad.

Diouf is also cited and in effect rejected in Mustafa v Canada, 2018 CanLII 47219 see http://canlii.ca/t/hs76z and in this decision ENF 23 is cited as supporting the approach in which who-accompanied-whom is NOT relevant. This decision maker also considered the legislative history which suggested that the reason for the absence does not matter. ("Any reason for the absence would qualify" for the credit.)

Diouf is also cited in the Kreidy v Canada, 2017 CanLII 87454 see http://canlii.ca/t/hphj6 which denied credit for time the PR was with the PR's Canadian-citizen-spouse abroad, based on a conclusion the citizen was accompanying the PR, not the PR accompanying the citizen

Diouf is also cited but in effect rejected in Liong, 2013 CanLII 98789 see http://canlii.ca/t/gj8wt which applied the ENF 23 approach and allowed the credit notwithstanding the fact that the evidence tended to show the PR was not the one accompanying the citizen but the other way around

Another decision in which the ENF 23 approach was relied upon and followed was Raheja v Canada, 2017 CanLII 36612 see http://canlii.ca/t/h47r3 (this case does not mention Diouf)

NOTE: I will get to it later, I hope, and for now juggling too many different decisions in my head, but one of the IAD panels applying the strict approach, deciding the case based on who-accompanied-whom, suggested this was the prevailing approach by members of the IAD . . . but it warrants noting that many of these decisions are by the SAME individuals . . . and so far I have not come across any cases in which this approach was applied which does not involve PRs with very little ongoing connection to Canada and minimal initial establishment in Canada.

Enough for now . . .

Among questions to address in research going forward:
-- are there any cases in which who-accompanied-whom mattered where the PR had an established history in Canada? or otherwise had not been absent from Canada for an extended period of time prior to time living with the citizen-spouse?
-- trying to add up how many individual panel members went the respective way

 

[bricksonly]

A Canadian citizen has rights to sponsor spouse without any other condition except submitting application inside Canada.
I have no idea why to limit Canadians living aboard with their spouse. They do contribute nothing to Canadian economy, but they do get nothing from Canadian benefit too.
The only protection it can offer is, PR has to considering divorce seriously....

 

[canuck78]

A Canadian citizen has rights to sponsor spouse without any other condition except submitting application inside Canada.
I have no idea why to limit Canadians living aboard with their spouse. They do contribute nothing to Canadian economy, but they do get nothing from Canadian benefit too.
The only protection it can offer is, PR has to considering divorce seriously....

They contribute nothing but can return in retirement and use all services, send their kids for post-secondary education which has subsidized by the tax payer, etc.

 

[bricksonly]

They contribute nothing but can return in retirement and use all services, send their kids for post-secondary education which has subsidized by the tax payer, etc.

What's the difference if Canadian spouse sponsor a new PR? So this doesn't make any sense...

 

[canuck78]

What's the difference if Canadian spouse sponsor a new PR? So this doesn't make any sense...

Just makes life harder. They are trying to be firmer on families who have no intention of settling in Canada mostly because the spouse's business is in his/her home country. Makes it harder for him/her to visit Canada throughout the years, get around the world using a Canadian passport or ask for evacuation, etc,

 

[dpenabill]

While it is a tangent, more tangled in the WHY of policy than WHAT is the policy or HOW is the policy applied (the latter two being the focus of the discussion into how Canada approaches allowing credit for time a PR lives with a Canadian-citizen-spouse abroad, and to what extent who-accompanied-whom affects this), the above discussion between @bricksonly and @canuck78 revolves around an important element in this issue: the nature and purpose of the grant of PR status and laws governing it, including PR obligations.

I alluded to the importance of this above in reference to the oft cited 2011 decision in Diouf, http://canlii.ca/t/fn81r . . . that the IAD conclusion, in that case, was not based on who-accompanied-whom alone, but in conjunction with considering the purposes of the Act.

