Coronavirus impact to stay requirements

[dpenabill]

Do you think H&C grounds could cover the above situation? The last thing we would want is we quit our jobs & life here in April 2021 and land up at a Canadian POE and are refused entry or flagged for RO breach. The breach of RO which was not intended but happened as a result of things outside our control.

PRs will NOT be refused entry.

If being "flagged" for a breach of the Residency Obligation means being issued a 44(1) Report and Departure Order upon arrival, yes that is a possibility for any PR arriving at a PoE who has failed to comply with the PR Residency Obligation. That is NOT certain to happen, particularly for PRs who have a reasonable explanation as to why they have failed to come to Canada sooner. Even if it does happen, the PR is allowed to enter Canada and allowed to stay in Canada pending an appeal.

Obviously, by a big, big margin, the safest approach to keeping PR status is to arrive in Canada BEFORE failing to comply with the RO. As I have oft repeated, the very BEST H&C case can be tricky, and it tends to be difficult to successfully make even the rather good H&C case.

As I discuss in a lengthy post above, it is quite likely SOME additional flexibility and leniency will be allowed PRs given the situation this year. How much so is UNKNOWN, UNPREDICTABLE, and undoubtedly DEPENDS on how things go from here AND ON the individual PR's personal situation. A lot of variables!

Which leads to addressing additional personal H&C factors: notwithstanding many comments in forums like this about what constitutes a H&C reason and what does not count as an acceptable H&C reason, that is NOT how it works. H&C reasons do NOT work like an on/off switch. CBSA officials, at the PoE, and IRCC officials (such as visa office decision-makers processing a PR TD application), and IAD panels in the IRB, MUST take into consideration ANY and ALL explanations the PR has to offer. What influence any particular element in the PR's explanation has VARIES, and can vary depending on context and the influence of other factors.

One of the most common examples illustrating the variability is a PR's explanation that he remained abroad for employment reasons. Some here will categorically state this is NOT an H&C factor. But actually it can be a positive factor DEPENDING on the context and other factors, the latter including in particular the underlying reasons why the PR felt compelled to stay employed abroad in conjunction with what impact this had on how long it took the PR to come to Canada. Sure, generally staying abroad to work or for business reasons will tend to be a negative factor, for most PRs, but again this does NOT work like an on/off switch, it can go both ways, DEPENDING, and it will have variable weight in the overall assessment as to whether the PR's situation is one in which Canada should allow the PR to keep PR status DESPITE the BREACH of the RO.

At the other end of the spectrum, in a sense, there is the PR with medical reasons for staying abroad. Some here will say yes, depending on establishing the fact of a medical necessity, this is an H&C reason. BUT NO, again, the assessment of H&C reasons does NOT work like an on/off switch. Especially since medical treatment is available in Canada, and generally as readily so. Thus, again, whether or not a medical reason will have much weight in influencing whether H&C relief is allowed, let alone be the primary reason for allowing a PR to keep status, will VARY and can VARY WIDELY, depending on many individual factors.

You reference a significant factor: family support during treatment. So yes, that should be a positive factor tending to have some favourable influence. Whether that will be enough to tip the scales is very, very difficult to forecast.

Thus, APART from any overt relief that Canada might implement given this year's situation, mostly having to do with the impact the pandemic is having on the capacity of individuals to travel, the H&C case

(1) always entails SOME RISK of losing status​

(2) is never anywhere near as safe as getting to Canada in time to avoid a breach of the RO, and​

(3) it is very difficult to forecast since outcomes vary widely depending on many, many individual factors​

This year's situation, again this mostly having to do with the impact the pandemic is having on the capacity of individuals to travel, introduces an additional complicating element. Which includes the possibility that Canada will adopt some more or less formal guidelines regarding enforcement of the PR Residency Obligation. There may or may not be some formal relief. There will be at least some consideration given the impact of the situation (as noted before, any reason affecting how long it took the PR to come to Canada MUST be considered), but how this will factor into an individual case apart from any formal relief cannot be reliably forecast.

Thus, overall, UNLESS and UNTIL there is some official announcement about formal relief based on the events of this year, not coming to Canada in time to comply with the RO will entail taking the RISK of losing PR status UNLESS one's personal explanations are sufficient to persuade Canadian officials the PR DESERVES a chance to keep PR status . . . remembering, the PR gets at least two bites of the apple (the opportunity to persuade CBSA officials at the PoE, and if that is not successful, the chance to persuade the IRB IAD panel who hears the appeal).

