Non fulfillment of RO

[snadhan]

Hi

I hold a PR from mid 2013 and have been travelling to Canada twice a year starting 2014 to visit my family (wife & 2 kids) who have been residing in Canada since then. Considering I do not meet residency obligations. I would like to continue to travel on my PR till it expires and then if my PR cannot be renewed will have no other choice, I understand, but to renounce my PR and apply for a TRV or Visit visa to continue to visit the family. Can you please advise on the following queries which relates to this

1. If I do get stopped at the airport for non-fulfillment of RO. What actually happens proceduraly? Will they make me renounce my PR at the airport and deny me entry into Canada or can i confirm to them my intention to renounce and continue to travel till the expiry of my PR card and then renounce my PR.
2. If I refuse to renounce until the expiry of my PR I understand that I will be reported. Will this affect my chances of getting a TRV or visit visa or my spousal sponsorship after renouncing of PR.
3.What are my chances of getting a visitor visa or TRV on renouncing my PR?
4. On renouncement I intend to re-apply vide spousal sponsorship. Are there any other factors such as being stopped at the airport for non-fulfillment of RO or renouncement affect my application under spousal sponsorship

Would appreciate your comments / guidance in the matter

 

[dpenabill]

Hi

I hold a PR from mid 2013 and have been travelling to Canada twice a year starting 2014 to visit my family (wife & 2 kids) who have been residing in Canada since then. Considering I do not meet residency obligations. I would like to continue to travel on my PR till it expires and then if my PR cannot be renewed will have no other choice, I understand, but to renounce my PR and apply for a TRV or Visit visa to continue to visit the family. Can you please advise on the following queries which relates to this

1. If I do get stopped at the airport for non-fulfillment of RO. What actually happens procedurally? Will they make me renounce my PR at the airport and deny me entry into Canada or can i confirm to them my intention to renounce and continue to travel till the expiry of my PR card and then renounce my PR.
2. If I refuse to renounce until the expiry of my PR I understand that I will be reported. Will this affect my chances of getting a TRV or visit visa or my spousal sponsorship after renouncing of PR.
3.What are my chances of getting a visitor visa or TRV on renouncing my PR?
4. On renouncement I intend to re-apply vide spousal sponsorship. Are there any other factors such as being stopped at the airport for non-fulfillment of RO or renouncement affect my application under spousal sponsorship

Would appreciate your comments / guidance in the matter

Before getting bogged down in details, a key factor in what you decide to do depends on your future plans, and in particular on whether or not you plan to come to Canada to stay, and if yes, you plan to come to Canada to stay, the key is when do you plan to settle permanently in Canada.

First, the PoE procedure:

A PR cannot be made to renounce status. Renouncing PR status is entirely voluntarily. A PoE officer may offer or even suggest renouncing PR status. A PoE officer should not encourage let alone push a PR to renounce status, although apparently this does happen sometimes. Nonetheless, the PR cannot be forced to renounce status, and many if not most are better off not renouncing status. However, indeed in some circumstances renouncing status can be the more prudent, practical approach. But that depends on a lot of circumstances.

A PR cannot be denied entry into Canada (while there are exceptions, those would be security or criminality related, not about PR Residency Obligation compliance, and those individuals are subject to being detained rather than denied entry).

If a PR is referred to Secondary and examined at the PoE regarding PR RO compliance, and the officer determines that the PR is in breach of the PR RO, the worst case scenario is the officer issues a 44(1) Report for Inadmissibility (due to PR RO breach), which is almost immediately referred to another officer (technically a "Minister's Delegate") who interviews the PR (technically this is a "hearing"), in person or telephonically, and issues a Departure Order (sometimes called a "Removal Order"), and then the PR is ALLOWED to enter Canada.

In the course of that process, the possibility of renouncing PR status may arise or even be discussed. Deciding to NOT renounce PR status at that time will NOT negatively affect any of the options you will have.

There are too many factors to consider, regarding when it would be better to renounce PR status, to go into those in any depth now. The more obvious situations typically involve a PR who is way, way in breach of the PR RO, who has minimal reasons which might make a H&C case for keeping PR status and thus virtually no chance to win an appeal, whose plan was merely to visit for a relatively short time (less than six months), and there is no other benefit likely gained by making an appeal.

There is probably some benefit in appealing for you depending on your particular circumstances and your future plans. Again, for you a key consideration is whether you plan to actually come to Canada to stay, and if so, when.