For a long time I have cautioned and emphasized that the purpose of the Act to facilitate settling and living PERMANENTLY in Canada often plays a big role in decision-making related to PR card renewal, PR Travel Document applications, PoE examinations into PR RO compliance, and IAD appeals. The focus of this has been risks related to the RO and "cutting-it-close," which is not just about having ten or a hundred days presence above the minimum, but is almost as much about appearing, or not, to be settled and living in Canada permanently . . . thus, to my view, absent a pattern indicating established long-term settlement in Canada, "cutting-it-close" includes appearing to be outside Canada more than in Canada, and thus 900 days (170 over the minimum) can be "cutting-it-close."

The key take-away, however, is that many PRs focus on very specific and technical elements, distinguishing 729 days presence versus 731 days for example, failing to take into account the broader picture in which the appearance (or lack thereof) of being established and settled in Canada long-term can loom huge. Relying on technically but only barely meeting specific requirements seriously risks a broader negative credibility assessment, including a potential failure by IRCC to believe the PR's accounting as to critical facts. It does the PR little or no good to assert 879 days presence, let alone just 731, if the decision-maker apprehends the PR is POSSIBLY fudging the facts because the decision-maker has concluded the PR is not acting consistently with the Act's purpose.

I plan, in the future, to better document my view, as supported by statements in the relevant IAD decisions, that facts and circumstances appearing to be inconsistent with the Act's purpose are likely to be as important as the who-accompanied-whom question itself. But for now, the conversation between @bricksonly and @canuck78 helps to establish a baseline of sorts, helping to illuminate and frame HOW and WHY the Act's purpose looms so large in regards to how, and perhaps more importantly WHEN who-accompanied-whom becomes a focal point.

A Canadian citizen has rights to sponsor spouse without any other condition except submitting application inside Canada.
I have no idea why to limit Canadians living aboard with their spouse. They do contribute nothing to Canadian economy, but they do get nothing from Canadian benefit too.
The only protection it can offer is, PR has to considering divorce seriously....

A Canadian citizen has rights to sponsor spouse . . .

Technically this is not correct and even if it was correct it would be irrelevant, recognizing that all PRs must comply with the PR Residency Obligation, which is totally separate and apart from who is eligible for PR status, sponsored or otherwise. That said, I think I understand this proposition in its non-technical sense, in large part (I am inferring) referencing the strong policy preference for family unification that plays a big part in Canadian immigration law and policy and practices, so it warrants some clarifications.

Re "rights:" Observations distinguishing what is a "right" versus a "privilege" tend to devolve into an unfruitful distraction. To avoid this, I make an effort to refer to "statutory entitlements" when the discussion is about what the law distinguishes as a privilege, not a right, but which non-lawyers typically know and refer to as a "right," which is typically more or less a statutorily prescribed right (which, again, jurists know and refer to as a "privilege").

But in this context, to be clear, the statutory entitlement to sponsor a spouse is WAY less than a "right," but rather is subject to numerous limitations.

In particular, PRs as well as citizens are statutorily entitled to sponsor a spouse for PR BUT there are several requirements which must be met, including the sponsored applicant's eligibility and admissibility, and the sponsor too must meet eligibility requirements. If, for example, the sponsor has certain unpaid obligations, a conviction for domestic violence related offenses, is supported by welfare, or was in a marital/common-law relationship with the spouse prior to the sponsor's own immigration and was not examined, there is no entitlement to sponsor (the last of these will FOREVER bar sponsorship).

Beyond that, who is eligible for a grant of PR status and what class of immigration (Express Entry; FSW; accompanying family members; sponsored family; refugee; H&C) the PR obtained PR status through, is largely if not entirely irrelevant once the individual becomes a PR. All PRs are required to comply with the PR Residency Obligation, regardless of the immigration class for which they qualified for a PR visa. Thus, sponsored spouse PRs must comply with the PR RO just like any other PR.

(Where the application is submitted is largely irrelevant; most sponsored PR applications are processed overseas in the respective visa office, but initial determination of sponsor eligibility is done in Canada, and INLAND applications, where sponsor and spouse live together in Canada, are in Canada. But this has NO effect on PR RO once the person is a PR.)

