PR holder living abroad

[tatoon]

Hi,

I have Canadian PR and live abroad.
By the time my PR expires (5 years) I won't have met the 2 years residency requirement.

I live abroad with my wife, Canadian citizen.

The CIC website says the following regarding living abroad with a Canadian spouse: "Your time outside of Canada may count toward your permanent resident status"

How do I know if my time abroad while living with my wife counts? The CIC says "may", what does it depend on?

Thanks.

 

[canuck78]

Hi,

I have Canadian PR and live abroad.
By the time my PR expires (5 years) I won't have met the 2 years residency requirement.

I live abroad with my wife, Canadian citizen.

The CIC website says the following regarding living abroad with a Canadian spouse: "Your time outside of Canada may count toward your permanent resident status"

How do I know if my time abroad while living with my wife counts? The CIC says "may", what does it depend on?

Thanks.

Did you ever spend time in Canada with your wife after PR and how long. Did you work during that time? Was your move to another country related to her work?

 

[tatoon]

Did you ever spend time in Canada with your wife after PR and how long. Did you work during that time? Was your move to another country related to her work?

Sorry for the late answer.

I have lived in Canada with her for over a year. I didn't work in Canada and we left because of my work.

 

[mashulia_26]

Sorry for the late answer.

I have lived in Canada with her for over a year. I didn't work in Canada and we left because of my work.

Your time outside Canada wont be counted towards your residency obligations since she is the one who is accompanying you.

 

[dpenabill]

Hi,

I have Canadian PR and live abroad.
By the time my PR expires (5 years) I won't have met the 2 years residency requirement.

I live abroad with my wife, Canadian citizen.

The CIC website says the following regarding living abroad with a Canadian spouse: "Your time outside of Canada may count toward your permanent resident status"

How do I know if my time abroad while living with my wife counts? The CIC says "may", what does it depend on?

Thanks.

No one here can reliably say what IRCC or CBSA will decide in the situation you describe in the future. For one thing, a huge thing, you are asking about decision-making YEARS in the future. That decision making, then, will depend in significant part on facts that occur between now and then, and it will depend on future developments in Canadian immigration policies and practices, and could be subject to changes in the rules themselves, including the statutory law governing the PR Residency Obligation.

Generally, until recently, and quite likely still, where a PR and citizen spouse were living together IN Canada, in an established residence IN Canada, and the couple moved abroad either together or in relative close proximity (time-wise) to one another, the PR would be given credit toward RO compliance so long as the couple was living together abroad.

What @mashulia_26 references, overstating the case by a lot, is some increased attention given to who-accompanied-whom, given that the applicable law, Section 28(2)(a)(ii) IRPA (should link), specifically states that the credit applies when a PR is accompanying a Canadian citizen spouse. As I noted, for two decades with only very isolated exceptions IRCC (CIC), the IRB IAD, and the Federal Court, has construed this to mean the PR gets credit for days the couple are living together without considering who-accompanied-whom.

The exceptions go back more than a decade, but more such cases have been seen in the last several years. That is, there are some cases in which IRCC or CBSA denied credit based on a determination that it was the citizen accompanying the PR abroad, rather than the PR accompanying the citizen, and SOME of these decisions have been upheld by the IAD.

What circumstances tend to trigger a who-accompanied-whom based decision is a big and complex subject. This subject is addressed in depth and at length in a topic titled: "Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE" which is here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

There is more than a little uncertainty about how this issue will be treated in the future and especially so in any cases where it is more apparent the citizen is accompanying the PR abroad. My sense is that the overall extent of the couple's ongoing Canadian ties could matter, and in that regard the overall length of time abroad might matter. See discussion in the more in-depth topic.

For now, the best we can offer is that you will probably be OK, at least the first time around, BUT there is a RISK otherwise. Any more definite forecast should not be trusted.

 

[thevisawhisperer]

There is NO uncertainty and it does NOT matter who is accompanying whom. Every day spent outside Canada in the company of a Canadian citizen spouse counts toward the PR residency obligation.

 

[dpenabill]

There is NO uncertainty and it does NOT matter who is accompanying whom. Every day spent outside Canada in the company of a Canadian citizen spouse counts toward the PR residency obligation.

WRONG; NOT true.

See numerous official accounts of actual cases cited in the discussion here:
"Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE" which is here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

Just as one example, among many, in denying a PR credit toward compliance with the Residency Obligation for time the PR was in the company of the PR's spouse, a Canadian citizen, in the Khan v Canada, 2015 CanLII 99397 decision, see http://canlii.ca/t/grz8t , the Panel stated:

"The wording of section 28(2)(a)(ii) of IRPA clearly contemplates that it is the Appellant who is “outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent” and not the other way around."​

Additional samples of ACTUAL cases as reported in OFFICIALLY published decisions in which it is stated that who-accompanied-whom matters or in which the PR was denied credit toward compliance with the Residency Obligation for time the PR was in the company of the PR's spouse, a Canadian citizen:

Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r

Kreidy v Canada, 2017 CanLII 87454 see http://canlii.ca/t/hphj6

There are also several additional cases in which the Minister of IRCC clearly and apparently emphatically argues that who-accompanied-whom matters and determines if the credit is available. Again, see the numerous citations to actual authority in the topic linked above.

 

[thevisawhisperer]

Sorry. I stand by my word:

Situation 1. Accompanying a Canadian citizen outside Canada
You may count each day you accompanied a Canadian citizen outside Canada as long as this person is your spouse, common-law partner or parent (if you were a child under 19 years of age before October 24, 2017 or under 22 years of age after October 24, 2017).
Proof needed
You must provide supporting documents to prove that:

• The person you are accompanying is a Canadian citizen; and
• You are the spouse, common-law partner or child of that person.

accompanying abroad (that is, ordinarily residing with) a spouse or common-law partner or
parent who is a Canadian citizen;

Accompanying outside Canada

(4) For the purposes of subparagraphs 28(2)(a)(ii) and (iv) of the Act and this section, a permanent resident is accompanying outside Canada a Canadian citizen or another permanent resident — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen or the other permanent resident.

Louis v Canada (Citizenship and Immigration), 2018 CanLII 133380 (CA IRB), <http://canlii.ca/t/hxz44>, retrieved on 2020-06-13

[36] The panel endorses the reasons given in Mustafa regarding the use of CIC’s ENF-23 policy as an interpretive tool:

Although I am not bound by CIC’s policy statements, I find the statement in the Guidelines from CIC to be helpful in my examination of the provisions, especially when considered in conjunction with the legislation itself and the Legislative History referred to earlier. The Guideline suggests that the definition of accompanying is the one where two things exist in space and time and it does not matter which party goes somewhere first.

[37] Lastly, the Minister’s representative opposes the appeal on the grounds that [translation] “surely the intention of Parliament was not to allow people who have permanent resident status to leave Canada and settle abroad and to allow those people who marry or are in a common‑law relationship with a citizen to maintain or regain a status that would otherwise have been lost following an examination.”

[38] The panel does not agree with the respondent’s interpretation. It is conceded that the effect of the application of section 28 of the Act and subsection 61(4) of the Regulations may seem contradictory to one of the purposes of the Act, namely the establishment of permanent residents in Canada. Nevertheless, an analysis of the legislative history of the Act and the finding that there is an exception to the residency obligation suggest that Parliament intended to grant citizens some flexibility in the manner of meeting their residency obligation. In other words, Parliament has provided for different ways for permanent residents to comply with their residency obligation. The same approach is adopted in Mustafa:

[19] However, the Minister’s counsel argues that if one follows this analysis, a PR could theoretically meet their residency obligation without ever setting foot in Canada, as long as the Canadian spouse ensured that they were “ordinarily resident” with the PR for 730 days in a five year period. The Minister’s counsel finds this to be contrary to the purposes of familial and social integration within Canada as outlined in the Act, and while I understand how this seems to be somewhat contradictory of concept of permanent residence, the evidence above from the Legislative history suggests that Parliament intended to provide some flexibility to citizens with respect to how these obligations can be met. I note as well that this exception is not extended to permanent residents, but only to citizens, suggesting that Parliament intended to safeguard relationship of citizens and PR’s who find themselves in this situation. The legislative context analysis suggests the approach pressed upon me by the appellant is the one Parliament intended.

[39] The panel is of the opinion that as of August 2013, the appellant and her common-law partner, a Canadian citizen, were in the same place at the same time and that they usually resided together in Haiti as set forth in subsection 61(4) of the Regulations.

[40] Added to the 619 days allowed by the Minister’s counsel are the days spent by the appellant with her Canadian common-law partner in Haiti during the five-year period from August 2013 to December 2014. It follows that the appellant met the residency obligation.

CONCLUSION

[41] The appeal is allowed in law.

 

[dpenabill]

Sorry. I stand by my word:

Sorry, stand by "your word" and be wrong as you like. But this forum needs to focus on accurate information not individual opinion.

There are OFFICIAL decisions going BOTH ways. There is NO doubt about this.

Technically there are three different approaches in the decisions, BUT the main difference in approaches is essentially bilateral, MOST decisions falling on the side that who-accompanied-whom does NOT matter (which is essentially the approach taken in the IAD decision you cite and link), but there are nonetheless NUMEROUS other decisions DENYING PRs credit based on a who-accompanied-whom analysis.

There is a big, big difference between what happens in some cases and what happens in other cases. Again, as noted, AND cited, there are numerous official decisions in which who-accompanied-whom mattered and resulted in the credit being denied.

YES, these are EXCEPTIONS. Some, however, are recent. See Gehrke v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124068 (CA IRB), http://canlii.ca/t/j4cms a decision made just this past August (August1, 2019)

I and OTHERS have cited and linked numerous actual cases in which credit was denied based on the who-accompanied-whom distinction. But if and when that might happen is complicated. It for sure happens.

It is simply wrong and misleading to assert that the reasoning applied by Linda Féquière, in the IAD decision you cite, will for sure be applied rather than, say, the reasoning by K. Dickenson in the IAD Gehrke decision. Noting that there are scores of cases in which the Minister's representative continues to argue the latter is the correct approach and against that applied by Linda Féquière, in the IAD decision you cite.

As I observed relative to the OP's query, they PROBABLY will be OK. But this is NOT certain. To assure the OP otherwise is unfair.

 

[thevisawhisperer]

I speak not from opinion, but from experience.

When submitting these applications, I took my guidance from IRCC operational guidelines, which states in manual ENF 23 Section 7.5:

7.5 Accompanying a Canadian citizen outside Canada

R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.

 

[Bs65]

Just to add that it is still important to keep as much proof as possible about residing abroad with a citizen. Not talking about why or what for but proof living together outside of Canada.

Also just a reminder that a PR card cannot be renewed from outside of Canada so if want to travel back will need a PRTD.

And of course accompanying outside of the country does not count towards a citizenshp application only residency obligation.

 

[dpenabill]

@thevisawhisperer

What is important to recognize about the who-accompanied-whom issue, for PRs needing RO credit for time spent abroad with their citizen spouse or common-law partner, is that the outcome is NOT certain in cases where it might appear the citizen was the one accompanying the PR abroad. Even if the outcome SHOULD be certain and favourably so. Rather, in practice, in fact, in SOME cases it is NOT. Rather, the outcome can vary. See the ACTUAL cases going the other way. There are many of them.

The approach you are referencing has been and still appears to be the USUAL approach, the approach applied in MOST cases.

But that is NOT how it actually goes in all the cases, in a significant number of cases that go the other way.

There is disagreement among the authorities making these decisions. So far that disagreement has not been addressed let alone resolved by the Federal Court let alone the Federal Court of Appeals (only the latter would establish binding precedent).

The difference in our views appears to be about claiming what will for-sure happen versus recognizing what can happen in some cases.

SUMMARY: it is a mistake to not recognize there are in fact different approaches to this issue, by the authorities who make these decisions, and sometimes, for some PRs, who-accompanied-whom can make a difference in whether they get credit toward RO compliance.

That is, if it is not clear the PR is the one accompanying the citizen spouse abroad, there is some RISK who-accompanied-whom can be considered in determining if RO credit is allowed. Any assertion to the contrary is misleading.

When submitting these applications, I took my guidance from IRCC operational guidelines, which states in manual ENF 23 Section 7.5:

ENF 23 is a source I have personally cited, quoted, and discussed many, many times over the course of many years. And which moreover is specifically discussed in depth in the topic where this subject is addressed at length, in a discussion that itself has spanned nearly two years. I am very well familiar with this Operational Manual. I have been quoting it for more than a decade. But I am also very well familiar with scores of cases which REJECT its approach. (And many others which make it clear that the Operational Manual is not binding but finding it persuasive as to this particular issue.)

But yes, sure, those provisions in ENF 23, in particular, are indeed a key indicator of what the likely approach is and will be in most cases. At least for now. Which in most cases means that as long as the couple are living together abroad ("ordinarily residing" together), the PR will get credit toward RO compliance for those periods of time.

BUT AGAIN THAT IS NOT HOW IT GOES IN ALL CASES. And that is NOT how it will for-sure go in the future.

Notwithstanding what it says in ENF 23, there are NUMEROUS actual cases in which decision-makers in IRCC(CIC), CBSA, the IRB IAD, have indeed considered who-accompanied-whom, and just for one isolated example, in the Gehrke case http://canlii.ca/t/j4cms there was an inquiry into the intent and purpose underlying why the PR and citizen spouse were abroad. (That is, in Gehrke the panel more or less acknowledged the PR moved abroad together with, and resided with, the citizen spouse BUT because the purpose for doing so was for the PR's purposes, not the citizen's, the panel denied credit -- note, this is the most extreme outcome of these kinds of cases I have so far seen, as this was a couple who had been together for many years IN Canada before going abroad TOGETHER; I got the impression some discriminatory influence may have been a factor.)

That is, sometimes who-accompanied-whom matters. And it is misleading to claim otherwise. It is really misleading to assure the OP there is no risk of a who-accompanied-whom analysis.

Especially in regards to decisions that will be made years from now given that it is clear that the Minister, at least through the Minister's representatives, have been consistently arguing (including in the Louis decision you cite and quote), for years now, that who-accompanied-whom does matter.

In this latter regard, in the PDIs which are being adopted to replace the Operational Manuals (like ENF 23), at least so far there is no hint that the credit is available to a PR ordinarily residing abroad with a citizen spouse, ONLY that it is available to a PR who is "accompanying outside Canada a Canadian citizen who is their spouse or common-law partner." This happens to be the same language relied on in the arguments pressed by the Minister's representative and the same as the language interpreted and applied in cases DENYING the credit if it was the citizen accompanying the PR.

That noted, in most cases, SO FAR, it still appears that the reasoning and approach you reference is still being applied. USUALLY. BUT again, NOT ALWAYS.

The trick (which to my knowledge no one has mastered) is to know if and when the other approach will apply, the approach in which the credit may be denied based on a who-accompanied-whom analysis. Regarding this, again, make no mistake, there are NUMEROUS actual cases in which PRs have been denied credit toward the RO based on a who-accompanied-whom analysis. That is reality.


Some additional sources:

Please realize I am NOT citing these sources as representative of how it will go for the OP or to assert that who-accompanied-whom will be for-sure considered for a PR relying on the accompanying a citizen spouse abroad credit.

I am citing these sources to illustrate that there are cases in which who-accompanied-whom is considered and can make a difference. At least SOME cases. As previously noted, the "trick" is to know if and when this approach might be applied. Discerning who is at RISK is complicated.

In contrast, for example, I could be citing many cases going the other way, going what I have described as the "usual" way, similar to the Louis case you cite. See In'Airat v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124093 (CA IRB), http://canlii.ca/t/j4cls for example, or cases that explicitly followed ENF 23 like Turken c Canada, 2016 CanLII 64004 (CA IRB), http://canlii.ca/t/gtw9d and Mustafa v Canada 2018 CanLII 47219 (CA IRB), http://canlii.ca/t/hs76z.

But again, the following cases illustrate that the USUAL approach is NOT always how it goes, so that those who might be affected are aware of the risk that who-accompanied-whom can matter:

Kirpal v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 130765 (CA IRB), http://canlii.ca/t/j5hmh
No credit given because citizen was accompanying the PR, not the PR accompanying the citizen; but H&C relief allowed

Haddadian v Canada (Citizenship and Immigration), 2019 CanLII 130720 (CA IRB), http://canlii.ca/t/j5hkm
No credit based on no temporal nexus in moving abroad (PR abroad was in common law relationship with a Canadian the PR met AFTER the PR was already abroad)

Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), http://canlii.ca/t/hst3d . . . specifically declining to follow the "not binding" guidelines in ENF 23, but rather persuaded by the Minister's representative who argued "the term 'accompanying' requires the appellant to follow his Canadian-citizen spouse and not the reverse."

Khan v Canada, 2015 CanLII 99397 see http://canlii.ca/t/grz8t "The time period after the Appellant’s spouse’s returned to Bangladesh in August 2010 cannot be calculated as days the Appellant spent “accompanying” his Canadian citizen spouse in Bangladesh. He lived there and she was there to be with him."

Khaira v Canada 2014 CanLII 95529 (CA IRB), http://canlii.ca/t/gksqq "this does not meet with the definition under section 28(2)(a)(ii), as the appellant’s wife went to India to accompany him rather than the claim that he was in India to accompany her"

As well as anecdotal reports in this forum: see, for example the report by @mhsaleh65 who was issued a Departure Order for failing to comply with the RO at a PoE; @mhsaleh65 stated "when I added the days of accompanying my wife outside Canada, the officer rejected that on the ground that she was accompanying me and not the other way" See https://www.canadavisa.com/canada-immigration-discussion-board/threads/departure-order.577134/#post-7154399


I have mentioned that there is, technically, a third approach, sometimes referred to as the "temporal nexus" question. See Caesar v Canada, 2014 CanLII 99165 http://canlii.ca/t/gnf7w for example.