Can my time abroad count toward my permanent resident status?

[explorer84]

Hi,



I am an 36 years old Indian male citizen working in UAE for last 5 years. I got my PR status approved on an individual basis through express entry in May 2018 and I did my soft landing in Canada on 1st Oct 2018 for 2 weeks and came back to UAE.

I met a Canadian citizen that time and married her in Jan 2019. We got officially married in India and have the Indian marriage certificate also for the same.

After marriage, my wife who is a Canadian citizen moved with me to the UAE from Feb 2019 and is working and living with me now.

We plan to live and work in UAE for the next 2 years atleast.

As per the Canadian immigration rules, I am aware that to retain my PR status I need to be physically in Canada for atleast 730 days out of the 5 years period from my PR status.

However, I understand from the Canadian Immigration website itself, that there are some exceptions to this rule, one of which is quote “ You travel with a spouse or common-law partner.

Your spouse or common-law partner needs to be: a Canadian citizen “ – unquote
https://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1466&top=10

So, if we follow this, my stay in UAE with my Canadian wife can be officially considered as my time abroad towards my permanent resident status. And i also understand that this duration will only be counted for keeping my PR status alive and not for the actual physical presence of 3 years required to attain citizenship.
Correct me if my understanding is wrong.

Now, the thing I would like to know is how do I make sure that this criteria will be certainly applicable in my case and there would be no other conditions which I am not aware of at later stage.

Also, apart from the marriage certificate and our residency visas in the UAE, what other documents would be required to prove my case ?

I would be really grateful if you could advise me on this.

 

[Buletruck]

There have been reports that IRCC does sometimes look at who accompanied whom when claiming you’ve lived with a Canadian citizen. If she followed you to the UAE, they may not allow that time to count towards residency. That being said, worst case scenario, she could always sponsor you again.

 

[canuck78]

Hi,



I am an 36 years old Indian male citizen working in UAE for last 5 years. I got my PR status approved on an individual basis through express entry in May 2018 and I did my soft landing in Canada on 1st Oct 2018 for 2 weeks and came back to UAE.

I met a Canadian citizen that time and married her in Jan 2019. We got officially married in India and have the Indian marriage certificate also for the same.

After marriage, my wife who is a Canadian citizen moved with me to the UAE from Feb 2019 and is working and living with me now.

We plan to live and work in UAE for the next 2 years atleast.

As per the Canadian immigration rules, I am aware that to retain my PR status I need to be physically in Canada for atleast 730 days out of the 5 years period from my PR status.

However, I understand from the Canadian Immigration website itself, that there are some exceptions to this rule, one of which is quote “ You travel with a spouse or common-law partner.

Your spouse or common-law partner needs to be: a Canadian citizen “ – unquote
https://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1466&top=10

So, if we follow this, my stay in UAE with my Canadian wife can be officially considered as my time abroad towards my permanent resident status. And i also understand that this duration will only be counted for keeping my PR status alive and not for the actual physical presence of 3 years required to attain citizenship.
Correct me if my understanding is wrong.

Now, the thing I would like to know is how do I make sure that this criteria will be certainly applicable in my case and there would be no other conditions which I am not aware of at later stage.

Also, apart from the marriage certificate and our residency visas in the UAE, what other documents would be required to prove my case ?

I would be really grateful if you could advise me on this.

The fact that you met in a foreign country after you got PR and moved out of Canada is not the intended use of the rule. It is really to allow the Canadian to pursue opportunities abroad without worrying about their spouse meeting their PR obligation. You can certainly try and if not reapply to be sponsored

 

[dpenabill]

Hi,



I am an 36 years old Indian male citizen working in UAE for last 5 years. I got my PR status approved on an individual basis through express entry in May 2018 and I did my soft landing in Canada on 1st Oct 2018 for 2 weeks and came back to UAE.

I met a Canadian citizen that time and married her in Jan 2019. We got officially married in India and have the Indian marriage certificate also for the same.