There is an important distinction between PR sponsors and citizen sponsors. The PR sponsor must be residing in Canada when the application is made, and continue to reside in Canada until the sponsored applicant is granted a PR visa (the PR may travel abroad, but technically must continue residing in Canada). A Canadian citizen sponsor may be living abroad when the application is made, but must intend to relocate to Canada and submit a concrete plan to do so. These requirements are part of and illustrate that the purpose of the grant of PR status to a sponsored spouse is so the couple can LIVE IN CANADA.

FAMILY UNIFICATION: The above clarifications aside, yes, FAMILY UNIFICATION (more often referred to as "family reunification" because it is used in reference to applications for the immigration of a family member to facilitate joining family already in Canada) is an important policy in the Canadian immigration scheme. It is NOT a RIGHT, not by a long shot. But it does play a huge role in how various immigration laws and rules are applied.

I do not disagree with the observations by @canuck78 above, and indeed I agree the interests reflected in those observations probably play a significant part in how the government approaches these issues. BUT as to this particular issue, the key distinction is more direct.

This goes back to the purpose for granting the spouse PR status in the first place, that is status to live in Canada: so the spouse can join the sponsor IN CANADA and live in Canada.

In particular, a spouse does NOT need Canadian status to live outside Canada, and Canada otherwise does not govern where someone, including family members of Canadians (and for that matter, including Canadians as well), can live outside Canada. Thus, for example, when a Canadian (remembering that both PRs and citizens are "Canadians," as defined by IRPA) has a non-Canadian spouse, family reunification does NOT necessitate the grant of PR status if the couple can and is, or will be, residing together abroad.

Thus, for example, if a Canadian PR is living abroad with his or her Canadian citizen spouse, it is NOT NECESSARY the PR continue to keep PR status for the couple to be together, to be UNIFIED.

Which leads to the recognition that RO credit for days accompanying a citizen-spouse abroad ARE THE EXCEPTION. NOT the RULE. An EXCEPTION.

It makes perfect sense that the Minister, IRCC officers, CBSA officers, and the IAD, will be reluctant or opposed to giving credit for an EXCEPTION if and when it appears the PR has NOT acted consistently with the Act's purpose, that in such circumstances there is a substantially increased risk of a who-accompanied-whom analysis and, when readily apparent the citizen was accompanying the PR, potentially applying it strictly.

More can be said about why Canada offers the exception (which should somewhat illuminate how it is likely to be applied in practice). And a lot, lot more can be said about what particular circumstances are more or less likely to be viewed as inconsistent with the purposes of the Act. The latter is something I will attempt to further research and address.

Another question for further research: how many of those who lost the IAD decision were assisted by a lawyer?

 

[steaky]

I do, however, disagree with the observations of @canuck78 and @bricksonly in regards to overseas Canadian citizens contribute nothing to the Canadian economy. Despite they don't pay income taxes on Canadian residency basis, they can always buy Canadian produce and services in their other country. While visiting Canada, like other tourists in general, they spent money on local Canadian businesses that in turn contribute to the Canadian economy.

 

[canuck78]

I do, however, disagree with the observations of @canuck78 and @bricksonly in regards to overseas Canadian citizens contribute nothing to the Canadian economy. Despite they don't pay income taxes on Canadian residency basis, they can always buy Canadian produce and services in their other country. While visiting Canada, like other tourists in general, they spent money on local Canadian businesses that in turn contribute to the Canadian economy.

Canadians accompanying their spouses rarely seek out Canadian exports and we barely export produce. Maybe you mean products. Most Canadians who live abroad spend less than other tourists. They likely only come and visit family. If you want to sponsor your spouse and then plan on either gaining citizenship or on leaving right after getting PR, many have no intent to settle in Canada. It is an insurance policy, an education plan for their children's post secondary education, etc. As the world has become more global and the Canadian population becomes more diverse, more and more Canadians chose to live abroad or get married to someone from their home country but no longer settle in Canada in the short term or maybe never. All this to say with things like birth tourism or plans to get PR so your 4 year old can pay domestic university fees due to H&C, the immigration system needs some tweaks to deal with a new world. When there was a war in Lebanon 10ish years ago. Canada had to bring in a ship to take out citizens or PRs who had perhaps never lived in Canada.

