Can my time abroad count toward my permanent resident status?

[armoured]

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 ?

No, that's not right.

It works differently than that:
-As long as your PR card is valid you should be able to board a plane to Canada.
-At the border: up to your three-year anniversary of first landing, you are in compliance with your residency obligations. (They may ask questions but you will still be in compliance)
*Short digression: 730 days in first five years - during which you are given 'credit' for the days remaining to that first five-year anniversary - MEANING as long as you have been out of Canada less than 1095 days in those five years, you are in compliance - and why someone arriving within three years of first landing is in compliance.
-After that three-year anniversary, every time you are examined - eg at border - whether you are in compliance or not depends on your days in/out of Canada. (This may be uncomfortable for those who are not in compliance and need to travel - safer to stay in Canada.)
-Assuming you are out of compliance while PR card valid: they may or may not 'report' you for being out of compliance, including starting the process of revoking your PR status. If reported, you can appeal. While that process is underway, you can remain and live in Canada - which may or may not result in losing the PR status.

I'm going to stop there. But no, it's not clear that you'd hypothetically be able to remain after losing an appeal/having PR status revoked even if spouse intended to sponsor you after losing PR status. You'd be let in during appeal but that's related to current PR status, not some potential new sponsorship.

 

[canuck78]

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!

Just wanted to clarify the time counted abroad is really intended for PRs who have established themselves in Canada and have had to move abroad with their Canadian spouse. The fact that you never lived in Canada and married your Canadian spouse while living abroad are the major issues.

 

[dpenabill]

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!

If you arrive in Canada before October this year, before being abroad more than 1095 days since landing, the who-accompanied-whom question is totally irrelevant, not a factor; you will be good to stay and live and work in Canada.

In contrast, if you do not arrive in Canada until AFTER you have been abroad more than 1095 days since landing:

-- you will be allowed to enter Canada (border officials cannot and will not stop you from entering Canada)​

​

-- you MIGHT be examined regarding Residency Obligation compliance; without getting tangled in the more complex *why* elements, again you will still be allowed to enter Canada, but the outcome of the examination could be:​

-- -- you are nonetheless waived into Canada, whether with a warning about RO compliance, or based on being allowed credit toward RO compliance for time living abroad with your citizen spouse, OR​

-- -- you are issued a 44(1) Inadmissibility Report for inadmissibility based on a breach of the RO, which in turn could mean​

-- -- -- another officer (technically called the "Minister's Delegate") decides to allow you to enter Canada (either overrules the first officer, regarding the credit, or allows you to keep status based on H&C reasons), OR​

-- -- -- the other officer (again, the "Minister's Delegate") issues a Departure Order​

ONLY the last of these constitutes a decision to terminate your PR status because you failed to comply with the RO.

Any of the other outcomes, you will be OK.

But if the last of these happens, that is you are Reported and issued a Departure Order, even if this happens, you are still allowed to enter Canada. Even if this happens, the border officers cannot, and will not, turn you back.

Assuming you are coming to stay, what you then do is file an appeal. Not complicated. How that will go, well, sorting out the probabilities can get a little complicated, but the gist of it is that you stay pending the appeal. You can work pending the appeal. You can even travel in and out of Canada pending the appeal.

If you win the appeal, all is well. If you lose the appeal your spouse and you then begin a new sponsorship PR application.

But that is well down the road and subject to a whole lot of contingencies, things that cannot be known for certain until they happen. Biggest one: when it is you actually come to Canada.