In the meantime, the expiration date on your PR card does not mean much at all. Sure, you can decline to renounce PR status while you PR card is still valid. You can decline to renounce PR status after your PR card expires.

If you are reported at the PoE and a Departure Order is issued, as I already noted you will then be allowed to enter Canada. You are given a specific period of time in which to make an appeal. If you do not appeal, you lose PR status when that time passes. Even though you still have a valid PR card in possession, it would no be longer valid. PR status would be gone.

If, or when reported and issued a Departure Order, you will probably want to appeal. Do so within the time for doing this (I forget whether that is 30 or 60 days from the day the Departure Order is issued). Making the appeal itself is not complicated. No lawyer is needed. If you think you have a chance to win the appeal, you will do better by getting a lawyer at some point during that process, but you do not need a lawyer to make (in effect start) the appeal itself.

If you appeal, you keep PR status pending the outcome of the appeal. Appeals can take from many months to over a year, sometimes two years. If your current PR card expires while the appeal is pending, you can apply for and should be issued a special one-year PR card. This can be done again if the appeal remains pending when the one-year card expires.


Advantages to making an appeal:

Again, perhaps the most important consideration in your circumstances is whether or not you plan to come to Canada to stay, and if yes, when.

For example, if your plan is to come to Canada to stay in the near future (less than a year, the sooner the better), and you appeal, if you then settle in Canada while the appeal is pending, and it takes a significant amount of time before the appeal is decided, the combination of having your family living and well-settled in Canada, and you finally staying permanently in Canada, significantly increases the likelihood of succeeding in the appeal.

This can be a bit tricky, depending on how much you actually were in breach of the PR RO and the reasons why you remained outside Canada, so it is very difficult to forecast how this will go for you in particular. The reported IAD decisions tend to indicate a big difference between the spouse who is still working and living abroad versus the spouse who has finally settled in Canada with his or her family who is well-settled in Canada. If the PR spouse is still working abroad, fact that family is in Canada does not help the PR's H&C case much at all . . . indeed, since the family has been getting along with the one spouse mostly abroad, that evidences the family will not suffer much hardship if the one spouse loses PR status.

In contrast, if IRCC perceives that the PR spouse is finally settled in Canada, and the longer the PR has been in fact staying in Canada at the time of the IAD hearing (which can easily be well more than a year after the Departure Order is issued), the more likely IRCC is to allow the PR to keep status.

The significance of the difference between being settled in Canada and still primarily being abroad cannot be overstated: it is huge. (It is a significant factor in almost any H&C case, but in the case of a PR spouse with family settled in Canada, it is huge.)

It may be that IRCC perceives that denying the appeal will be followed by a sponsored PR application, which is likely to be successful, so there is no point in bogging down IRCC resources in order to make the PR jump through those hoops. But make no mistake: without settling in Canada before the appeal is decided, the outcome in these cases tend to be negative, loss of PR status.

Obviously, other factors are significant. The extent to which the PR breached the PR RO is a big one. The reasons why are important.

Ignore advise which does not recognize how variable H&C cases are. For example, disregard any assertion that the need to stay working abroad is not grounds for H&C relief.

It is true that generally the PR who is in breach of the PR RO due to economic factors, leading to the PR working abroad, is not given much of a break because of his or her need to work abroad. BUT this reason can really help the PR who nonetheless settles his family in Canada and makes a concerted effort to himself move to Canada, but due to economic need that is delayed resulting in a breach of the PR RO. By itself, the economic reason is unlikely to persuade Canada to allow the PR to keep status, but in combination with other positive factors, like family settled in Canada and the PR himself finally settling in Canada before the decision is made, it can really help. Especially if it appears the PR's agenda was to in fact fully make the move to Canada to settle permanently but circumstances made it too difficult to do so in time to meet the PR RO.

A lot can depend on whether the PR appears to deserve to keep PR status.

There is no requirement that a PR settle permanently in Canada. There is no requirement that a PR deserve to keep PR status. These are, nonetheless, huge factors in making the H&C case for keeping status.


CAUTION Regarding Spousal Sponsorship If PR Lost:

First, it warrants noting that all other things in order, the individual who has lost PR status due to a breach of the PR RO is NOT disadvantaged by this relative to visiting or obtaining other status. On the contrary, all things being equal, such individuals are generally not considered to be at risk of overstaying a visa, or of working in Canada without status, making it easier to get temporary status. And there is no negative impact on any subsequent PR application, be that the Express Entry or Spousal Sponsored application.