After marriage, my wife who is a Canadian citizen moved with me to the UAE from Feb 2019 and is working and living with me now.

We plan to live and work in UAE for the next 2 years atleast.

As per the Canadian immigration rules, I am aware that to retain my PR status I need to be physically in Canada for atleast 730 days out of the 5 years period from my PR status.

However, I understand from the Canadian Immigration website itself, that there are some exceptions to this rule, one of which is quote “ You travel with a spouse or common-law partner.

Your spouse or common-law partner needs to be: a Canadian citizen “ – unquote
https://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=1466&top=10

So, if we follow this, my stay in UAE with my Canadian wife can be officially considered as my time abroad towards my permanent resident status. And i also understand that this duration will only be counted for keeping my PR status alive and not for the actual physical presence of 3 years required to attain citizenship.
Correct me if my understanding is wrong.

Now, the thing I would like to know is how do I make sure that this criteria will be certainly applicable in my case and there would be no other conditions which I am not aware of at later stage.

Also, apart from the marriage certificate and our residency visas in the UAE, what other documents would be required to prove my case ?

I would be really grateful if you could advise me on this.

There is no simple answer. There is no for-sure answer.

As observations posted by @Buletruck and @canuck78 indicate, qualifying for and being given credit toward complying with the PR Residency Obligation for time outside Canada, based on "accompanying" a Canadian citizen spouse abroad, is NOT a simple matter where it is not clear that the PR actually accompanied (interpreted as "traveled with" by some authorities) the citizen spouse . . . and not the other way around.

"Now, the thing I would like to know is how do I make sure that this criteria will be certainly applicable in my case and there would be no other conditions which I am not aware of at later stage."​

There is NO way to make sure ahead of time.

In most situations involving PRs living abroad with a Canadian citizen spouse, it does not matter why the couple are abroad, it does not matter who was, in effect, following who abroad. In MOST cases the who-accompanied-whom question is not asked; the who-accompanied-whom question does not matter. In most cases what matters is that there is a marital relationship, the spouse is a Canadian citizen, and they were living together abroad.

In particular, in most cases the relevant factors in qualifying for the credit are:

(1) proof the couple are married​

(2) proof the spouse is a Canadian citizen​

(3) proof the couple were cohabitating abroad​

​

​

BUT SOMETIMES OFFICIALS WILL LOOK AT and CONSIDER WHO-ACCOMPANIED-WHOM

And if they do look at and consider who-accompanied-whom in your case, given the circumstances you describe, there appears to be a real risk the officials could conclude your spouse was accompanying you (largely because that is what appears to be the facts), and it is NOT the case you were accompanying your citizen spouse abroad. And based on that, DENY the credit. (Citizen spouse can nonetheless sponsor you WHEN you are ready to come to Canada to live.)

We do not have anywhere near enough information to assess just how big the risk is. We know enough to recognize there is a REAL RISK of this, because we see quite a few actual cases where this happened (I will cite and link some below).

Your particular circumstances vary some from those in the cases I will reference below, but in significant respects your situation may make for a worse case . . . it appears you have virtually NO personal IN-Canada connection and never was settled IN Canada, so it might be rather obvious that it is NOT even possible you accompanied a spouse abroad since you were not living in Canada to begin with. I have not seen many reported cases involving scenarios similar to this, so it is not clear this will be an important factor, but given the analysis described in the cases we do know about, it is easy to apprehend an approach not much favourable to you.

HOW Things Might Go . . . can vary considerably depending on the particulars of your case WHEN you deal with Canadian officials. For example, if you remain abroad past the expiration date of your PR card and then apply for a PR Travel Document, that would likely pose a rather high RISK that the visa office will consider the who-accompanied-whom question and deny the PR TD, and that could present a rather tough case to win on appeal. IN CONTRAST, if you and your spouse, traveling TOGETHER, come to Canada while your PR card is still valid, there seems to be a decent, perhaps a good chance, you will be allowed to enter Canada without getting reported; in this situation, even if you are reported, if you then remain in Canada pending an appeal, and it is clear you and your citizen spouse are settling in Canada permanently, the odds of the appeal succeeding are probably quite good (the IAD is not likely to force you and your spouse to go through the sponsoring a spouse process if it is readily clear the two of you are settled in Canada to stay . . . different outcome, however, if you were to go back abroad to work pending the appeal).