Or . . . the SHORT ANSWER: You will likely have a decent to good H&C case to make but that is way shy of any guarantee.

. . . nobody could've planned for this coronavirus crisis . . .

This is not entirely true, given that scores and scores of credible sources have been warning about the need to plan for a pandemic for decades, and there have been some somewhat recent trial runs (the first SARS and H1N1 events). There have also been other types of events which were not specifically predictable but fall under the category of planning in a way that anticipates stuff-happens. Such as the Icelandic volcano eruption a number of years ago that disrupted travel from Europe to North America for several weeks. And then there is always the risk that stuff-happens personally, like getting seriously injured in an automobile crash on the way to the airport for the flight to Canada one had long planned, in time to comply with the PR Residency Obligation.

Nonetheless, as I note above, there will be at least some consideration given to PRs whose travel to Canada was delayed due to this year's situation. Just as there would be for the PR who is involved in a car crash on the way to the airport. How much flexibility or leniency will be allowed is difficult to forecast and will almost certainly vary widely from person to person. Thus, for example, I tend to agree with the observation offered by @canuck78 "Chances are you will likely be fine if you arrive soon after things have settled down." Noting, however, there are no guarantees, and there are some variables.

Note, after all, the explanation "planned to get to Canada just barely in time to meet our RO, and ran into a delay at the last minute," is not exactly the most persuasive argument for failing to meet a rather flexible obligation, even though the delay itself was not the PR's doing. (But, again, if you arrive relatively soon after travel is again practically available, odds probably are good you will not be issued the 44(1) Report at the PoE.)

 

[Berty3000]

Interesting thoughts and comments.

My PR commenced on 9th August 2017. So I need to arrive by 8th August this year to meet RO. That said, i spent two months in Canada as part of my soft landing.

Hypothetically, if I arrive in September, and the immigration officer queries my late arrival, would it be enough to show them some evidence of my previous two month stay? Eg. Rental car agreement, credit card statement... my old passport with stamps? Or do i need to have the two months acknowledged beforehand through some kind of application?

Thanks

 

[canuck78]

Interesting thoughts and comments.

My PR commenced on 9th August 2017. So I need to arrive by 8th August this year to meet RO. That said, i spent two months in Canada as part of my soft landing.

Hypothetically, if I arrive in September, and the immigration officer queries my late arrival, would it be enough to show them some evidence of my previous two month stay? Eg. Rental car agreement, credit card statement... my old passport with stamps? Or do i need to have the two months acknowledged beforehand through some kind of application?

Thanks

The 2 month stay would always count If you arrive within 5 years.

 

[dpenabill]

Interesting thoughts and comments.

My PR commenced on 9th August 2017. So I need to arrive by 8th August this year to meet RO. That said, i spent two months in Canada as part of my soft landing.

Hypothetically, if I arrive in September, and the immigration officer queries my late arrival, would it be enough to show them some evidence of my previous two month stay? Eg. Rental car agreement, credit card statement... my old passport with stamps? Or do i need to have the two months acknowledged beforehand through some kind of application?

Thanks

If you landed and thus became a PR the 9th of August, 2017, and then remained in Canada until the 9th of October, 2017, you do not need to arrive by the 8th of August this year to meet the Residency Obligation. As long as the total amount of time you have spent outside Canada since the date of landing is less than 1096 days, you are in compliance with the RO. And it would be prudent to return to Canada before you have been absent 1096 or more days.

But, yes, after the third year anniversary of landing (so for you the 9th of August, 2020), compliance with the RO is a question of fact which depends in part on how many days you have actually been IN Canada since landing. And yes, the PR has the burden of proving presence, IF challenged.

And thus, of course, if you are cutting-it-close and particularly if really cutting-it-close, then yes it would be prudent to have some evidence of at least the date you last left Canada. In the circumstances you describe I would NOT expect strict scrutiny but there is rarely any harm in being prepared to make the case.


