PR Obligation not Met - Renewal ??

[shettyhemant]

Hi,


I was granted a PR in Oct 2014 however I had to go back due to a medical emergency of my father.

He was critical and was in and out of the hospital several times. I had to be there to support my mother as I am the only child. He passed away in 2017. Long story short, I came back to Canada in 2018 and do not meet the residency obligation until Sept 2020. However I had applied for my spouse PR in Feb 2019, had an interview call in July 2019 and was approved for sponsorship based on the fact that the officer was convinced from all the documents submitted that I couldn’t stay in Canada then for a genuine reason (even submitted a cover letter upfront stating that I don’t meet the residency obligation) and came back as soon as I could. The officer left notes on the file (GCMS notes) that she is convinced that I am here for good and will continue to reside in Canada with my wife, which was always the intention however I couldn’t due to the unforeseen circumstances.

I now want to renew my PR card and I was wondering if I will be allowed to do that considering that they have already evaluated my residency obligation concern due to H&C reasons.

Senior members please advise if it is ok to do so or should I wait until Sept 2020. I have no immediate plans of travelling out of the country but want to have a valid PR card in case of an emergency.


@dpenabill – would be very helpful to know your take on this.


Thank you.

 

[k.h.p.]

Do you have any record of a H&C consideration evaluation of your residency obligation? What you've shared is positive and encouraging, but I would still be worried.

 

[shettyhemant]

Do you have any record of a H&C consideration evaluation of your residency obligation? What you've shared is positive and encouraging, but I would still be worried.

thank you for the quick revert. I only have the GCMS notes from the officer. She didnt mention it was an H&C case but I am assuming they considered it to be one.

 

[k.h.p.]

So that's the part that concerns me. On balance, you're probably okay, but you may fall into the trap of the very long approval time for the card - referral to local office, etc.

Personally, I'd wait.

 

[shettyhemant]

So that's the part that concerns me. On balance, you're probably okay, but you may fall into the trap of the very long approval time for the card - referral to local office, etc.

Personally, I'd wait.

thank you for your response.

 

[dpenabill]

Hi,
I was granted a PR in Oct 2014 however I had to go back due to a medical emergency of my father.

He was critical and was in and out of the hospital several times. I had to be there to support my mother as I am the only child. He passed away in 2017. Long story short, I came back to Canada in 2018 and do not meet the residency obligation until Sept 2020. However I had applied for my spouse PR in Feb 2019, had an interview call in July 2019 and was approved for sponsorship based on the fact that the officer was convinced from all the documents submitted that I couldn’t stay in Canada then for a genuine reason (even submitted a cover letter upfront stating that I don’t meet the residency obligation) and came back as soon as I could. The officer left notes on the file (GCMS notes) that she is convinced that I am here for good and will continue to reside in Canada with my wife, which was always the intention however I couldn’t due to the unforeseen circumstances.

I now want to renew my PR card and I was wondering if I will be allowed to do that considering that they have already evaluated my residency obligation concern due to H&C reasons.

Senior members please advise if it is ok to do so or should I wait until Sept 2020. I have no immediate plans of travelling out of the country but want to have a valid PR card in case of an emergency.

For the most part I agree with the observations posted by @k.h.p. . . .

. . . noting, however, I am almost always reluctant to forecast outcomes in specific individual cases. And I am especially reluctant to advise a particular course of action in an individual case. With more or less obvious exceptions, like advising someone to follow the instructions and be honest, or no-risk actions like contacting the Help Centre or making an ATIP request for copies of personal records. Or no-brainers, like advising the PR in breach of the RO to wait until being in compliance to make any application with IRCC.

That said . . .

One of the distinctions often overlooked in forum discussions is the difference between actions which RISK a negative decision affecting status, affecting the outcome, VERSUS actions which may elevate the RISK of non-routine processing leading to delays in decision-making, delays in the outcome.

Applying for a new PR card before being in full compliance with the PR Residency Obligation involves BOTH kinds of RISKS.


OUTCOME RISK:

In the situation you describe, it appears (without knowing all the details) that the RISK of a negative decision resulting in the issuance of a 44(1) Report and a Removal Order, and the loss of PR status, is fairly low. In particular, even if there was not a formal H&C decision which would be binding on other IRCC decision-makers (absent any material change in circumstances), it looks likely there would be a favourable H&C decision for a PR card application. This is especially so if you have remained IN Canada in the meantime, adding nearly another year toward being in compliance with the RO (one of the most important factors, if not the most important factor in evaluating H&C cases, is how many days the PR has been IN Canada).

The PROBLEM with this is the severity of the consequences. The risk of falling may be low. But if you fall, the consequences could be the loss of PR status. Is that a risk worth taking? (The risk involved in playing Russian Roulette, for example, is quite low, better than 80% odds NO problem; but no rational person will take that risk given the potential severity of the consequences.)