Which warrants revisiting with some emphasis:

-- arrive before October, NO PROBLEM​

-- arrive after October, after you have been outside Canada more than 1095 days, how soon you actually get here can still matter a lot, for example​

-- -- if you arrive this year, before the end of December say, the odds are probably very good there will be NO problem at the PoE, or perhaps a warning; if nonetheless Reported, odds of the appeal going well should range from good to very good​

-- -- the later you arrive, the closer to the date your PR card expires, the greater the RISK border officials will conduct a RO examination, and the greater the RISK it will lean toward strict RO enforcement rather than a warning, and ultimately the greater the RISK the accompanying-citizen-spouse credit is denied and a Departure Order is issued​

So for now the major issue is WHEN you actually make the trip to Canada. And when you do that, depending on when that is, there will be many more pieces of the puzzle available, it will be easier, then, to apprehend where things are headed and make decisions about how to navigate your way forward from there.

Leading to . . .

The fact that you never lived in Canada and married your Canadian spouse while living abroad are the major issues.

Not literally or really true, since the major issue is how many days the PR is outside Canada before the PR returns to Canada. Which is still relatively unknown. And here, if the OP returns to Canada by October this year, not only are these not the major issues, they would be totally irrelevant.

Among other factors which could have significant if not more influence, is whether the PR is traveling with the PR's citizen spouse upon arrival.

But, OK, in a superficial way, this describes key factors which MIGHT have influence, indirectly, in how it goes for the OP IF the OP comes to Canada to stay after having been outside Canada for more than 1095 days.

But the premise itself, as you express it, is simply NOT correct.

That is, the following is NOT true:

Just wanted to clarify the time counted abroad is really intended for PRs who have established themselves in Canada and have had to move abroad with their Canadian spouse.

If this was true, then the outcome in the Gehrke v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124068 (CA IRB), http://canlii.ca/t/j4cms case would have been very different.

But it is NOT true. Or, at least in the dozens of official expressions of what Parliament "intended," vis-à-vis the accompanying-citizen-spouse credit, NONE say this is what is intended.

Sure, here too, in a superficial way, this somewhat describes the influence these factors can have, as in MIGHT have, IF and WHEN an official is applying a more narrow interpretation of the accompanying-citizen-spouse credit than what IRCC's own Operational Manual prescribes. In a backwards sense.

If actual official sources matter to you (which generally does not appear to be the case), the closest any official source comes to something like this, is stated in the Diouf v. Canada (Citizenship and Immigration), 2011 CanLII 59952 (CA IRB) https://canlii.ca/t/fn81r case . . . which more than a few other official sources disagree regarding. Which means it would be utterly wrong to cite Diouf as definitively stating what Parliament intended -- it is at best one version of what some officials believe Parliament intended . . . and, to be clear, even what Diouf says is only somewhat in the ballpark of what you describe as "really intended."

In terms of how such factors influence these kinds of cases, your description points in the direction of the "why" underlying how some of these cases go, not based on what the officials say but based on extrapolating from the circumstances in those cases. Many times a close description is more off, more misleading, more confusing than a blatantly erroneous statement.

In any event, at this stage, your post clarifies NOTHING that is relevant to the inquiry posed. The OP is asking about what the actual procedures are likely to be if and when the OP does not return to Canada before October this year.

 

[armoured]

If you arrive in Canada before October this year, before being abroad more than 1095 days since landing, the who-accompanied-whom question is totally irrelevant, not a factor; you will be good to stay and live and work in Canada.

In contrast, if you do not arrive in Canada until AFTER you have been abroad more than 1095 days since landing:

-- you will be allowed to enter Canada (border officials cannot and will not stop you from entering Canada)​

​

I raise a point that comes after the return to Canada and 'staying and living and working': it is important to remember that compliance with the residency obligation may (will?) be looked at in every interaction with IRCC/CBSA - meaning principally on every entry to Canada.

I emphasize this because if the PR's plans after returning to and settling in Canada include frequent travel that may lead to breaches of the residency obligation, there is a risk that the government could start the report process (on any of these future entries to Canada).

The key takeaway from that is similar to @dpenabill's point above: the sooner the PR returns to Canada, the better: the more days-in-Canada under the RO, and the more buffer to allow travel and/or the less time to become compliant again by remaining in Canada. It's a relatively common issue here: PRs who spent relatively little time in Canada during the first two-three years after landing who then find that their ability to travel and remain compliant with RO is severely constrained later in their five-year period after first landing, particularly if unexpected contingencies arise.

This is another very good reason to return as soon as feasible, the sooner the better - and to plan ahead if one anticipates that one's other commitments or employment may require travel.

 

[dpenabill]

It's a relatively common issue here: PRs who spent relatively little time in Canada during the first two-three years after landing who then find that their ability to travel and remain compliant with RO is severely constrained later in their five-year period after first landing, particularly if unexpected contingencies arise.

The following is not so much a response to your post (with which I concur) but more a further tangent triggered by it.

The situation for a PR like @explorer84 is complicated enough, without addressing the variables affecting potential transactions with IRCC (like PR card applications) or CBSA (future PoE examinations if the PR travels abroad before having solidly met the RO based on presence IN Canada). These are of course important considerations. But these are also widely variable and difficult to forecast.

This heads into an area where what is practical, particularly if considered in the context of real-life needs, differs from what the rules prescribe, and into the realm of RISKS and Risk-Management. Subject to many, many variables and contingencies, and difficult if not impossible to quantify risks.

I hope to not go too far down this tangent here. It tends to get really, really complicated. The variables are many and dynamic and interrelated, making it very difficult to map how one factor will influence the way things go.

The one factor that is different, in this regard, the one that actually dominates, and which is one of the few whose impact is largely directionally proportional to how it influences things, and the one which perhaps I harp on to excess, is the number of days IN Canada. More days in Canada, the better. This can be expressed in various ways, such as saying the fewer days outside Canada the better, or as I (and others) often phrase it, the sooner the PR gets to Canada the better.

As I recall, it was you who suggested the caution "the sooner the PR returns to Canada, the better" might be "glib." And why that may indeed be so is at least in part a recognition that this is utterly obvious, on one hand, but as a practical matter, relative to actual decision-making by PRs, is subordinate to many other practical necessities in the lives of real people in their very real personal situations.

Which points to and raises questions about the many, many, many other factors and circumstances which can influence how things go, with variable and difficult to forecast effect. Which, however, is not to overlook that to some extent some of these other factors can roughly suggest a probable influence, at least directionally but not conclusively. Not as assuredly so as the more-days-IN-Canada factor, but roughly so.

That is, some PRs cannot avoid taking some RISK of being Reported. Unfortunately there is no formula for quantifying the risks. There is no way to reliably predict how it will go. But we can, at least, identify some factors and a general idea of how those factors can influence things.

Extent of settlement in Canada and extent of other in-Canada ties, for example. Generally (but not always) the more the better.

Frequency or temporal proximity of previous trips into Canada, for another example. The more recently the PR has previously entered Canada, for example, the lower the RISK of a severe RO examination upon arrival at a PoE the next time.

At the risk of revealing ways that could aid some PRs in gaming the system, but not with that intent, the PR who regularly visits Canada, even if for relatively short periods of time, can significantly reduce the risk of an adverse PoE RO compliance examination despite falling short (there are documented cases where some individuals may have relied on this, encountering no questions about RO compliance upon arrival at a PoE, on multiple occasions, continuing well past the point they fall short of RO compliance, and then suddenly, the next time, they are examined and Reported . . . the one I recall best involved a PR who had actually been cautioned about RO compliance, which was maybe the third or fourth time he returned to Canada after being in breach, who was then Reported the next time, and who then made a concerted plea in the appeal that he deserved to keep PR status because he had been, more or less, lulled into thinking it was OK because he had not been reported when previously arriving in Canada . . . I do not recall the outcome).

For the soft-landing PR who pushes the boundary and ends up short of RO compliance, once settled in Canada, if the extent of the breach is not a lot and after a significant period of time remaining in Canada, the PR then engages in brief travel abroad, as long as the PR is traveling with a valid PR card the risk of a negative PoE examination is probably quite low.

I would go as far as to say that a PR who is twenty or forty days short of RO compliance, who was recently in Canada and has a home in Canada, is rather unlikely to be Reported upon arrival at a PoE . . . cautioned, perhaps, and of course there are exceptions, some obvious, and so a PR who is well past the first five years since landing and who was last IN Canada more than three years prior, being just twenty or forty days short could help in the H&C department but this PR is probably significantly at higher risk for being Reported than, say, a soft-landing PR who has difficulty making the move to Canada and is arriving six months late, a year and a half before his first PR card expires.

The problem is the extent to which the details vary, and the extent to which outcomes in what seem like similar situations vary. So how it has gone for some does not support reliable conclusions about the degree of RISK.

That is, again, other than in the most general, vague, which way this or that pushes the needle sense, with little or no assurances about which side of the line the needle will end up.

More than a few are bothered by the extent to which many PRs who are not fully in compliance with the RO are allowed to proceed through a PoE examination without RO compliance screening (especially given how liberal the RO itself is). They might as well be bothered by the extent to which OPP allows drivers to regularly exceed the speed limit by 10k or 20k on the 401 and Queen's Expressway.

But sure, it does lead to vagaries in outcome which can amount to overt injustice in some cases. And some bias undoubtedly infiltrates the decision-making. I am guessing that PRs who are American citizens probably have better odds (and maybe by a lot) of sliding through the border without being Reported than, say, PRs from the ME.

In the meantime, getting round (the long, long way round) to situations akin to the OP's, the extent to which a PR has some leeway to travel abroad during the next two years after arrival, despite exhausting the three-year allowance before arriving in Canada to stay (that is, a PR in breach), is not all that hard and fast. Being short at all, puts the PR "at risk" of being Reported, but the degree of risk varies greatly and for some will be within acceptable-risk-taking parameters, depending . . . depending on a lot . . .

 

[armoured]

As I recall, it was you who suggested the caution "the sooner the PR returns to Canada, the better" might be "glib." And why that may indeed be so is at least in part a recognition that this is utterly obvious, on one hand, but as a practical matter, relative to actual decision-making by PRs, is subordinate to many other practical necessities in the lives of real people in their very real personal situations.

I don't recall the context in which I said that, but hope that it was clear I meant it may sound glib (in the sense of overly simple and possibly unconcerned) but that it's still the most simple and actionable advice.

For the soft-landing PR who pushes the boundary and ends up short of RO compliance, once settled in Canada, if the extent of the breach is not a lot and after a significant period of time remaining in Canada, the PR then engages in brief travel abroad, as long as the PR is traveling with a valid PR card the risk of a negative PoE examination is probably quite low.

I would go as far as to say that a PR who is twenty or forty days short of RO compliance, who was recently in Canada and has a home in Canada, is rather unlikely to be Reported upon arrival at a PoE . . . cautioned, perhaps
...
In the meantime, getting round (the long, long way round) to situations akin to the OP's, the extent to which a PR has some leeway to travel abroad during the next two years after arrival, despite exhausting the three-year allowance before arriving in Canada to stay (that is, a PR in breach), is not all that hard and fast. Being short at all, puts the PR "at risk" of being Reported, but the degree of risk varies greatly and for some will be within acceptable-risk-taking parameters, depending . . . depending on a lot . . .

Fair points with which I don't disagree - in the sense that I might have overstated somewhat the risk at examination for someone who has resettled in Canada and eg travels for brief periods.

I was partly simplifying by not going into the many other complications that can result down the line after the PR returns. E.g. a PR who needs to travel abroad around/after the expiry of PR card and is out of compliance (even by smaller amounts) may find applying for a PRTD to be much more risky - and a number of other potential scenarios that may also be unpleasant, such as not being able to sponsor a spouse for (in some cases) a lengthy period of time.