A GENERAL CAUTION:

For those who have done a soft-landing in the past and have been planning to come to Canada in time to comply with the Residency Obligation, let's be frank and open about the situation. As I have described, this year's events will be considered, and almost certainly lead to more flexibility and leniency, at least to some extent, and perhaps plus some. THAT SAID, going forward THE MOVE TO CANADA ITSELF IS NOT LIKELY TO BE EASY unless the immigrant has either some substantial financial resources to fall back on or is particularly employable EVEN IN A TIME of EXTENSIVE UNEMPLOYMENT. Our economy is being hammered. There will be scores and scores of well-settled immigrants who will be struggling to get by in the coming months if not years. This pandemic is going to have an big, bad impact well beyond just the suffering and death caused by the disease itself. It already has had a huge impact. Reliable experts are barely suggesting recovery forecasts because they cannot yet discern the scope of the immediate impact let alone how things will rebound after that.

I do not mean to sow pessimism or otherwise be negative. But for many there will be some hard decisions to make in the coming months, and a measure of realism would be prudent. Canada has a lot of phenomenal opportunities for immigrants. Immigrating here has been the most wonderful experience for me. But there are some tough times on the horizon and anyone planning still to make the move would be wise to scout and evaluate what lies ahead. I, like many I presume, am hoping for the best. But we also need to anticipate and prepare for what might actually happen.

 

[canuck78]

Agree that those moving to Canada really need examine carefully if it is the right thing to do based on your savings and whether you have a good job currently. Canada will be in recession and there will be very little hiring for some time. There are a few exception but people really need to put some hard thought into this. If it is a family it may only make sense for one breadwinner to come to Canada to lower their living expenses in Canada. They can rent a room and look for employment for 6 months or more. Choosing the right city to move to will also be important. Certain cities will be more impacted than others.

 

[dpenabill]

Agree that those moving to Canada really need examine carefully if it is the right thing to do based on your savings and whether you have a good job currently. Canada will be in recession and there will be very little hiring for some time. There are a few exception but people really need to put some hard thought into this. If it is a family it may only make sense for one breadwinner to come to Canada to lower their living expenses in Canada. They can rent a room and look for employment for 6 months or more. Choosing the right city to move to will also be important. Certain cities will be more impacted than others.

And the point about how those with families will fare is indeed of great import, a point well-taken.

What has happened and the impact it will have is what it is. A very unfortunate turn of events for many, many people. A tragic turn of events for far too many.

There is a reason why participation in this forum has slowed dramatically in the last couple or so weeks. There is a global crisis unfolding. Immigration is not entirely on hold, but it is not on the front burner.

For many the process of immigrating can be difficult in the best of times. The coming months are NOT going to be anywhere near close to the best of times.

It is one thing for a young, single person with some savings to make the move and manage. Those with families have a lot more at stake.

And just to be clear about what might be on the horizon, the projections given by health experts in Ontario this last week are forecasting the spread of the disease itself for up to TWO more years. Unlike events such as what happened on and following 9/11/2001, or the Icelandic volcano, or even the global recession in 2008, there will be no easy or short-term turn-around for what is happening now. Experts are still reluctant to forecast much, for good reason, but almost all agree this will be a very-long term event.

I feel bad for those who have invested a lot in plans which are now very much at risk.

In the meantime, I hope everyone is taking care and staying well.

 

[canuck78]

i Understand that people have spent money and have been making plans to move. People need to really have tough conversations on whether this still make sense, whether postponing is possible, what if they can’t find jobs, how much of their savings are they willing to commit to attempting to immigrate. It is not only about covid 19 the worl economy may take a long while to come back after covid only extending the pain.

 

[ExpressEntryStarr]

Thank you for your responses @dpenabill and @canuck78 These are very helpful.

 

[Besram]

FYI, it appears that no formal leniency in regards to the residency obligation will be granted for the time being:

"Notably, IRCC has also indicated that the physical presence requirement will not be lessened for permanent residents. This is important for permanent residents who might not be able to travel back to Canada for an extended period. "
https://www.nortonrosefulbright.com/en-ca/knowledge/publications/e4e6ed35/immigration-and-covid-19-dont-take-anything-for-granted

Obviously this may or may not change in the future, depending on how long travel restrictions and practical impediments to travel remain in place.

Having said that, it is still possible (and maybe even likely) that PRs affected by COVID-19 may be granted some leniency on an individual basis when examined, as others have pointed out.

 

[Bs65]

FYI, it appears that no formal leniency in regards to the residency obligation will be granted for the time being:

"Notably, IRCC has also indicated that the physical presence requirement will not be lessened for permanent residents. This is important for permanent residents who might not be able to travel back to Canada for an extended period. "
https://www.nortonrosefulbright.com/en-ca/knowledge/publications/e4e6ed35/immigration-and-covid-19-dont-take-anything-for-granted

Obviously this may or may not change in the future, depending on how long travel restrictions and practical impediments to travel remain in place.