CAUTION: These observations about how things might go are NOT for-sure, NOT anywhere near definitive. There are lots of variables. The way things actually go will vary and vary a lot, vary from one person to another, and vary depending on a wide range of considerations particular to the individual case.

OK . . . some references to further information:

Here are two links to the same topic where the who-accompanied-whom question is discussed in-depth; the first is to the most recent page in that discussion (but even this is nearly a year ago), and the other is to the first page of that topic. I go into a lot of depth and cite and link many sources there.

The topic is titled "Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE" and here are the links:

https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/page-5#post-8526342

https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

Some actual cases, from last year, illustrating how this issue has been officially addressed:

In'Airat v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124093 (CA IRB), http://canlii.ca/t/j4cls
Good analysis in this case, discussing different approaches to this issue

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)


A slightly older case in which it was ruled that being in the same place at the same time is all that is required to be "accompanying" a partner for purposes of getting the credit: Graziella Romain Louis case http://canlii.ca/t/hxz44


A couple of much older cases which are often cited, and which present two very different approaches:

Mustafa v Canada, 2018 CanLII 47219 see http://canlii.ca/t/hs76z

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

 

[armoured]

No disagreement with the comments and discussion above but it may be helpful to think / consider about the issues in three (I think) distinct timeframes:

1) Until at least October 2021, you will be in compliance with your RO and re-entering Canada will not be an issue.

2) From roughly October 2021 to October 2023 (five year anniversary and presumably roughly final validity of your PR card): you will be out of compliance with your RO. If you enter Canada to reside, you will be at risk of being reported on re-entry for non-compliance and referred for analysis of that non-compliance and whether there are mitigating circumstances / H&C reasons. This will be like the non-uncommon cases of non-compliance with the residency obligation discussed here frequently - to generalise, the sooner after you first go out of compliance (i.e. appr. October 2021 you enter, the higher the chance you will be waved through with no issues. The later you re-enter, the higher the risk you'll be reported etc. As noted, with a Canadian spouse and esp with returning with a Canadian spouse, there are reasons to believe you'll be let in with no issues or only a mention of 'be careful about your RO' (and if reported, successful in terms of being allowed consideration for eg H&C of returning to reside permanently with your spouse). Not a guarantee, but better chances than many might have.

A caution: this is in terms of a pure "return to Canada to reside permanently" scenario. It may get considerably more complicated if e.g. you wish/need to travel (esp for longer periods) before you've become fully compliant with RO (and possibly having to renew your PR card) - note I mean here 'fully compliant' without asking for the 'days abroad with spouse' to count towards your RO. At any point re-entering Canada, you still have some risk of being reported with all that entails. Just to keep in mind in terms of planning, i.e. you can be let in with no issues one month and then have trouble the next time you enter a month later (for example).

[There's also the consideration that if you really decide you need to apply for PR card before you are compliant on a standalone basis - without the time-with-spouse counting towards RO - you may face the issues of who-accompanied-whom. I would guess - no more than a guess - that if you are already residing in Canada at that point, you may get more favourable consideration or at least face less risk of the non-compliance procedures going against you - factually being in Canada will weigh in your favour.]

3) After October 2023/expiry of your PR card - if you have still not returned by then, you'll need to apply for either a PR card while abroad or a PRTD to return to Canada. This is the point when the issue of who-accompanied-whom may come up. Others have described this well here: it's not at all guaranteed this consideration would go in your favour, and the facts don't support well the intended purpose.

As noted, should that fully go against you (government decides your days abroad with spouse do not count and therefore you are out of compliance with RO/potential revocation of PR status), it would be possible to renounce your PR status and re-apply under spousal sponsorship. BUT: in that worst case scenario, this could be a LONG process, first asking for decision on the PR/PRTD, getting refused, renouncing, and then re-applying under spousal sponsorship. As not from a visa waiver country, this could potentially mean long periods in which not able to travel to Canada and even lengthy separation from your spouse.

In sum: if your plans to return can be modified to return before Oct 2021, should be no issues and clearly the safest. If really only two years or less from now abroad (i.e. return in fall 2022), better chances that your plans to re-establish in Canada won't be too complicated (although not entirely without risk and some potential pitfalls such as higher risk of issues arising if need to travel much). If your plans change beyond the two years mentioned and you and your spouse stay abroad longer and most importantly past fall 2023, it could get complicated and difficult/lengthy/more costly to return when you wish.

Also note, all of this assumes no changes to government policy (in law or de facto treatment of these issues); it could become more difficult and restrictive. It's also reliant in some scenarios on your personal circumstances not changing (i.e. your marriage).

 

[dpenabill]

1) Until at least October 2021, you will be in compliance with your RO and re-entering Canada will not be an issue.

2) From roughly October 2021 to October 2023 (five year anniversary and presumably roughly final validity of your PR card): you will be out of compliance with your RO. If you enter Canada . . .

3) After October 2023/expiry of your PR card - . . . .

For purposes of anticipating how things might go, and making plans accordingly, this approach does indeed separate and highlight the key stages, and as such should be quite helpful . . . both in terms of understanding the RISKS and in terms of planning.

It is particularly worth emphasizing the first of these stages, the period of time remaining in which the OP, @explorer84, can come to Canada to stay with NO RISK of losing status (for Residency Obligation reasons). If the OP comes to Canada before the third year anniversary of landing, there is no need for any accompanying-citizen-spouse credit, no who-accompanied-whom issue, NO RISK of a RO compliance issue.

Beyond that, after that, there is the obvious but rather general guideline that the SOONER the PR comes to Canada, the better the chances are. But as observed above, by @armoured, not only is there a big difference in coming to Canada before the expiration of the OP's PR card versus not coming until later, but precisely WHEN can have a big influence. As noted, for sure, coming to Canada just before the PR card expires elevates the RISK significantly more than, say, coming when the PR card is valid for yet another year (note, this is about the first PR card, about the first five years plus a bit after landing).


It warrants CAUTIONING, however, there are many other variables which can potentially have much influence. On the positive side, there is a range of other factors that can weigh in favour of discretion allowing a PR to keep status despite being in breach of the RO (referred to as "H&C" factors, but in some key respects this is more about whether equitable factors support a finding that the PR *deserves* the chance to continue being a PR). In contrast, if there is a lack of ongoing ties to Canada, an absence of IN Canada connections, this can weigh rather heavily against the PR being allowed much leeway.

That is, how it goes for the PR who has failed to comply with the RO is itself complex, and very difficult to forecast (except the more obvious, odds are not at all good cases), beyond the vagaries of PR RO cases involving a who-accompanied-whom issue.

 

[armoured]

I fully agree with the points above, and the formulation 'equitable factors' (not always exactly H&C in a formal sense).

Small additional thoughts:
1) To go back to the original post and question, ie. 'looking for certainty that this [accompanying spouse application] will apply and what other criteria may be applied.' There is no certainty that this will apply. There is certainty that complying with the RO on a standalone basis will remove most questions or concerns.

2) If not in compliance, there are a lot of other factors (basically in the 'equitable' group) that may influence, like whether/how often the spouses return to Canada in between, whether they have/have attempted to establish a household in Canada, etc. How those things weigh in and factor into decisions at the border is hard to say.