PRs who have a compelling need to travel abroad may very well need to take this RISK. PRs who can easily wait until there is virtually NO RISK of losing PR status will ordinarily elect to do that, to wait until there is virtually no risk.


RISK of DELAYS DUE to NON-ROUTINE PROCESSING:

In contrast, relying on a favourable H&C decision in an application to renew or replace a PR card probably has a significant or even high RISK of non-routine processing which could mean a lengthy delay in actually obtaining a new PR card. Not much point in rushing to apply for a new PR card if non-routine processing is likely to delay getting the new card for six months or more, perhaps a year if the application is referred for Secondary Review.

And, in the special circumstances you describe (where, given the decision about your eligibility to sponsor a spouse, it appears IRCC officials have already made a favourable H&C decision, at least tacitly if not expressly), the risk of non-routine processing will probably drop considerably as soon as there is no need at all to evaluate H&C reasons; that is, as soon as you reach that 730 days within five year compliance threshold.

The latter is somewhat different than the situation for many PRs who have breached the RO; most will still have a significantly elevated risk of non-routine processing even if they wait for weeks, even months, after getting into compliance. Leading to some . . .

Additional Decision-making Considerations (addressing considerations which may be more relevant to other PRs):

continued to a separate post . . .

 

[dpenabill]

Additional Decision-making Considerations (addressing considerations which may be more relevant to other PRs); When it may be OK to apply for a new PR card SOONER than the date the PR is in compliance with the PR Residency Obligation:

For many PRs who have returned to Canada without being Reported, despite being in breach of the RO, the risk of losing PR status if they apply for a new PR card sooner, rather than waiting until they are in compliance, is high enough to make it foolish to apply for the new PR card without waiting. That said, for more than a few the risk of losing PR status will drop to virtually no-risk sometime before they reach the 730 days within five year compliance threshold. The risk of non-routine processing delay is still high, BUT many should be able to safely (little risk of losing status) make the PR card application at least a month or three, perhaps even more, BEFORE they are in full compliance with the RO.

This flies in the face of what many, including me, often say with emphasis: for a PR allowed into Canada without being reported despite being in breach of the RO, best to wait until getting into full RO compliance before making any application to IRCC, including a PR card application.

I have been, until now, reluctant to address this nuance explicitly for a variety of reasons. The main reason is that the safest approach is simple: a PR should not initiate any transactions with IRCC or CBSA unless and until the PR is in full compliance with the RO. That is hands-down the most solidly protected and easiest to follow approach. Whereas what I am about to explain is a bit complicated and involves some wrinkles that some might too easily overlook.

Why go into this? For many PRs in these situations the risk of non-routine processing for a PR card application is high and it will remain high for MONTHS past the date they get into full compliance. That is, they are not likely to reduce their timeline much by waiting longer. In contrast, many (but not all, which is where the dangerous wrinkles could trip some) can make the PR card application WEEKS or even MONTHS before they are in full compliance with very little or virtually no risk of losing PR status. They are for sure risking non-routine processing, but that will continue to be an elevated risk for months after they get into full compliance anyway. But they can probably apply for a new card with minimal risk of losing PR status.

PLUS, forum reporting of personal experience includes more than a few reports from PRs who did NOT wait, who applied before getting into full compliance, many of whom do NOT lose PR status. But they are referred to a local office for non-routine RO compliance related processing, or referred for Secondary Review. Some will be Reported, issued a Removal Order, and lose PR status. Many others are not losing PR status, but they do face significant non-routine processing timeline delays. The difference is not about being lucky or not.

Thus, while the overall risks of delays will be the same applying weeks or even some months BEFORE they reach the 730 days within five year compliance threshold, for SOME (again NOT all) there is minimal if any risk of losing PR status. So there is little to be gained waiting much more. And indeed, we see more than a few reports from those who have done this.

WHY? What explains this?

Unlike an application for something like citizenship, or the application to sponsor a spouse, the date the application is made when applying for a new PR card is NOT so important.

When a PR applies for citizenship, for example, if the applicant did not meet the presence requirement as of the date the application was made, the application MUST fail, it must be denied, no matter how long the applicant remains in Canada after applying. To be eligible to sponsor a family member, for another example, the sponsor must be eligible the day the application is made and remain eligible throughout the period of processing the application.

In contrast, if a PR makes a PR card application short of being in compliance with the RO, but IRCC does not even open the application until after the PR has added additional days IN Canada sufficient to be in compliance, there is virtually NO risk of losing PR status. As long as the PR is in compliance a day before IRCC makes a determination as to RO compliance, the PR is not inadmissible and not subject to being Reported, not subject to losing PR status.