Having said that, it is still possible (and maybe even likely) that PRs affected by COVID-19 may be granted some leniency on an individual basis when examined, as others have pointed out.

This still comes back to the fact that the residency obligation of 2 years out of every 5 is a generous obligation to meet. If someone is out of the country for such a long time that they cannot meet the RO then failing the RO regardless of COVID travel then it is possible that they were already set to fail the RO.

The COVID situation has just made things more complicated but anyone in this situation either already having failed or about to should have solid H&C reason why even without COVID they should retain their PR status.

Seems unlikely a blanket waiver for the RO due to COVID travel issues would be issued as opposed to a case by case basis.

Above my personal view only

 

[ITmanEU]

Quoted
For those who have done a soft-landing in the past and have been planning to come to Canada in time to comply with the Residency Obligation, let's be frank and open about the situation. As I have described, this year's events will be considered, and almost certainly lead to more flexibility and leniency, at least to some extent, and perhaps plus some. THAT SAID, going forward THE MOVE TO CANADA ITSELF IS NOT LIKELY TO BE EASY unless the immigrant has either some substantial financial resources to fall back on or is particularly employable EVEN IN A TIME of EXTENSIVE UNEMPLOYMENT. Our economy is being hammered. There will be scores and scores of well-settled immigrants who will be struggling to get by in the coming months if not years. This pandemic is going to have an big, bad impact well beyond just the suffering and death caused by the disease itself. It already has had a huge impact. Reliable experts are barely suggesting recovery forecasts because they cannot yet discern the scope of the immediate impact let alone how things will rebound after that.
Unquoted

Could it be that people who are already PR (and in compliance with residency obligations) and who will be travelling back to Canada post COVID19 can be denied entry or face issues to re-enter Canada, if they cannot show sufficient funds/cash, a secured job or equivalent evidence they can self-sustain themselves? to what extent PR's can be impacted / be questioned, if any, in this regard ?

 

[Besram]

Could it be that people who are already PR (and in compliance with residency obligations) and who will be travelling back to Canada post COVID19 can be denied entry or face issues to re-enter Canada, if they cannot show sufficient funds/cash, a secured job or equivalent evidence they can self-sustain themselves? to what extent PR's can be impacted / be questioned, if any, in this regard ?

As a landed PR, there is no requirement to demonstrate any of the things you mention. PRs can only be deemed inadmissible for a limited number of reasons, such as misrepresentation, criminality or not complying with residency obligations.

 

[canuck78]

Quoted
For those who have done a soft-landing in the past and have been planning to come to Canada in time to comply with the Residency Obligation, let's be frank and open about the situation. As I have described, this year's events will be considered, and almost certainly lead to more flexibility and leniency, at least to some extent, and perhaps plus some. THAT SAID, going forward THE MOVE TO CANADA ITSELF IS NOT LIKELY TO BE EASY unless the immigrant has either some substantial financial resources to fall back on or is particularly employable EVEN IN A TIME of EXTENSIVE UNEMPLOYMENT. Our economy is being hammered. There will be scores and scores of well-settled immigrants who will be struggling to get by in the coming months if not years. This pandemic is going to have an big, bad impact well beyond just the suffering and death caused by the disease itself. It already has had a huge impact. Reliable experts are barely suggesting recovery forecasts because they cannot yet discern the scope of the immediate impact let alone how things will rebound after that.
Unquoted

Could it be that people who are already PR (and in compliance with residency obligations) and who will be travelling back to Canada post COVID19 can be denied entry or face issues to re-enter Canada, if they cannot show sufficient funds/cash, a secured job or equivalent evidence they can self-sustain themselves? to what extent PR's can be impacted / be questioned, if any, in this regard ?

They will be admitted but can be reported if they aren’t compliant with their RO. Many PRs use the very lenient RO as 3 years to move to Canada and not 3 years where they can move when the economy is good and when they wrap up their affairs. When people leave it up to the 3 year mark they leave themselves with no flexibility. On this forum we see it all the time. For example there is a family emergency right before the 3 year mark and the family doesn’t move. If reported they can’t say we didn’t move for 3 years due to a family emergency. There will certainly be some leniency when there have been flight restrictions and people are in self-isolation but a bad economy will not be a reason not be an H&C reason why you couldn’t move after 3+ years. That is a personal choice. The person could have relocated in the past 3 years when the economy was good. if you are reported for not meeting your RO that could lead to losing your PR and reapplying if necessary.