3) I'd also note that (partly because of uncertainty about who-accompanies-whom) there may be a different approach if asked questions at the border vs applying formally for days under the 'accompanying spouse' regulations. E.g. returning together and stating such when asked (what were you doing abroad), that Canadian citizen spouse was working - entirely possible that the officer might consider this (mentally at least) as accompanying and wave through (without doing formal days count for compliance purposes, etc). This will depend a lot on credibility. (Usual guidelines: tell the truth simply and briefly, don't volunteer too much information or appear defensive or evasive).

4) In contrast, formally requesting that the days-accompanying be included in RO compliance will quite likely result in more formal and detailed requests for information. That means producing detailed information with supporting documentation, risk of errors or omissions (even inadvertent) being interpreted negatively, and possibly an officer deciding the timeline and details do not fit with the intent of the policy and/or the detailed regs. (Or possibly gets approved with no issues...)

It's probably obvious where I come out on this, that it would be preferable to avoid reliance upon the accompanying-spouse-abroad regs if there's room to do so by planning in advance (and then acting on those plans).

But up to the OP and spouse, of course, if they recognise the uncertainty and risks.

 

[explorer84]

I would really like to thank all of the experienced members here who have so much knowledge on the subject and are also readily sharing it with people in such forums. The in depth response by @dpenabill and @armoured just blew me away. Again a big thanks to you all. I have now a fairly good idea about my situation but i am still not able to find or understand that where is this condition of "who-accompanied-whom" mentioned in a very direct and crystal manner. The Canadian CIC website does not mention this condition explicitly or even indirectly anywhere as far as i know. Therefore, how do they expect any normal person other than legal/immigration experts to know this pecularity and abide by it. I am asking this because i believe that usually the Canadian government and its policies are quite transparent comparitively then any other country and they would not like to put loose words here and there that lead to lot of disputes and interpretation issues for the general public, which in the end just cause more unnecessary legalities and slowdown the smooth immigration process. So, if you can help me to know where exactly does this condition come from, whether its a clause in one of the Immigration Acts of the country or something like that, it would be really great. Thanks!

 

[Buletruck]

I would really like to thank all of the experienced members here who have so much knowledge on the subject and are also readily sharing it with people in such forums. The in depth response by @dpenabill and @armoured just blew me away. Again a big thanks to you all. I have now a fairly good idea about my situation but i am still not able to find or understand that where is this condition of "who-accompanied-whom" mentioned in a very direct and crystal manner. The Canadian CIC website does not mention this condition explicitly or even indirectly anywhere as far as i know. Therefore, how do they expect any normal person other than legal/immigration experts to know this pecularity and abide by it. I am asking this because i believe that usually the Canadian government and its policies are quite transparent comparitively then any other country and they would not like to put loose words here and there that lead to lot of disputes and interpretation issues for the general public, which in the end just cause more unnecessary legalities and slowdown the smooth immigration process. So, if you can help me to know where exactly does this condition come from, whether its a clause in one of the Immigration Acts of the country or something like that, it would be really great. Thanks!

I don’t believe there is a clear statement from IRCC on this, other than “accompanying a Canadian spouse”. Different cases that have gone to appeal have focused on the “who is accompanying” whom aspect of that statement. It seems that the reference to the statement is somewhat ambiguous, which leads to the lack of a Definitive answer or policy.

 

[armoured]

... i am still not able to find or understand that where is this condition of "who-accompanied-whom" mentioned in a very direct and crystal manner. ... I am asking this because i believe that usually the Canadian government and its policies are quite transparent comparitively then any other country ...
So, if you can help me to know where exactly does this condition come from, whether its a clause in one of the Immigration Acts of the country or something like that, it would be really great. Thanks!

The act only says that days "outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent;" count towards residency obligation.

No more detail than that, a PR 'accompanying a Canadian citizen,' and not the other way around.

The intent was probably pretty clear at the time, but my guess is that it was probably an afterthought - that they didn't think there would be many cases. And probably ignored it for years in terms of looking at how it was applied, ie not strict at all.

After that: well no transparent policy stays simple and clear after content as numbers grow and the world changes, perceived abuse of various aspects of the system (especially regarding PRs not residing in Canada and keeping it as an option), multiple governments with different political incentives, unwillingness to change the law, and various quasi-independent and quasi-judicial bodies as well as the courts making decisions.