All of those other scenarios roughly lead to the same simplified (potentially glib) rule of thumb that returning earlier is better, and those who arrive just before the three-year anniversary may face uncomfortable limitations later, especially if they need to travel (and hence not accumulate days-in-Canada for RO compliance).

I hope the reiteration of this point perhaps encourages some to return earlier and avoid those situations later, not discourage them from returning (earlier).

 

[dpenabill]

I hope the reiteration of this point perhaps encourages some to return earlier and avoid those situations later, not discourage them from returning (earlier).

Yep. For sure.

I agreed with the potentially "glib" reference. Same might be said about another thing I repeat often, "if in doubt, follow the instructions; otherwise, yep, follow the instructions."

For those who know and understand much about the way these things work, both propositions are so well known and understood some might say they are "trite," or "glib," but they are nonetheless so important they warrant repeating and in many cases should be taken quite seriously.

But you refer to a big risk in addressing the nuances at length, the risk of understating the risks.

We try to make the rules themselves clear, as best we know them and how they are applied. Beyond that, we try to illuminate some of the twists and turns, the pitfalls, the parameters for more complex decision-making.

In doing this you are absolutely right to be cautious about understating how the rules might be applied. The primary key is knowing what the rules are and how to best be sure to stay on the right side of them.

 

[canuck78]

If you arrive in Canada before October this year, before being abroad more than 1095 days since landing, the who-accompanied-whom question is totally irrelevant, not a factor; you will be good to stay and live and work in Canada.

In contrast, if you do not arrive in Canada until AFTER you have been abroad more than 1095 days since landing:

-- you will be allowed to enter Canada (border officials cannot and will not stop you from entering Canada)​

​

-- you MIGHT be examined regarding Residency Obligation compliance; without getting tangled in the more complex *why* elements, again you will still be allowed to enter Canada, but the outcome of the examination could be:​

-- -- you are nonetheless waived into Canada, whether with a warning about RO compliance, or based on being allowed credit toward RO compliance for time living abroad with your citizen spouse, OR​

-- -- you are issued a 44(1) Inadmissibility Report for inadmissibility based on a breach of the RO, which in turn could mean​

-- -- -- another officer (technically called the "Minister's Delegate") decides to allow you to enter Canada (either overrules the first officer, regarding the credit, or allows you to keep status based on H&C reasons), OR​

-- -- -- the other officer (again, the "Minister's Delegate") issues a Departure Order​

ONLY the last of these constitutes a decision to terminate your PR status because you failed to comply with the RO.

Any of the other outcomes, you will be OK.

But if the last of these happens, that is you are Reported and issued a Departure Order, even if this happens, you are still allowed to enter Canada. Even if this happens, the border officers cannot, and will not, turn you back.

Assuming you are coming to stay, what you then do is file an appeal. Not complicated. How that will go, well, sorting out the probabilities can get a little complicated, but the gist of it is that you stay pending the appeal. You can work pending the appeal. You can even travel in and out of Canada pending the appeal.

If you win the appeal, all is well. If you lose the appeal your spouse and you then begin a new sponsorship PR application.

But that is well down the road and subject to a whole lot of contingencies, things that cannot be known for certain until they happen. Biggest one: when it is you actually come to Canada.

Which warrants revisiting with some emphasis:

-- arrive before October, NO PROBLEM​

-- arrive after October, after you have been outside Canada more than 1095 days, how soon you actually get here can still matter a lot, for example​

-- -- if you arrive this year, before the end of December say, the odds are probably very good there will be NO problem at the PoE, or perhaps a warning; if nonetheless Reported, odds of the appeal going well should range from good to very good​

-- -- the later you arrive, the closer to the date your PR card expires, the greater the RISK border officials will conduct a RO examination, and the greater the RISK it will lean toward strict RO enforcement rather than a warning, and ultimately the greater the RISK the accompanying-citizen-spouse credit is denied and a Departure Order is issued​

So for now the major issue is WHEN you actually make the trip to Canada. And when you do that, depending on when that is, there will be many more pieces of the puzzle available, it will be easier, then, to apprehend where things are headed and make decisions about how to navigate your way forward from there.