 

[armoured]

FYI, it appears that no formal leniency in regards to the residency obligation will be granted for the time being

Going out on a limb, I would not read too much into this and pay careful attention to @dpenabill 's comments instead. It may not be realistic to expect a formal policy, and lawyers are just warning PRs well in advance (as they should) not to rely on the possibility.

IRCC is required to take into consideration H&C matters; covid issues will qualify to some degree, but it probably won't be universal or simple. It is too early anyway for them to consider some 'formal' leniency since the crisis is not yet over. But if they decide to do so, expect it to be limited in scope (e.g. we won't look in detail at RO non-compliance of less than three months, but ONLY for PRs returning to Canada within a few months of travel restrictions ending [read 'normality']). And even then, I would bet against it being a 'formal' leniency policy, but rather an internal guideline - that probably would be about what normal H&C consideration would give in such circumstances (and to avoid a wave of appeals).

The upshot that I'm trying to get at here: those in a truly short-term surprise situation with RO somewhat close to compliance (e.g. we booked tickets and were only a bit short of RO and then got stuck in home country, but left for Canada as soon as flights were available) probably have a decent chance of leniency, 'formal' policy or not. Those that want to rely on it for future leniency (e.g. get called out for non-compliance in 2022/23 and want to 'reach back' to the 2020 crisis) are taking their chances and might fail.

Which really boils down to @dpenabill's well thought out mantras, adapted/changed only a bit for covid: the sooner one gets to and remains in Canada, the better the chances, all genuine H&C matters will be considered but may or may not be decisive - covid won't be a universal "get out of RO compliance" card.

Covid-related travel issues likely will be considered 'genuine' and given significant weight if recent, but even if some kind of formal policy were to be issued, it probably won't amount to universal absolution of failure to comply. Or if you prefer, such a policy would possibly not be more than recognition that appeals on H&C grounds for covid-related delays (in near term) would have a higher likelihood of being accepted (and the policy or guideline would exist to reduce unnecessary burden on system - not to forgive RO non-compliance).

Just my opinion.

 

[dpenabill]

. . . . mantras, adapted/changed only a bit for covid: the sooner one gets to and remains in Canada, the better the chances, all genuine H&C matters will be considered but may or may not be decisive - covid won't be a universal "get out of RO compliance" card.

If only I could say such things so directly and succinctly.

Unfortunately I have a deeply entrenched penchant for using way too many words, and that goes back even before I dug deep into 19th Century philosophy and literature, never to be brief again. Then I strayed into the dark wood of jurisprudence. It has all been down hill and into a spiraling mire of verbosity ever since. Sorry.

Otherwise you have captured the situation well, but the comments offered by @Besram, @Bs65 and @canuck78 are also on point and well taken. In particular, @Bs65 emphasizing "the residency obligation of 2 years out of every 5 is a generous obligation to meet," recognizes the dominant outside parameter for evaluating whether H&C reasons justify keeping PR status. Regarding which you added the exclamation mark, noting that EVEN IF there is a formal policy, it will most likely offer only limited relief.

After all, even if the travel restrictions last four or six months:

-- a PR does not breach the Residency Obligation unless the PR has been outside Canada for more than THREE YEARS in the previous five, so for anyone in breach of the RO there is a lot more to explaining reasons for not coming to Canada sooner than just the pandemic travel restrictions​

-- if a Canadian PR was living abroad when this crisis unfolded, the reasons why the PR was living abroad loom far larger in the H&C calculus than can be explained by a brief period of travel restrictions​

-- if a Canadian PR goes on living abroad after travel restrictions are lifted, that tends to negate any explanation based on not returning to Canada sooner because of the travel restrictions​

Beyond that, we cannot reliably forecast the trajectory of this crisis as yet, let alone map what is anywhere near likely in its wake. We've a long way to go yet. A lot to learn. A lot to figure out. Not sure about the rest of you, but we are still hunkered down, still sheltering-in-place (with extra-caution since my wife and I are among those especially vulnerable to severe complications, given our age and other factors), and still rather unsure when we might begin venturing out except when absolutely necessary.

Stay well.