PR Renewal Residency obligation not fulfilled

[KRM67]

I received my PR in 2009 and landed in Canada in 2010 and stayed for over a month. At the end of 2012 I came back to Canada with my family to finally settle there, I was working part time for an overseas company and also started working in Canada in last quarter of 2013 initially on part time and then fulltime basis. My part time overseas work required me to visit the job location occasionally. In 2014 I had called my mother to Canada on parent super visa and also bought a house on mortgage.

In March 2015 my mother had a stroke and after initial treatment in Canada, I accompanied her back to India for rehabilitation. My mother lost speech and was fully paralyzed on the right side due to the stroke and I knew it was going to be a long road to rehabilitation. I stayed with her through 2015 during this period my PR expired and in January I applied for Travel Document which was initially refused but later granted on appeal. I made alternative arrangements with my sisters and other relatives to take care of my mom but it was a hassle as no body really could dedicate full time and I had to periodically go back, so in beginning of 2017 I decided to go back to the overseas company as full time as in that country I would easily be able to take my mother along and I would also get affordable care takers. She stayed with me through out and in May 2020 she passed away.

Before leaving I had applied for renewal of my PR as it was due and I had just about completed by residency obligation. The PR was not issued until I was back in Canada and in August 2016, we all received our new PR cards. Since death of my mother I want to return to Canada but COVID and economic situation in Canada are making me hesitate. My PR is now expiring in August this year and I want to understand how I can apply for PR renewal on Humanitarian and Compassionate grounds. The other relevant details are as under:

1) My wife and children have continued to stay in Canada since November 2012 and since 2017 are citizens of Canada.
2) My wife stayed with me for about an year from July 2018 to July 2019 at the overseas location. (Will these days count towards residency obligation?)
3) I have been paying taxes as resident since 2012 on my global income due to residential ties.
4) I own two properties on mortgage in Canada
5) I have stayed physically in Canada for about 313 days in the past 5 years.

Thanks in advance for the reply

 

[armoured]

Sorry for your loss.

A question: is your intention to return to Canada (i.e. relatively soon) and remain for the reasonably foreseeable future? Or do you expect you will have to travel much?

 

[KRM67]

Thanks,

My intention is to return to Canada within next 2-3 months and remain for the foreseeable future, I will travel occasionally but would be max 2-3 month outside Canada per year.

 

[armoured]

My intention is to return to Canada within next 2-3 months and remain for the foreseeable future, I will travel occasionally but would be max 2-3 month outside Canada per year.

Okay. The issue (as I see it) is that occasional travel may be difficult and/or risky until you have residency obligation settled.

If you return before your card expires, you are a resident and will be let in to be able to remain with your family - but they may start the process of revoking your PR status. (I'm not good at the precise terminology, 44(1) report, etc).

You return and at the border you are questioned about your residency obligation. You share openly and clearly your H&C issues, delay returning due to covid since your mother's death, and that your spouse 'accompanied you' (resided with you) for part of that time. You note that you've maintained a residence in Canada, your spouse and children are there, you are established in Canada despite your absence. One of two things happens:

1) You are let through with basically a warning to be careful about your RO status.

2) They write up a formal report and start the process - someone else will look at this (on their side), they could decide not to proceed with that, or they do and you have a chance to appeal. (Long process, during which you are at least in Canada) You'd document all of the H&C factors, your time with your spouse abroad, your ties to Canada, etc.

There is no way to say how this process at border will go. Or, of course, whether you would be successful on appeal.

While this is too complex to give anything like reliable advice - if your priority is to be in Canada with your family, you may be better off returning soon and 'chancing it' (hoping you will be let in without formal report for non-compliance is started). If you are reported, you will still be with your family (and physically being with your family is a plus during later consideration on appeal, etc).

There are a lot of issues that complicate matters - a bit of discussion below - but I would think you'll be in a better position to consider options, get advice (incl legal if needed), decide how to proceed and potentially find solutions while in Canada.

At some point, if that becomes unmanageable or even lose your PR status, you could renounce your PR status and re-apply for sponsorship.

Returning to the travel in future issue: if you are let in by 1) above, you'll mostly need to remain in Canada until in compliance with RO and will have to replace your card (which won't be easy to do until in compliance with RO).

If you are let in - by my calcs you may qualify for the RO - IF they indeed do credit you for the time your wife was with you (and you will get credit for any days in Canada before August 2016 as well, if you have not included those - it's a five year rolling RO so eg if you arrive in Canada in April, days in Canada between April-August 2016 are included).

BUT: it is entirely unclear whether you will be given credit for the time your wife resided with you abroad. (There's a few other threads on this issue - short form, she did not travel at the same time as you and it looks more like she just joined you abroad - but this is a tricky question).