But there's an easier way to look at it: the intent of the law is clear; the requirements of the residency obligation are clear; follow them and you won't have any problems.

Beyond that, one is relying on lenience, and it may be lenient, or it may not.

 

[dpenabill]

Before addressing this further, it is important to emphasize that this issue, whether a who-accompanied-whom question might arise and threaten credit toward Residency Obligation credit for time spent abroad living with a Canadian citizen spouse, is of concern ONLY in a very narrow range of situations. Even among those PRs living abroad for very lengthy periods of times relying on the accompanying-a-Canadian-citizen-spouse credit, most indicators strongly suggest this issue will ordinarily NOT arise. Regardless why the couple has gone abroad.

Thus, overall, I concur with the observation by @armoured that, in effect, what satisfies the law is amply clear enough in the information provided by IRCC. And, in particular, those who stay within the boundaries of what the law clearly intends will have NO problems with the Residency Obligation.

I would add that IRCC tends to allow the credit more broadly than the law itself prescribes. To the extent there is ambiguity or vagueness in what accompanying-citizen-spouse means, IRCC's approach tends to favour the PR, to allow the credit more freely than what the letter of the law specifies.

. . . but i am still not able to find or understand that where is this condition of "who-accompanied-whom" mentioned in a very direct and crystal manner. The Canadian CIC website does not mention this condition explicitly or even indirectly anywhere as far as i know. Therefore, how do they expect any normal person other than legal/immigration experts to know this pecularity and abide by it. I am asking this because i believe that usually the Canadian government and its policies are quite transparent comparitively then any other country and they would not like to put loose words here and there that lead to lot of disputes and interpretation issues for the general public, which in the end just cause more unnecessary legalities and slowdown the smooth immigration process. So, if you can help me to know where exactly does this condition come from, whether its a clause in one of the Immigration Acts of the country or something like that, it would be really great.

The Residency Obligation itself is explained in detail in easily accessed IRCC websites. Best examples, perhaps, are the Residency Obligation appendixes to the instructions for PR card applications and PR Travel Document applications.

In regards to the particular issue here, these explicitly refer to counting days the PR ACCOMPANIED a Canadian citizen spouse abroad. This is consistent with the statutory provision that describes days that count to include days "outside Canada accompanying a Canadian citizen who is their spouse." This is subsection 28(2)(a)(ii) IRPA which can be found here: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-274598

While there are various meanings of "accompany," in the context of persons "accompanying" other persons, "accompany" is commonly understood to mean "to go with" or "to escort" or "to go along with," and other similar meanings. (This is discussed in some of the official decisions I have previously cited and linked.)

As a practical matter, IRCC appears to actually approach this even more broadly, allowing PRs even greater leeway in allowing this exception to the obligation to spend at least two years in five IN Canada. IRCC generally allows the credit for time a PR is abroad with a citizen spouse, or at least time the PR is living with the citizen spouse. That is, IRCC generally does not require the PR show he or she was actually "accompanying" the spouse, but rather is satisfied when the PR shows he or she was living with a Canadian citizen spouse abroad.

But NOT always. Which is where your inquiry comes into play.

Back to some basics:

-- Canada grants certain, selected Foreign Nationals Permanent Resident status, for the purpose of that individual settling and living in Canada PERMANENTLY​

-- Notwithstanding the purpose of the grant of PR status, Canada allows PRs wide latitude or flexibility regarding how soon they settle in Canada and how much time they spend abroad (PRs can actually spend more time abroad than in Canada, up to three years abroad in any five year period) --​

-- -- this does not change the purpose or intent of the law and grant of PR status​

-- Canada also allows additional EXCEPTIONS, such as the accompanying-citizen-spouse abroad credit and the exception for PRs assigned to work abroad by a Canadian business employer​

-- -- this likewise does not change the purpose or intent of the law and grant of PR status​

-- -- moreover, generally exceptions are more strictly construed and narrowly applied​

-- -- -- however, the accompanying-citizen-spouse abroad exception is generally, usually, less strictly applied, and the credit is allowed so long as the PR and citizen spouse are living together abroad​

-- -- -- -- UNLESS . . .​

You are knocking at that UNLESS door. I addressed this in previous posts. And I discuss the nature of this much more so in the topic I started and have referenced and linked above.

