New IRB decision on Residency Obligation
- Thread starter Tubsmagee
- Start date
Frustrating that Canada gives away PR and citizenship so easily in my opinion.
One can hope that the Immigration Critic from the Opposition is making notes on this, if they should get into power. All they would have to do is change the law so there’s no ambiguity on staying outside the country. There would be no “ grey “ area
There is one case that is constantly used as precedence which is normal in the law but don't agree with the first judgement. In this case the partner clearly moved to Haiti after the woman had been living there. She also claimed she needed support after a traumatic divorce so moved home but was already in another relationship. She literally remained in Canada until she applied for citizenship and left and only planned to return for the ceremony.
Hi - thanks for posting an interesting decision.
I'd be surprised if there was an appeal as this would open up the term "accompanying" for a definitive interpretation of the word by the FCC. It's a can of worms as it appears here and there in legislation. As it is the IAD may or may not live by this analysis and the department can wait for a more important case to challenge, if it appears at all.
The risk management here would be to either lose this one and continue with the current practice, or to have every instance of "accompanying" in the Act scrutinized for any vulnerabilities. That would be a task.
Wait n see is the usual approach.
This is indeed interesting . . . albeit in the sense that it represents ONE possible outcome among situations in which PRs are relying on credit toward Residency Obligation compliance based on the accompanying-a-Canadian-citizen-spouse (partner) in circumstances which might involve the who-accompanied-whom question.
There is a topic specifically about this issue, including a discussion about Mustafa v Canada, 2018 CanLII 47219 (see http://canlii.ca/t/hs76z ), which while relied on in this IAD decision, is merely another IAD decision. See https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
Obviously an IAD decision will NOT offer a definitive decision regarding how the who-accompanied-whom question will apply in other cases. And, indeed, even if appealed and the Federal Court offered a decision, that too would NOT be a binding precedent and thus NOT definitive, since FC decisions are NOT binding on any other Federal Court . . . and there are already divergent FC decisions about this.
There are, nonetheless, some salient elements evident in this particular case. As is often the case, relative equitable factors might explain the outcome here, including the PR being in a relatively sympathetic situation and the extent of the breach was not huge.
To my view the bigger question is what became of this individual's citizenship application. In this regard it warrants noting that this is a case which began when there was a Harper government and a persistent agenda to preclude granting citizenship to those who appeared to apply-on-the-way-to-the-airport.
In any event, it needs to be emphasized that the outcome in this particular instance does NOT represent the rule. Indeed, even though this particular case arose under a Conservative government, it was the current Liberal government arguing for a who-accompanied-whom analysis that would deny RO credit and thus result in the loss of PR status here. While THIS IAD panel did not agree, the Minister appears to have argued for the application of a who-accompanied-whom approach.
To keep discussion about the who-accompanied-whom issue in a single topic, I have posted my further observations in the Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE topic: