Thank you
@dpenabill for your kind comments. I should note that I do not have deep knowledge of the subject, and indeed only read most of this thread today. Some thoughts (for what they are worth) after reading a bit more, including skimming some of the decisions rendered.
1) In terms of the transparency and clarity that PRs would like to see: I'm genuinely disturbed by the apparent contradiction between the language in ENF23 and the actual application (albeit in sporadic decisions), i.e. ENF23 states "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." (My emphasis). This language is quite clear and simple and if it does not reflect actual application by IRCC staff or IAD decision-makers of how they will approach the question (and it clearly does not, at least not consistently), it is a major problem and can lead to arbitrary differences in ways cases are treated.
2) Potential changes: those advocating changes should, however, be aware that changes may not be the ones they desire, or in other words, 'be careful what you wish for.' The most simple change to this from IRCC/government perspective would be either to remove this language, to tighten it, or to make explicit that examining officers should apply judgment when determining whether to give 'credit' in the context of the factual elements of a particular case (likely considering the intent of the law). Or potentially make explicit that officers should make a determination based on who-accompanies-whom and disallow such credit in cases where the PR is not accompanying a spouse.
As I noted in that other thread, I am skeptical that government/parliament would undertake a significant review of this policy: the actual number of such cases appears to be relatively small, and given the difficulties in precisely describing the limits of this policy, it is not clear that it would actually resolve that high a proportion of such cases, nor actually reduce the administrative burden (and costs). At present, it seems to come up most (based on the IAD cases) where someone considers there's some 'abuse' of the intent (note: not using abuse here in any legal sense).
In addition, since these are spousal cases, most such PRs who lose would have the option of re-applying for permanent residency anew under sponsorship. (This obviously would be an issue for those that divorce, and for all involves some extra cost and inconvenience, including potentially long processing times)
3) The actual cases: as noted, I've only skimmed some of the cases cited, and certainly do not have the information / data to compare to previous ones or note trends. My
impression, however, is that when one looks at the actual cases that led to IAD decisions - most of them are not-even-close. (In my personal opinion only).
a) The dominant thread in most of these cases is the following scenario: PR gets status in Canada; either spends very little time in Canada or spends several years but then subsequently departs; and
effectively returns to home country and continues previous life. Spouse and children reside in Canada some of the time or not at all, sometimes with the spouse already a Canadian citizen, in other cases the spouse remaining in Canada long enough to obtain Canadian citizenship. Often the couple seems to have permanently (re)-settled in what was (often) the country of origin in the first place.
Whether or not this would raise suspicions regarding 'gaming' the system or simply seen as not respecting the intent of the law, the appearance is that the PR has not in fact 'settled' in Canada at all or really changed their life much from prior to becoming a PR - or just out and out left Canada. And of course, the two-in-five residency obligation is to some degree already designed to allow PRs considerable room to transition to full-time settlement in Canada (or indeed to partially reside in home country on an ongoing basis as long as enough time in Canada). There is room for a discussion, of course, of whether it is fair for IRCC to evaluate differently 'home country' returns differently than some third country - but I can also understand the logic that the two-in-five RO already exists to provide for such circumstances. And again, many of these cases do not appear to be even close in terms of the facts.
[I do not mean to minimise the struggles with making a living in a new country or economic or importance of family ties "back home" - esp in covid times. But those issues exist for all immigrants, and the 'accompanying Canadian citizen' rules
seem to serve as an additional RO buffer for some, rather than anything resembling the initial legislative intent.]
b) A less frequent scenario seems to be 'immigrated to Canada, but settled in USA.' Let's call this the trans-migration or stepping stone problem. I don't have deep thoughts on this except to note that we can/should expect that this will be an ongoing issue, since the US immigration system - H-1b visas in particular - in certain circumstances encourages temporary/employment immigration without a clear and straight path to permanent status. This is where my knowledge of US immigration ends, but let's just say that Canadian immigration is not designed to be a backup, and there will always be some issues here (varying over time with changes to US immigration policy). Those that want to retain Canadian PR status may simply have to decide at some point to
reside in Canada, even if professional opportunities/remuneration are lower.
4) Other factors (ties to Canada, credibility, time away all matter): you have described this well here and in other threads. I described this in simple terms as "not even close" but clearly when these decisions get to IAD, they are considering these other factors as well, not just who-accompanies-whom. And the lack of ties to Canada and/or time out of Canada seem to loom large in these decisions. Again, the original intent - which it would seem both examining officers and IAD have in mind - is that "PR accompanies Canadian citizen" implies quite strongly that this was to be
temporary. (Without getting hyper-textual, to me 'accompany' does imply this, as opposed to PR and citizen
settle in foreign country - permanently). So PRs/citizens travelling together to work/reside abroad for two years is clearly different than four years is different from ten or twenty years.
I would also
expect that to some degree the 'home bias' issue might influence decisions as well. A PR/citizen couple going to a third country for a time-limited assignment
may get somewhat less scrutiny. (That said it is hard to say whether 'home bias' cases are more frequent in the IAD decisions because that's the most frequent type of case or because IRCC staff are actually looking at these cases differently).
5) Practical advice: Canada does not have and likely never will have a pre-approval process, and hence there is no way to get 100% certainty in advance that who-accompanies-whom will not matter in future. Hence, as with the residency obligation in general, there are only increasing levels of risk - that can be managed somewhat. These are choices.
From low level of risk to higher (note this does not account for all scenarios - and clearly this MAY not be possible for all, but may help for those looking for more certainty about PR status):
i) First, and most simply: avoid having the formal or even informal consideration of "days accompanying citizen-spouse" ever be made. IRCC cannot deny such days if they are not needed to meet the RO; comply with the residency obligation in the first place,
without calculation of days-accompanying.
ii) Up to the five-year anniversary of first landing/PR card expiry: PR can board commercial transport and arrive at a port of entry for 'informal' examination, possibly referred to secondary. As with all PRs close to or well out of compliance, there is at least the chance - and in some cases the probability - that POE examining officers will decide not to start the 44(1) process or file a formal report. They may accept (without examining in detail) that the PR accompanied the citizen - or not care about that determination based on the
prima facie evidence that the PR and citizen are returning (by dint of having arrived at the border). They might give a warning, or comment, but doesn't matter if they don't start the formal process.
And of course, should it go to formal examination/determination at this stage - RO compliance in practice is not entirely binary - being
more out of compliance is clearly treated differently than
less out of compliance. Having arrived back in Canada to
settle will likely be considered favourably.
iii) Formal examination: the number of points when
formal consideration of who-accompanies-whom is actually somewhat limited - applying for a PRTD or a new PR card, where the PR does not have the physical-presence days without receiving 'credit' for the days-accompanying. In most cases, this would seem to mean being examined
while abroad (or less frequently in Canada but possibly transiting, for example).
But, this is where the uncertainty is and the risk higher.
@dpenabill has documented well the cases where who-accompanies-whom has been considered, and I don't have much to add. It seems they are looking more at sum-of-parts and context and intent, and especially credibility, and those have been covered already.