Let's be clear: you were not living let alone settled in Canada, so obviously it is not the case that you "accompanied" your citizen spouse in going abroad. This does NOT mean IRCC will for sure give you a problem about RO compliance. But you appear to be in a situation that is AT RISK for a more strict assessment of whether you should be allowed the credit for accompanying a citizen spouse abroad. That is, your scenario looks like one that falls into that UNLESS category.

So let's back up to the information IRCC publishes about what will satisfy the RO, and in particular when days "accompanying a Canadian citizen outside Canada" will count toward RO compliance. In situations where it is readily discerned the PR was "accompanying" the PR's spouse abroad, again there is little or no risk of a problem getting the credit. There are rare, at most, indications of who-accompanied-whom questions arising when it is readily apparent the PR was accompanying the citizen spouse abroad. Moreover, there are rare, at most, indications of who-accompanied-whom questions arising when it is readily apparent the PR was well settled in Canada and then the PR was later living abroad with a Canadian spouse.

All of which is intended to avoid being blunt. Generally there is NO who-accompanied-whom question UNLESS it is rather apparent, if not obvious, the PR was not accompanying the citizen spouse abroad. When it is readily apparent the PR was NOT accompanying the citizen spouse abroad, and the PR is appealing for credit for time the PR was with the citizen spouse abroad, that is when the who-accompanied-whom question is raised and addressed, to show how it is that the PR was not accompanying a citizen spouse abroad.

Kind of like the speed limit on the 401. 100k. Except for traffic backups and slowdowns, anyone doing less than 110k to 120k is generally holding traffic up. 120k to 130k is very common. On more than a few occasions I have driven in the 130k to 140k range (for good cause, I'd insist, trust me). The law is not ambiguous. The speed limit is 100k. Anyone going faster than that is at risk for getting a ticket and having to pay a fine. The fine will be based on how much over 100k the driver was going, no matter how fast everyone else was driving. No matter how fast law enforcement was allowing without stopping them or issuing tickets.

 

[armoured]

I agree with above.

To break down rather simply, I'd say: the law and intent of the law is clear (although lawyers might argue the point); the uncertainty stems mostly from the relative leniency.

To paraphrase what I wrote above slightly: I think it is in @explorer84 's interest to avoid having a formal review of the 'accompanying Canadian citizen abroad' question. Realistically that is likely the only point where who-accompanies-whom would come up - and while it may be ignored, that is where the risk of the determination going against him is real.

Timeframes were discussed above. Shortest form summary of that: return to Canada sooner rather than later.

 

[dpenabill]

I agree with above.

To break down rather simply, I'd say: the law and intent of the law is clear (although lawyers might argue the point); the uncertainty stems mostly from the relative leniency.

To paraphrase what I wrote above slightly: I think it is in @explorer84 's interest to avoid having a formal review of the 'accompanying Canadian citizen abroad' question. Realistically that is likely the only point where who-accompanies-whom would come up - and while it may be ignored, that is where the risk of the determination going against him is real.

Timeframes were discussed above. Shortest form summary of that: return to Canada sooner rather than later.

This is an excellent summary of the key elements regarding compliance with the PR Residency Obligation and credit toward compliance for time abroad accompanying a Canadian citizen spouse in situations where a who-accompanied-whom issue might arise. They warrant repeating for emphasis:

-- the uncertainty stems mostly from the relative leniency​

​

-- a PR in circumstances similar to what the OP describes would be prudent to avoid a formal adjudication of RO compliance unless and until the PR is in compliance without relying on credit for time abroad accompanying a citizen spouse​

​

-- safest approach is to come to Canada to stay sooner rather than later​

The nature and scope of the "uncertainty," and in particular whether it is something that the government should address and attempt to resolve, is a separate and bigger question.