Ideally, you would NOT request formal adjudication (credit) of those days-accompanying; you might be denied them. (If you are reported you should by all means try to get credit for them, though). This formal process might take place if, for example, you applied for a PR card 'early' (before you'd come into compliance with RO without taking account of the time abroad with your spouse.) This might be a fairly long time as it appears some of your time in Canada was earlier in the period after getting your PR card renewed (you'd be losing some days as well as gaining).

But again, I think your options are better if in Canada in the first place, i.e. return early.

 

[dpenabill]

My PR is now expiring in August this year and I want to understand how I can apply for PR renewal on Humanitarian and Compassionate grounds.

You have been around that block before, so you can probably apprehend what the deal is and grasp the score as well as anyone.

Counting all factors in your favour, at best you are in breach of the Residency Obligation. This includes counting the days your spouse was living with you abroad. Which, since you did not accompany her abroad, and very obviously so, is at least in question. But does not matter since counting even those days you come up short. That is, you are in breach of the RO, and thus the future of your PR status depends on the H&C case . . . albeit you at least have (probably) the backup option of qualifying for spousal sponsored PR.

For purposes of the H&C analysis, everything counts. It is how much, with what weight, in which direction, that matters. Lots and lots of uncertainties and unknowns in that calculation. Trying to forecast a complicated H&C case like this is little more than a guessing game.

Given the overall history, odds are bad enough to suggest your best shot is to travel to Canada, to STAY, before your PR card expires. Noting that odds of being issued a PR Travel Document are, it appears, NOT good.

How it goes upon your arrival at the PoE will be a big clue about whether you have a decent shot at keeping your PR status or will need to resort to getting sponsored for a new grant of PR status. Not much to be gained by speculating how that will go . . . other than to note it can go one of two ways:

-- you are examined about RO compliance and issued 44(1) Report for Inadmissibility based on breach of RO, and issued Departure Order; or​

​

-- you are allowed to enter Canada without being Reported (whether waived through without much of a RO compliance examination, or following questions about RO compliance)​

If upon arrival you are Reported and issued a Departure Order, you still get to enter and can appeal, and if you stay pending the appeal all those other H&C factors might give you a decent shot at keeping PR status. After all, if you stay then, and it appears you are finally settling down in Canada, the government might lean in favour of not forcing you and your family to go through the sponsorship process. And again there is the spousal sponsorship backup.

If upon arrival you are NOT Reported, but allowed to enter without being issued a 44(1) Report for Inadmissibility, try to get things like drivers license and health care coverage while your PR card is still valid (although in some provinces, like Ontario, a PR can still use an expired PR card to do this) and then avoid travel abroad, and do not apply for a new PR card, for the next TWO years (perhaps something less depending on what days you have been in Canada in last four or so years . . . noting that you will need to wait at least a year, so any days in Canada more than four years old now will be more than five years ago by then and not count).

Your PR status is valid so long as there has not been a formal decision to terminate it . . . meaning you do not need a valid PR card to keep your status. You just need to avoid a transaction with CBSA (like entering Canada) or IRCC (like applying for a new PR card) which would involve an examination of your RO compliance.

Otherwise, see a reputable and experienced immigration lawyer (my suggestion is to avoid consultants).

 

[armoured]

Sorry, a correction - brainfart on my part - you likely are NOT in compliance with RO, even if you were given credit for the time with your spouse abroad. My mistake.

I'm fully in agreement with @dpenabill - the weakest part of your situation is that travel abroad until you are fully back in RO compliance and renew your card simply may not be realistic. The only relatively certain way to regularise your situation is to return, and stay, and if at all possible, NOT count on getting those days with your spouse abroad credited towards your RO.

You'll have to decide how critical that is and how to proceed. Still, your options are likely more numerous and better if you return to Canada sooner rather than later.

 

[KRM67]

Hi,

Thanks to you both @dpenabill and @armoured for a very detailed response. I somehow thought that renewal application of PR on H&C means that they will issue me a new PR card if they accept my H&C application. But it seems that is not the case, after reading your opinion I now understand that H&C acceptance means they will not issue departure order so I can continue to stay in Canada without the ability to travel overseas.

As regards spousal sponsorship, is it a good option or I should use it only as a backup.

Thanks again,

 

[armoured]

Hi,

Thanks to you both @dpenabill and @armoured for a very detailed response. I somehow thought that renewal application of PR on H&C means that they will issue me a new PR card if they accept my H&C application. But it seems that is not the case, after reading your opinion I now understand that H&C acceptance means they will not issue departure order so I can continue to stay in Canada without the ability to travel overseas.

As regards spousal sponsorship, is it a good option or I should use it only as a backup.

Thanks again,

I know very little of the H&C process you refer to, so won't comment.

All options have some drawbacks, up to you to decide. At minimum having it as a backup option is an advantage.