That is, unlike counting days toward citizenship eligibility, which is fixed as of the date the application is made, days a PR is in Canada AFTER applying for a new PR card continue to count toward meeting the PR RO. Thus, if by the time IRCC opens a PR card application the PR is in compliance with the RO, it does not matter if the PR was short on the day the application was made. And, in practical terms, the window is much bigger than that because in practice IRCC does not make a negative RO compliance decision when it opens the PR card application; in practice, if upon opening the application IRCC perceives a RO compliance issue it will make a request for additional documents and information, and not make a formal RO compliance decision until the date of an interview. If in the meantime the PR has spent enough days in Canada to get into compliance, the PR legally meets the RO and is NOT inadmissible, so NO 44(1) Report should be issued.

Mistakes are sometimes made. IRCC is far from perfect. But what matters is whether the PR is in compliance, or not, on the day the determination is being made. If the PR has been IN Canada 730 or more days in the five years prior to the day a 44(1) Report is issued, that Report will NOT be valid in law.

WHY this can be a bit tricky: REMEMBER, days in Canada more than five years ago FALL out of the calculation. Staying IN Canada does not necessarily add days to the PR's calculation IF days in Canada from five years past are falling out of the calculation at the same time.

Edit to note that the above is NOT about relying on H&C reasons in making an application for a new PR card. A PR who has been issued a PR Travel Document specifically based on H&C reasons can safely apply for a new PR card once the PR has established a permanent residence in Canada. Similarly a PR who is issued a 44(1) Report at the border but then the Minister's Delegate decides to NOT issue a Departure Order based on H&C reasons.

 

[yogigal]

Thanks for this detailed response. I am however confused about one scenario.
Let's say that someone enters Canada about 750 days before their PR expires, which leaves enough room to meet the RO even by a slim margin. They have also applied for their spouse's PR. Are you suggesting that there is a non-zero risk of sponsorship being denied? One might argue that if someone landed in the country 750 days before their PR expires, there is a really good chance they will meet their RO. Thoughts on that?

 

[k.h.p.]

Thanks for this detailed response. I am however confused about one scenario.
Let's say that someone enters Canada about 750 days before their PR expires, which leaves enough room to meet the RO even by a slim margin. They have also applied for their spouse's PR. Are you suggesting that there is a non-zero risk of sponsorship being denied? One might argue that if someone landed in the country 750 days before their PR expires, there is a really good chance they will meet their RO. Thoughts on that?

They're not yet in violation of their RO.

However, if they applied for spousal sponsorship when they were outside Canada, then they have an issue.

 

[dpenabill]

I am however confused about one scenario.
Let's say that someone enters Canada about 750 days before their PR expires, which leaves enough room to meet the RO even by a slim margin. They have also applied for their spouse's PR. Are you suggesting that there is a non-zero risk of sponsorship being denied? One might argue that if someone landed in the country 750 days before their PR expires, there is a really good chance they will meet their RO. Thoughts on that?

Once again I agree with the observations posted by @k.h.p. . . .

. . . but once again I have some additional, lengthy observations to add, mostly for clarification.

Some key points I will address:

-- PR status does not expire; PR cards expire
-- Date PR card expires is NOT RELEVANT when calculating Residency Obligation compliance
-- There are RISKS whenever a PR's compliance with the RO is cutting-it-close​

Many, many refer to when their "PR expires" meaning the PR card and not PR status. But this is such an important distinction, my approach is to expressly clarify this so there is no misunderstanding. PR status never expires. (Status can be terminated, of course, but it does NOT expire.)

Which brings us to a query about a PR's situation "750 days before their PR expires." The query makes no sense unless it is assumed it is about a PR who comes to Canada and thus is "in the country 750 days before their PR [card] expires." Even assuming this, that is NOT anywhere near enough information to assess the situation. After all, the date a PR card expires has NOTHING to do with calculating the PR's compliance with the Residency Obligation.

Focusing on another part of the query, and assuming its accuracy, might help. That is, the part of the query which states the PR arrives in Canada with "enough room to meet the RO even by a slim margin." A PR who is IN Canada and who is in compliance with the PR will for-sure continue to be in compliance as long as the PR remains IN Canada. Of course that is NOT the only eligibility requirement to sponsor a family member. But, if a PR returns to Canada BEFORE failing to meet the RO, as long as that PR continues to stay IN Canada he or she is in compliance with the RO, for-sure, and thus should have minimal risk of being deemed ineligible to sponsor based on that particular issue.

EXCEPT . . . except that cutting-it-close has some risks. There are logistical, practical risks, for example. A sudden family emergency abroad. A compelling need to travel abroad for employment. In such situations, if the PR is compelled to go abroad for more days than his or her "slim margin," being in compliance with a "slim margin" can abruptly slip into non-compliance, a breach of the RO. And as lenient as IRCC and CBSA often are, make no mistake, a PR in breach of the RO is at risk of losing PR status anytime the PR engages in a transaction with IRCC or CBSA.