But there is little to be gained by rushing to make the spousal sponsored PR application unless and until there is a firm plan to actually settle permanently in Canada.

There are exceptions to this. I have already gone way long in this post and will not go down that road here. But generally, so long as there are no other negatives (criminal charges for example) impeding obtaining visitor status to visit family, better to do that, get temporary status as appropriate, for the purpose of visiting Canada unless and until planning to actually settle in Canada.

 

[snadhan]

Thank you so much dpenabill. The explanation is very detailed and clear. I have every intention of living permanently in Canada with the family in the next 3 years. The separation over the last few years has been difficult considering we are married for 20 years now . However, due to certain financial obligations we decided on this move
Thanks again for your reply.

Should any queries arise subsequently will refer back

 

[snadhan]

Hi Dpenabill

Needed on your advice on the best way forward considering non-fulfillment of RO!!

1. Do I attempt to renew my PR card and if refused give up PR status and then apply on spousal sponsorship when ready to move?

OR

2. Do I give up PR status and apply on spousal sponsorship without attempting renewal

Would really appreciate your view on this

 

[Rob_TO]

1. Do I attempt to renew my PR card and if refused give up PR status and then apply on spousal sponsorship when ready to move?

If you aren't currently in Canada, then you can't apply to renew your PR card. You must be inside Canada to do this.

If you can return to Canada with your valid PR card, and not be reported by CBSA upon entry for not meeting RO, you then have 2 options:
1. Stay in Canada 2 years straight without leaving to come back into compliance with RO. After this, you can apply to renew PR card with no worries
2. Apply immediately for PR card renewal on H&C basis. High chance here of rejection, and starting process to revoke your PR status.

If your PR card expires, you can then try for PR TD on H&C grounds but again, probably a good chance of rejection. If by some reason PR TD is approved on H&C reasons, you could then return to Canada and renew PR card immediately.

2. Do I give up PR status and apply on spousal sponsorship without attempting renewal

Yes you can do this also. This may be be a quicker and easier solution vs hoping you aren't reported and waiting 2 years in Canada.
If you did want to renounce your PR status, you can do so here: http://www.cic.gc.ca/english/information/applications/voluntarily-renounce.asp

 

[snadhan]

Thanks Rob. Appreciate the quick reply

 

[snadhan]

Hi Guys

Desperate need of advice and way forward!!

Applied for renewal of PR on H & C and was called for an interview in Canada. Entered by road through US and attended interview. However, did not qualify under H & C grounds and report 44(1) issued. Case referred to Minister delegate pending another interview. PR card was taken by the officer and was asked to apply for a PRTD if out of Canada to collect a 1 year PR card in person so that I can attend the next interview when intimated to me.

Please advice me on my options. Do I pursue on this route further or renounce and put in a spousal sponsorship application. Will this in any way affect my spousal sponsorship. Please help. Want to rejoin the family in a years time

 

[dpenabill]

Hi Guys

Desperate need of advice and way forward!!

Applied for renewal of PR on H & C and was called for an interview in Canada. Entered by road through US and attended interview. However, did not qualify under H & C grounds and report 44(1) issued. Case referred to Minister delegate pending another interview. PR card was taken by the officer and was asked to apply for a PRTD if out of Canada to collect a 1 year PR card in person so that I can attend the next interview when intimated to me.

Please advice me on my options. Do I pursue on this route further or renounce and put in a spousal sponsorship application. Will this in any way affect my spousal sponsorship. Please help. Want to rejoin the family in a years time

Not sure why there is a "Desperate need of advice and way forward!!" since what you need to know has been quite thoroughly addressed in posts above responding to your previous query, including posts by @Rob_TO as well as myself. And that information should be sufficient for you to make decisions going forward.

Apart from the precise procedure at this juncture, regarding which I am a bit confused given . . . well, the procedural details are of little import at this stage given that regardless of where, exactly, your case now stands (whether a Departure has been issued, or will be issued, or IRCC will allow the case to be in limbo until you apply for a PR TD or otherwise seek entry at a PoE) your options are now limited:

(1) appeal and stay, OR

(2) plan to lose status (soon or very soon or even sooner by surrendering it) and have your spouse sponsor you for PR again.