 

[dpenabill]

Trying to avoid wandering too far further into the WHY-this-is-the-POLICY tangent, there is no doubt that Canada's immigration policy invests a great deal of weight in the importance of Canadian-ties, Canadian-connections, with an emphasis (albeit not exclusively) on what is Canada and Canadian within the geographical boundaries of Canada. My perception is that even though monetary-economic elements are a factor in this (inevitably if not intentionally), other more direct connections to Canada are far more important. With some entrepreneur class and related exceptions, its NOT about the money, and generally (with some isolated exceptions) status in Canada has NOT been for sale . . . so even if Canadians abroad were shipping boatloads of cash back to Canada, it seems that would have little influence on policy.

Express Entry and FSW immigration policies, for example, are far less about the taxes these individuals will pay in Canada, and far, far more about their participation, contribution, and integration into the whole scheme of what it means to be Canadian, which includes their contributions as part of the workforce, but as an integral part of the CANADIAN workforce, and the Canadian community, not merely as a source of cash.

In this regard, the other exception, the employed-abroad-by-a-Canadian-business exception, for which credit toward the PR Residency Obligation is allowed, is illuminating: PRs employed abroad by a Canadian business ONLY get the credit if their employment abroad is a TEMPORARY ASSIGNMENT, and this ordinarily requires an overt plan for the individual to return to his or her job IN CANADA. Long-term employment abroad will (usually) NOT qualify for the credit. Obviously, a PR employed by a Canadian business economically benefits the Canadian business, and may even be paying Canadian taxes, BUT this EXCEPTION to the PR RO is clearly limited in a way that illustrates that monetary benefit to Canada is NOT the reason for the policy. The policy is to allow both PRs and Canadian employers some flexibility, BUT to nonetheless require an ongoing connection to LIVING a LIFE in CANADA.

It is my impression that many immigrants are surprised that MONEY does not carry more weight in Canadian immigration policy. There is a constant stream of posts in the Citizenship topics reflecting such surprise, sometimes confusion, and more than occasionally outright consternation, when they learn that eligibility and the process for a grant of citizenship is NOT influenced at all by whether the immigrant pays taxes or is otherwise contributing to the Canadian economy (leading some to consternation that the extent of their economic contributions are not rewarded and have no influence in the process) . . . indeed, the immigrant on welfare is entitled to the same treatment as the entrepreneur who employs scores of employees. Sure, in general MONEY still makes a difference, a huge difference at just about every level of society, having a huge influence on access to all sorts of benefits and advantages. BUT its role in Canadian immigration policy is, to a significant extent, minimized (recognizing, however, that affluence is a big factor in which Foreign Nationals even have much of an opportunity to qualify for immigration to Canada and practically able to do so).

It is readily apparent that the general purpose for granting PR status, to facilitate individuals to SETTLE and LIVE IN CANADA PERMANENTLY, looms as the linchpin in how the particular rules and regulations and policies are interpreted and applied.

This observation: that the general purpose for granting PR status is to facilitate individuals to SETTLE and LIVE IN CANADA PERMANENTLY, and that this looms as the linchpin in how the particular rules and regulations and policies are interpreted and applied, is broader and bigger and more important than its role in who-accompanied-whom RO questions alone. Indeed, the who-accompanied-whom issue is merely a lesser tangent; what the recent decisions more importantly indicate and emphasize, is the important role this purpose has in how the RO rules are interpreted and applied generally. (As noted before, I have long been cautioning this in reference to PR RO cutting-it-close situations, but these recent decisions illuminate how pervasive and critical this factor can be and often is.)

WHICH LEADS ME TO MAKE A CONFESSION.

And underscores the importance of emphasizing that I am NOT an expert.

It appears I have underestimated and understated the extent to which the who-accompanied-whom question has evolved and become a more salient issue for PRs living abroad long-term with a Canadian-citizen-spouse.