BUT there are also potential PROOF-of-Compliance risks when a PR is cutting-it-close. The burden of proving compliance with the RO is ON the PR.

Remember, after the third year anniversary of the date of landing, compliance with the PR Residency Obligation becomes a question of fact depending on how many days the PR has been IN Canada and how many days the PR has been outside Canada. IRCC does not have a crystal ball or an open communication channel with a supreme omniscient creator. Sure, CBSA can and will provide IRCC with an accurate record of KNOWN dates of entry into Canada. And there are various sources and methods for verifying dates of exit from Canada. BUT there is no guarantee these are complete, that they constitute a record of each and every entry and exit. While the CBSA entry record is increasingly reliable as a complete record of entries, it is possible, quite easy in fact, to skirt CBSA collection of this information, so it is NOT entirely relied upon to be complete.

Thus, IRCC relies extensively on the ONE BEST source of information about a PR's travel dates: the PR himself or herself (the PR being the one and only person, in the whole world, who was for sure there each and every time the PR left and returned to Canada).

Indeed, IRCC looks to the CBSA travel history and other sources and methods mostly to VERIFY what the PR reports. If all the collateral information concurs with the PR's reporting, then IRCC will generally rely on the PR's reporting.

If the CBSA travel history and other sources and methods raise some concern or question about the completeness or accuracy of the PR's reporting, that elevates the RISK of non-routine RQ-related inquiries. If there is any evidence or indication a PR might not have been IN Canada when the PR claims to have been in Canada, that will raise concerns and questions. Thus, for example, a LinkedIn account which appears to indicate the PR had employment outside Canada during a time the PR claimed to be in Canada is something that has triggered elevated scrutiny and skepticism about the PR's accounting. Lack of evidence of employment or a place of residence in Canada might trigger concerns. Even a flyer showing a PR to participate at a conference outside Canada during a time the PR reported being in Canada can be a big problem (this is referring to an actual case and obviously the evidence of being outside Canada just the day of the conference did not result in a failure to meet the RO, but the fact the evidence indicated the PR was outside Canada when he claimed to be in Canada resulted in CIC discounting any time the PR claimed to be in Canada but did not directly prove it; the official decision did not disclose how CIC obtained the conference flyer).

Obviously, for those who are cutting-it-close that in itself tends to elevate the level of scrutiny. For obvious reasons. And given the very lenient RO, any PR who is cutting-it-close has clearly been outside Canada significantly more than IN Canada, so it would be entirely REASONABLE to make the inference, in case of any doubts about any period of time, the PR was where the PR usually was: OUTSIDE Canada.

So, to be clear, my previous posts should NOT be construed to guarantee NO problems for a PR who reports meeting the RO. What a PR reports and what IRCC perceives can often diverge . . . and for the PR who is cutting-it-close, it does not take much of a divergence for it to make a difference in the outcome.

THAT SAID . . . the situation reported by @shettyhemant, and which I commented on above, illustrates another more positive side of this equation. IRCC does NOT play GOTCHA games. It is readily apparent that IRCC is far more focused on enforcing the RO consistent with the purposes of PR than it is in penalizing technical breaches of the RO (to the chagrin of a few forum participants who advocate strict enforcement). So the PR who is IN Canada, who is PERMANENTLY settled in Canada, has a considerable advantage despite falling short or cutting-it-close: IRCC appears to lean toward allowing such a PR to keep status. This is NOT a license to breach the RO. This does not negate the oft emphasized conventional wisdom that a PR IN Canada but in breach of the RO should WAIT until getting into compliance BEFORE initiating any transaction with IRCC. But it does explain why some who are short of compliance are given some substantial leeway. And it is reassurance for the PR who is cutting-it-close that will be enough especially if it appears he or she is now PERMANENTLY settled in Canada.

 

[syahska]

Pardon me if my note here is not relevant. I have 14 days left on my PR to meet the obligation and my PR card is valid until My 2023. Unfortunately, my wife suffered a miscarriage in my home country 2 weeks ago when she was in her 3rd month and she is devastated. On hearing this news, my mum in law suffered a heart issue and was admitted in the ICU for a day. With all this, I plan to travel home fo 30 days including approval from my Canadian employer to work from my home country for 2 weeks. Will I have a problem to re-enter Canada when I return back. When will I be serve the removal notice. I moved into my new apartment 5 days ago and have a contract for 12 months. My Canadian job is there for sure and while I am in my home country, I will keep getting my salary. I will not meet my PR obligation but have to be with my wife for this short period to beget her out of the mental struggle she’s facing after the miscarriage. Will this be considered to be humanitarian and compassionate grounds. Please devise since I fly in 6 days to my home country.