In particular:

-- IF you STAY AND APPEAL the 44(1) Report, becoming fully settled and working in Canada pending the outcome of the appeal, there is a chance of saving your status. Just a chance. But you would remain a PR pending the outcome of the appeal. And if you are settled in Canada, staying in Canada, working in Canada, there is a fair chance the IAD would not make you jump through the hoops of being sponsored by your spouse, and thus allow you to keep status (and if the appeal is not favourable, promptly do an inland spousal sponsorship and probably get an OWP easily and fairly quickly, so you could continue to stay and work , assuming your spouse is eligible to sponsor).

-- BUT if you leave Canada in the meantime, or otherwise are not settled in Canada in the meantime, one way or another the procedure will lead to the loss of PR status; if you appeal, the odds of a favourable IAD decision are LOW . . . it is likely IAD will readily dismiss the appeal and leave it up to you and your spouse whether or not, and if so WHEN, to make a sponsored application for PR so you could have PR status again.

Again, all of which has been outlined in previous posts above, including posts by @Rob_TO as well as myself, in which the situation and options were thoroughly outlined. And that information should be sufficient for you to make decisions going forward. If in doubt, see a lawyer.

At this juncture, unless you plan to STAY and APPEAL, the precise manner in which a final decision is rendered resulting in loss of PR status is more or less insignificant. Surrendering status is the fastest way to that end. The other ways should not take all that long either, although it could depend on when you attempt to return to Canada again (there have been some reported cases in which a Minister's Delegate review was not done for some time . . . as if IRCC is sometimes content to suspend a final decision until the PR attempts a return to Canada). But again, the precise procedure at this stage is not particularly important. Either STAY and APPEAL the 44(1) Report, or proceed on the basis of losing status, and then, WHEN YOU and your spouse are READY, do the sponsored PR application.

 

[snadhan]

Thanks for the detailed reply @dpenabill and understand that the earlier posts were very clear on way forward should this happen.. Really appreciate the details given by yourself and @Rob_TO. My apologies for the rerun. Can I request your advice on below comment?

Considering that I am out of the country and a 1 year valid PR will be issued after written intimation by IRCC for collection in person will this improve my chances of getting a PRTD on applying to the relevant Canadian mission (with a copy of this written intimation) to collect this card in person and ready myself to attend the next level interview with the ministers delegate when called to?

 

[dpenabill]

Considering that I am out of the country and a 1 year valid PR will be issued after written intimation by IRCC for collection in person will this improve my chances of getting a PRTD on applying to the relevant Canadian mission (with a copy of this written intimation) to collect this card in person and ready myself to attend the next level interview with the ministers delegate when called to?

As I said, precisely where this is at procedurally I am not clear. I am not sure of the precise status of things between the issuance of a 44(1) Report by an in-Canada office and a Minister's Delegate review. We see very few reports of personal experience from PRs who have been at this stage and not only are there relatively FEW relevant IAD and Federal Court decisions (PR RO cases almost always arise from a denied PR TD or a PoE issued 44(1) Report and Departure Order; so very few decisions involve an inland office 44(1) Report due to breach of PR RO), those few decisions do not offer any detail about the procedure beyond referencing the fact of an appeal from a negative PR RO determination (even the fact the case derives from an inland Report is often not apparent and the best I can do is extrapolate from the circumstances if and when this is the situation, and again I have seen no more than a very few of these cases in official decisions).

But as I also noted, for the most part the precise procedure does not alter the main decision to be made: Stay in Canada and appeal, or lose PR status.

But you are already outside Canada again. Stay and appeal is no longer an option then. Are you considering returning soon, STAYING, and appealing? Have you already made an appeal?


Here is what I know:

For PRs with an appeal in process, they can apply for and be issued a one-year PR card. This application needs to be made from IN CANADA, and probably PICKED up in person. My GUESS is this is the procedure you have been advised about . . . or, possibly IRCC has already issued a one-year card AND you need to return to Canada in order to pick it up in person.

NOTE: A one-year PR card is only valid for so long as an appeal is pending. If you do not follow through making an appeal, or the appeal is denied, the card will then no longer be valid. If you appeal, and the appeal takes longer than a year, as long as the appeal is pending you could get a new one year card . . . which, again, remains valid only as long as the appeal is pending.