 

[KRM67]

Thanks and appreciate the time and effort you guys put in to answers queries of so many people. I am thinking of consulting an immigration lawyer to understand the H&C process better. If I can retain my ability to travel for short periods it will be fantastic as otherwise I would not be able to continue working with the overseas company as they want that I should be able to travel whenever there is a need. Hoping that somehow everything will work out.

Thanks a lot.

 

[armoured]

Good luck. If travel is essential, speaking to a lawyer may be best.

 

[dpenabill]

I somehow thought that renewal application of PR on H&C means that they will issue me a new PR card if they accept my H&C application. But it seems that is not the case, after reading your opinion I now understand that H&C acceptance means they will not issue departure order so I can continue to stay in Canada without the ability to travel overseas.

As regards spousal sponsorship, is it a good option or I should use it only as a backup.

You can make an application for a new PR card even if you have not complied with the PR Residency Obligation. Since you are in breach of the RO, however, odds are very high that at the very least processing that application will be non-routine. Or, it could result in being issued a Removal Order based on RO breach. But yes, despite your being in breach of the RO, IRCC can decide to issue a new PR card based on H&C reasons.

That is, you are correct, that it is possible to apply for and be issued a new PR card for H&C reasons.

I did not address this for multiple reasons. As I previously noted, chance you can keep your PR status (getting new PR via sponsorship is separate matter) depends mostly on traveling to Canada while you still have a valid PR card, and then how it goes upon arrival at the PoE will be a big, big clue about how good your chances are.

There are other way less probable possibilities, such as, after your PR card expires, applying for PR Travel Document relying on H&C grounds. If that is granted, for example, then you can also probably apply for and be issued a new PR card (H&C decision for PR TD is not absolutely binding when you apply for a new PR card, but close). The probability of this succeeding, however, that is the chance of being issued a PR TD based on H&C grounds, is low enough it is probably not an option worth considering . . . unless you need to delay coming to Canada past the expiration date of your PR card.

In any event, again, your next step at this stage is to return to Canada before the PR card expires. And how it goes when you arrive will largely tell the tale. Either way, however, whether you are issued a Departure Order or allowed into Canada without being Reported, the SAFEST approach then, if keeping PR status is a priority, is to STAY . . . not leave and not apply for a new PR card UNTIL you have been IN Canada for at least 730 days within the preceding five years, or at least are close to that before you apply for a new PR card.

OTHERWISE . . . as I previously noted . . . OTHERWISE "see a reputable and experienced immigration lawyer."

Leading to . . .

I am thinking of consulting an immigration lawyer to understand the H&C process better. If I can retain my ability to travel for short periods it will be fantastic as otherwise I would not be able to continue working with the overseas company as they want that I should be able to travel whenever there is a need. Hoping that somehow everything will work out.

Yep. One of the "otherwise" considerations is whether it is practical or even feasible to stay put in Canada until you are in compliance with the RO. You indicate this is at the least not optimal and perhaps not even practically realistic. So, yes, in this situation you will likely be relying on giving up PR status and applying again as a sponsored spouse . . . OR, going to a qualified immigration lawyer to determine what other options you have, including the possibility of applying for a new PR card based on H&C reasons.

But it gets complicated. Especially since the odds are high that a PR card application will, at best, get bogged down in non-routine processing, which would make it difficult for you to travel abroad in the meantime.

One irony, and example of the various complications, is that if you are issued a Departure or Removal Order upon arrival, and you appeal, you can apply for and have a good chance you will be issued a one-year PR card. So you could come and go while the appeal is pending, and while your best chance of the appeal resulting in a favourable outcome depends on staying in Canada, if you mostly stay in Canada pending the appeal that could still give you a decent shot. (With the fall-back sponsorship option if necessary.)

In contrast, last I knew, if you are not Reported and issued a Departure Order, and you then apply for a new PR card anyway, you could not get the one-year PR card pending that application. So if you leave Canada, you will need a PR TD (or travel via the states and come to Canada across a land border), putting you back into a situation likely to result in having to appeal anyway.

Again, this is just ONE example of various complications if coming and staying is not in the cards . . . either pending an appeal if Reported at the PoE, or otherwise waiting to get into RO compliance if you are not Reported at the PoE.

And I also glossed over the possibility that you are issued a 44(1) Report at the PoE but then, upon presenting your H&C explanations, the second officer (technically the "Minister's Delegate," but in practice just another CBSA officer) could decide to NOT issue a Departure Order. This would be a favourable H&C decision that would also indicate good odds of being issued a new PR card for those H&C reasons. But I glossed over this because it is among the less likely scenarios and, moreover, it falls under the category of learning how things are going to go upon your arrival at the PoE.

That is, basically there are many uncertainties, but the situation will be clearer when you actually come and find out what happens at the PoE upon your arrival . . . and make decisions about where to go from there, depending on what happened at the PoE.