Substantively I continue to think that my previous observations and general outline, revisited in quotes in the first post in this topic, are still essentially valid and still generally describe the kinds of situations which impose a risk that who-accompanied-whom might be considered rather than the USUAL approach, to NOT consider who-followed-whom or who is the one who has the primary purpose for being abroad.

I followed those remarks with the cautionary observation that this is now subject to a stronger caution relative to certain "NOTABLE EXCEPTIONS." This, it appears upon digging further into the recent decisions and their antecedents, is what I have probably sorely understated. While the difference is largely a matter of emphasis, there is a real, practical impact: PRs living abroad indefinitely or long-term probably should be exercising MORE CAUTION and considering this issue more carefully in their priority decision making, especially if keeping PR status is a high priority.

In the meantime, further research still tends to indicate that the PR at RISK is mostly the PR who has never really established long-term residence in Canada. BUT there are a couple decisions which hint that notwithstanding previously residing in Canada for a relatively extended period of time, and even with on-going ties and presence in Canada, where it appears the PR is NOT on a path to live in Canada permanently there is a risk that time abroad with a citizen-spouse will NOT get credit.

The latter observation derives from the decision in Caesar v Canada, 2014 CanLII 99165 http://canlii.ca/t/gnf7w where the PR had spent 635 days (and claimed more) actually present in Canada, and was denied credit for time spent with his citizen spouse, who was herself more or less permanently residing abroad in her (and his) home country.

The Caesar decision is so far outside the parameters of all the others I have read that I apprehend the possibility there were some unspoken factors influencing the decision (I am personally acquainted with some possibly credible claims of discrimination against individuals from Trinidad) . . . but it may simply be that BOTH the PR and the citizen-spouse had lives predominantly settled in their home country abroad and this tipped the scales. In its H&C assessment, it is emphasized that this PR never really established himself in Canada, which fits my outline of risk factors, but this individual nonetheless was living and working in Canada at various times, appeared to have real employment in Canada long enough to make lower-middle-class wages for a couple years during the preceding five, and thus the facts are distinguishable from most of the cases involving a negative outcome due to a who-accompanied-whom analysis, in which the PR (in most cases) had spent very little time in Canada (many barely any time at all).

This in turn leads to discussions about the "temporal nexus," if any, in the respective spouses' travel or move abroad.

. . . to be continued . . .

 

[bricksonly]

Canada's immigration system intentionally choose young, healthy, educated, with some expierence, English or French speaking people. It's not friendly or simply NO to people NOT QUALIFIED. And system try to keep these people STAYING in Canada.

Unfortunately, these people have dreams and maybe Canada is not the best of their destination. Canada never limit their leaving. But again, Canada never welcome people without properties mentioned above COME to Canada.

Should we go back to a system to pick people without any condition but stay in Canada??

 

[bricksonly]

[QUOTE=" In the meantime, further research still tends to indicate that the PR at RISK is mostly the PR who has never really established long-term residence in Canada. BUT there are a couple decisions which hint that notwithstanding previously residing in Canada for a relatively extended period of time, and even with on-going ties and presence in Canada, where it appears the PR is NOT on a path to live in Canada permanently there is a risk that time abroad with a citizen-spouse will NOT get credit.

The latter observation derives from the decision in Caesar v Canada, 2014 CanLII 99165 http://canlii.ca/t/gnf7w where the PR had spent 635 days (and claimed more) actually present in Canada, and was denied credit for time spent with his citizen spouse, who was herself more or less permanently residing abroad in her (and his) home country.

The Caesar decision is so far outside the parameters of all the others I have read that I apprehend the possibility there were some unspoken factors influencing the decision (I am personally acquainted with some possibly credible claims of discrimination against individuals from Trinidad) . . . but it may simply be that BOTH the PR and the citizen-spouse had lives predominantly settled in their home country abroad and this tipped the scales. In its H&C assessment, it is emphasized that this PR never really established himself in Canada, which fits my outline of risk factors, but this individual nonetheless was living and working in Canada at various times, appeared to have real employment in Canada long enough to make lower-middle-class wages for a couple years during the preceding five, and thus the facts are distinguishable from most of the cases involving a negative outcome due to a who-accompanied-whom analysis, in which the PR (in most cases) had spent very little time in Canada (many barely any time at all).
[/QUOTE]

Simply make a rule like this: if you cannot become a citizen in 10 years, your PR will be revoked. PR is a 10 years status. No any government resource will be wasted on reviewing qualification of this stupid policy. No exception, no appeal, no report.