PR Travel Documents are a separate procedure. PR TDs are issued by visa offices abroad only to PRs applying from abroad. Typically an applicant who has been denied a PR TD will be advised, in the notice of the decision, that if he or she was in Canada within the previous year and there is an appeal, he or she can apply for and obtain a special PR TD which will authorize travel to and entry into Canada for the purpose of being in Canada for the appeal. Once in Canada, again the PR with an appeal pending is typically eligible for and will be issued a one-year PR card.

But I am not familiar with the precise procedure in the circumstances you describe. I do not know if you need or even can apply for the special PR Travel Document at this stage, or must apply for a PR TD pursuant to the regular process, have that denied, and then make the application for the special PR TD. I am not at all sure, but personnel in the applicable visa office MIGHT be willing to explain how this goes and how to go about it.

Note, getting back to Canada with a special PR TD PROBABLY depends on having an appeal in process (given the amount of time already passing).

Otherwise, a Canadian lawyer should be able to help.

 

[snadhan]

Thank you so much @dpenabill for all your inputs. Really appreciate it.

 

[snadhan]

Hi @dpenabill

Considering I have been issued with a 44(1) report by an in-Canada office after being called to attend an interview in Canada. If I intend to pursue the Minister delegate interview with NO positive outcome I understand that a removal order will be issued and will need to leave the country within 30 days with my PR being revoked. Will going through all these stages and getting a removal order issued affect my spousal sponsorship application?
as there is a clause in the sponsorship application which states " Have you been refused admission to or ordered to leave Canada or any other country?"

Request you advice on this please!!

 

[Buletruck]

Keep in mind a removal order doesn’t carry the same weight as a deportation order. It’s simply a request for you to leave Canada within a specific time. If and when you reapply, as long as you answer truthfully about previous history, it should have no bearing on a spousal application.

 

[dpenabill]

Hi @dpenabill

Considering I have been issued with a 44(1) report by an in-Canada office after being called to attend an interview in Canada. If I intend to pursue the Minister delegate interview with NO positive outcome I understand that a removal order will be issued and will need to leave the country within 30 days with my PR being revoked. Will going through all these stages and getting a removal order issued affect my spousal sponsorship application?
as there is a clause in the sponsorship application which states " Have you been refused admission to or ordered to leave Canada or any other country?"

Request you advice on this please!!

Subject to whatever advice you obtain from a lawyer; at least a consultation with a lawyer is a good idea.

If you timely appeal the 44(1) Report and Departure Order, it is NOT enforceable UNLESS or UNTIL you lose the appeal or drop (including abandon) the appeal. That is, if you appeal, you can stay in Canada until the appeal is concluded.

For example, obtaining a one year PR card is about being able to stay in Canada pending an APPEAL.

As previously noted, NOT much point in pursuing an appeal UNLESS you are coming to Canada to STAY, to establish YOURSELF (not just family) in Canada to live and work in Canada, and you actually do stay in Canada pending the appeal. See previous posts for more about this.


Re Being Sponsored By Spouse:

The proceedings to terminate your PR status must be final before you will be eligible to be sponsored. Or, you can renounce your status. If a Removal Order is issued, the proceedings to terminate your PR status will be final after the time in which you can appeal has passed, or if you appeal, after the appeal is lost.

As long as you do not overstay, as @Buletruck suggests, the proceedings to terminate your PR status for a breach of the PR Residency Obligation will NOT have any negative effect on a subsequent sponsored PR application. Yes, of course, you will need to respond "YES" you have been ordered to leave Canada. Since a Removal Order is such an order. BUT that will NOT have any negative effect (should have NONE at all) on an application for PR sponsored by your spouse.


Reminder:

Always give honest, truthful answers to questions from CBSA and IRCC. Even if it seems the answer will have a negative impact, the best answer is the truthful one. CBSA and IRCC can and will APPROPRIATELY determine the effect of the answer. If there should be no detrimental effect, it will almost always in fact have no detrimental effect. CBSA and IRCC know how to sort these things out. The applicant's job is to give them truthful information.

Way too often immigrants or those applying to immigrate are afraid to truthfully answer some questions, and succumb to the temptation to fudge or outright conceal the truthful answer. That is a MISTAKE. Odds are IRCC knows or will know or will find out the truth, anyway (even if there are more than a few cases when they don't, there are many more when they DO), so it is simply best to be truthful and IRCC will appropriately, correctly (at least MOST of the time, as in almost even if not quite always) sort and figure things out.

 

[snadhan]

Thanks buletruck & dpenabill. To the best of my knowledge have been truthful and intend to do so. Thank you so much for all the advice!!!