This is not so much about transparency but, rather, statutory interpretation, and a situation in which there are multiple interpretations of what the statutory provision requires for a PR to qualify for the credit. I discuss the three commonly applied approaches in the https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/page-5 topic.

And I also discuss, there, that Canadians, including PRs, deserve to know what the rules are and how they will be applied. Canadian PRs should not need to guess which interpretation of the rules will be applied to them. The maxim that individuals are responsible to know the law that applies to their behavior depends on the law being knowable, not a guess as to which version of three might be applied.

That said, as much as this is a situation which IRCC and Parliament should address and resolve, that does not change what is known about how to avoid a Residency Obligation compliance problem for someone in the OP's situation.

 

[armoured]

And I also discuss, there, that Canadians, including PRs, deserve to know what the rules are and how they will be applied. Canadian PRs should not need to guess which interpretation of the rules will be applied to them. The maxim that individuals are responsible to know the law that applies to their behavior depends on the law being knowable, not a guess as to which version of three might be applied.

That said, as much as this is a situation which IRCC and Parliament should address and resolve...

Agree that mostly this does not change (much) what is known about how to achieve (relative) certainty about PR status.

While I'm in general pro-transparency and predictability, I'm more willing to accept a situation where the application of the law/rules is generally more lenient than the strict language of the law, and think it has to be seen in the context of a residency obligation framework that is already pretty flexible. And in addition, since this particular rule applies primarily to PRs with citizen-spouses, they also have the 'back-up' solution of being sponsored anew.

Beyond that, I'd note two points: if this provision is ever clarified to increase certainty, it is likely to be in the direction of more strict and narrow interpretation; and, I think the likelihood of this being considered a priority are low.

It's a reality of parliament/government attention that the prominence of the problem matters - and we're talking about a relatively limited number of cases where the precise interpretation matters much. (To make a guess - probably well less than 1000 cases a year? Possibly even in the low hundreds? In the context of an immigration system that admits a couple hundred thousand per year, a rounding error - and a rounding error that doesn't seem to produce that many truly problematic or profoundly unfair results)

And on top of that, it's an issue where it's actually somewhat difficult to provide precise, simple language that would actually resolve most of the cases - so new (probably tighter) rules would likely not actually 'fix' the issue, and many would still end up requiring longer procedures and judgment that would often still be subject to appeal, etc.

Even worse, attempts to fix the issue could actually make things worse in terms of increased administrative load and costs to government. Sometimes a lack of precision combined with relative leniency is actually just more efficient. (If it's only a little bit broken, maybe fixing it is the wrong approach?)

Anyway, as you well note, this doesn't really have direct relevance to the OP's case and question, for which the current framework applies.

 

[explorer84]

Thanks a lot again to all dear members for such brilliant advise. @armoured As you have stated "And in addition, since this particular rule applies primarily to PRs with citizen-spouses, they also have the 'back-up' solution of being sponsored a new. " So assuming that I exhaust my 3 years plus out of Canada in Oct 2021 and then try to fly to Canada in April 2022 or later, the Immigration personnel at Toronto airport may stop me from entering Canada altogether with my wife and tell me to return back or will he allow me to at least enter Canada with my PR card for a restricted number of days like 30 or something until when I can try to register a new Case of applying for a PR under sponsorship from my wife who is canadian and stay in Canada then till a new PR card comes through ? And hopefully the IRCC does not view such new fresh cases of spouse sponsorship negatively where the person applying was already erstwhile PR holder who exhausted his compliance with regards to Residency obligations.

In all honesty, i am likely to return to canada before Oct 2020, but for any unforeseen circumstances I would like to know what can be workable in stressful times and therefore I am asking the above. Thanks again and have a fantastic day!