 

[canuck78]

Canada's immigration system intentionally choose young, healthy, educated, with some expierence, English or French speaking people. It's not friendly or simply NO to people NOT QUALIFIED. And system try to keep these people STAYING in Canada.

Unfortunately, these people have dreams and maybe Canada is not the best of their destination. Canada never limit their leaving. But again, Canada never welcome people without properties mentioned above COME to Canada.

Should we go back to a system to pick people without any condition but stay in Canada??

Tons of spouses that are young but not educated come to Canada, many pay a lot to take very low level college courses to get PGWP and strategically select jobs that will get them PR, and there are other was to immigrate. The fastest way to immigrate is through marriage or being highly skilled. When choosing immigrants Canada can choose who they want. They used to prioritize large family groups but one child would get educated and bring the rest of the family. Immigrants are also using the system. It is usually mutually beneficial or nobody would come. I think it becomes problematic when people get Canadian citizenship as a retirement plan or an education plan for their children. The math doesn't work if people skip the contribution to the country and tax base part. 3 years of work doesn't make up for 30 years of living in Canada as a retiree. I do think the rules are too lax and that many take advantage of them. As the world becomes more global there will likely have to be changes to many immigration systems. What worked 20 years ago probably no longer works. For example being granted H&C because you were removed as a minor was intended for children who had spent a substantial part of their schooling and childhood in Canada. Now it is being used by children who spent 2 weeks as a 4 year old in Canada. Their lives would not be negatively effected if they couldn't continue their schooling in Canada or return to their peer group. As people have discovered this loophole it is being exploited so will likely have to be changed.

 

[bricksonly]

Tons of spouses that are young but not educated come to Canada, many pay a lot to take very low level college courses to get PGWP and strategically select jobs that will get them PR, and there are other was to immigrate. The fastest way to immigrate is through marriage or being highly skilled. When choosing immigrants Canada can choose who they want. They used to prioritize large family groups but one child would get educated and bring the rest of the family. Immigrants are also using the system. It is usually mutually beneficial or nobody would come. I think it becomes problematic when people get Canadian citizenship as a retirement plan or an education plan for their children. The math doesn't work if people skip the contribution to the country and tax base part. 3 years of work doesn't make up for 30 years of living in Canada as a retiree. I do think the rules are too lax and that many take advantage of them. As the world becomes more global there will likely have to be changes to many immigration systems. What worked 20 years ago probably no longer works. For example being granted H&C because you were removed as a minor was intended for children who had spent a substantial part of their schooling and childhood in Canada. Now it is being used by children who spent 2 weeks as a 4 year old in Canada. Their lives would not be negatively effected if they couldn't continue their schooling in Canada or return to their peer group. As people have discovered this loophole it is being exploited so will likely have to be changed.

So you agree with that immigration is a way for money(economy) and something should be fixed to not to lose money(economy). That what I am thinking too.

I have no complaints for low educated spouses or education-purposed H&C kids. Housewife is a full-time job. And an educated kids especially graduated from a Canadian college or university is what Canada needs. Canada pay for these kids' university tuition. Yes. But Canada didn't pay these kid their education of kindgarden, PS, HS...that's a lot of money too...And people graduated from a Canadian school will be very easy to merge into community and work thus pay tax to government. I see Canadian expierence is the best way for Canada's economy.

 

[zardoz]

Simply make a rule like this: if you cannot become a citizen in 10 years, your PR will be revoked. PR is a 10 years status. No any government resource will be wasted on reviewing qualification of this stupid policy. No exception, no appeal, no report.

The obvious flaw here is the inability to be a dual citizen of a significant number of countries. Germany and India to name just two...