 

[cinvest2021]

I received my PR in 2009 and landed in Canada in 2010 and stayed for over a month. At the end of 2012 I came back to Canada with my family to finally settle there, I was working part time for an overseas company and also started working in Canada in last quarter of 2013 initially on part time and then fulltime basis. My part time overseas work required me to visit the job location occasionally. In 2014 I had called my mother to Canada on parent super visa and also bought a house on mortgage.

In March 2015 my mother had a stroke and after initial treatment in Canada, I accompanied her back to India for rehabilitation. My mother lost speech and was fully paralyzed on the right side due to the stroke and I knew it was going to be a long road to rehabilitation. I stayed with her through 2015 during this period my PR expired and in January I applied for Travel Document which was initially refused but later granted on appeal. I made alternative arrangements with my sisters and other relatives to take care of my mom but it was a hassle as no body really could dedicate full time and I had to periodically go back, so in beginning of 2017 I decided to go back to the overseas company as full time as in that country I would easily be able to take my mother along and I would also get affordable care takers. She stayed with me through out and in May 2020 she passed away.

Before leaving I had applied for renewal of my PR as it was due and I had just about completed by residency obligation. The PR was not issued until I was back in Canada and in August 2016, we all received our new PR cards. Since death of my mother I want to return to Canada but COVID and economic situation in Canada are making me hesitate. My PR is now expiring in August this year and I want to understand how I can apply for PR renewal on Humanitarian and Compassionate grounds. The other relevant details are as under:

1) My wife and children have continued to stay in Canada since November 2012 and since 2017 are citizens of Canada.
2) My wife stayed with me for about an year from July 2018 to July 2019 at the overseas location. (Will these days count towards residency obligation?)
3) I have been paying taxes as resident since 2012 on my global income due to residential ties.
4) I own two properties on mortgage in Canada
5) I have stayed physically in Canada for about 313 days in the past 5 years.

Thanks in advance for the reply

Sorry for your loss and on a personal note would like to salute what you did with your mother.

I see spousal sponsorship was mentioned in the thread.
Would it be not an option to renounce PR, travel with a visa while spousal sponsorship is started and would be ongoing?

Also would like to mention that as long as there is quarantine in place it would very demanding to travel back and forth during pandemic period.
You wont be able to see your relative unless they quarantine with you, and if there are children like you mention, it would be problematic.

 

[canuck78]

Were you compliant with your RO for the first PR renewal? It sounds as though you may not have been. Think the big issue with your H&C reason is that you moved your mother to your job in another country because caregivers would be inexpensive and you returned to work. You could have paid for caregiving for your mother in her home country and your family could have visited her regularly and you could visit her on vacation. You weren’t actually doing the caregiving. Obviously not up to me.

 

[KRM67]

Were you compliant with your RO for the first PR renewal? It sounds as though you may not have been. Think the big issue with your H&C reason is that you moved your mother to your job in another country because caregivers would be inexpensive and you returned to work. You could have paid for caregiving for your mother in her home country and your family could have visited her regularly and you could visit her on vacation. You weren’t actually doing the caregiving. Obviously not up to me.

Hi,

I was compliant with RO for the first PR renewal, I had about 744 days physical presence when I applied. As regards care giving to mother, initially I did move to our home country and she was there was about 3 years, where me with help of family members, care givers and therapists did the caregiving and worked on rehabilitating her. For the first 2 years I worked part time from home for the overseas company and part time from home/office for one Canadian company, but travelling and managing caregiving of mother with other family members was becoming problematic and since I could not bring my mother to Canada, I left the Canadian company and went to the overseas company fulltime at their location and took my mother there later once I was settled down.

As regards not actually caregiving, I understand it can interpreted that way, but the fact was my mother had lost her speech and also ability to communicate with signs or writing down, so someone had to be around not only to ensure that care giver was taking good care of her, but also that she would feel more happy, secure and comfortable if a family member was around.

 

[KRM67]

Sorry for your loss and on a personal note would like to salute what you did with your mother.

I see spousal sponsorship was mentioned in the thread.
Would it be not an option to renounce PR, travel with a visa while spousal sponsorship is started and would be ongoing?

Also would like to mention that as long as there is quarantine in place it would very demanding to travel back and forth during pandemic period.
You wont be able to see your relative unless they quarantine with you, and if there are children like you mention, it would be problematic.

Thank you for your kind words.

As regards renouncing the PR and taking spousal sponsorship route, I have thought about this and discussed with few people and generally the opinion is that it will be too much hassle again, so it is better to keep it as last option.

I have returned to Canada this week while my PR is still valid. The CBSA officer who took my interview at the POE decided not to report and also gave the same opinion that better to continue with existing PR rather than going to spousal sponsorship as that would be the easier option.