Leading to . . .



Not literally or really true, since the major issue is how many days the PR is outside Canada before the PR returns to Canada. Which is still relatively unknown. And here, if the OP returns to Canada by October this year, not only are these not the major issues, they would be totally irrelevant.

Among other factors which could have significant if not more influence, is whether the PR is traveling with the PR's citizen spouse upon arrival.

But, OK, in a superficial way, this describes key factors which MIGHT have influence, indirectly, in how it goes for the OP IF the OP comes to Canada to stay after having been outside Canada for more than 1095 days.

But the premise itself, as you express it, is simply NOT correct.

That is, the following is NOT true:


If this was true, then the outcome in the Gehrke v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124068 (CA IRB), http://canlii.ca/t/j4cms case would have been very different.

But it is NOT true. Or, at least in the dozens of official expressions of what Parliament "intended," vis-à-vis the accompanying-citizen-spouse credit, NONE say this is what is intended.

Sure, here too, in a superficial way, this somewhat describes the influence these factors can have, as in MIGHT have, IF and WHEN an official is applying a more narrow interpretation of the accompanying-citizen-spouse credit than what IRCC's own Operational Manual prescribes. In a backwards sense.

If actual official sources matter to you (which generally does not appear to be the case), the closest any official source comes to something like this, is stated in the Diouf v. Canada (Citizenship and Immigration), 2011 CanLII 59952 (CA IRB) https://canlii.ca/t/fn81r case . . . which more than a few other official sources disagree regarding. Which means it would be utterly wrong to cite Diouf as definitively stating what Parliament intended -- it is at best one version of what some officials believe Parliament intended . . . and, to be clear, even what Diouf says is only somewhat in the ballpark of what you describe as "really intended."

In terms of how such factors influence these kinds of cases, your description points in the direction of the "why" underlying how some of these cases go, not based on what the officials say but based on extrapolating from the circumstances in those cases. Many times a close description is more off, more misleading, more confusing than a blatantly erroneous statement.

In any event, at this stage, your post clarifies NOTHING that is relevant to the inquiry posed. The OP is asking about what the actual procedures are likely to be if and when the OP does not return to Canada before October this year.

I commented in response to OP who has been indicating that he has no plans on meeting his RO. As in the case you attached (Diouf v. Canada (Citizenship and Immigration), 2011 CanLII 59952 (CA IRB) https://canlii.ca/t/fn81r case ) and as I was pointing out, having never lived in Canada and having met a Canadian spouse abroad does factor into whether you can use time together towards RO. Had the married couple lived together in Canada before moving abroad the case would be viewed differently. Still doesn’t guarantee approval. Meeting your RO is always the best option.

 

[explorer84]

Thanks again for all your responses @dpenabill @armoured @canuck78. Very insightful indeed. Now since I have understood this better technically, I have just last few points that I would like to raise here and know what do you all think. First, I am trying to mention the whole scenario in a more sequential and detailed manner and then will raise my doubt. I got a PR card in Oct 2018, met my fiance and her family for the first time in Canada and we confirmed to get married in Jan 2019 in India. Initially, the plan was that after marraige, she would come to Dubai with me and find a job for herself and both would stay together in Dubai till Dec 2020 max where she would also get a good job experience and global exposure in her field of work and get to know a new place as home. Now, Covid struck in 2020 and she lost her job as an accountant in May 2020. Fortunately, after 5 months of trying a lot and working hard to upgrade her accounting and finance skills online with many courses, she finally got a really good job in a global company headquartered in Italy and with a decent salary that she took up in Nov 2020. Just 3 months into the job and she feels this is her best job yet she has found in last 10 years of her accounting career and is sure that she can grow very quickly as well over here and sees a nice future for herself for the next 2-3 years. Additionally, she loves to live and work here as well and wouldn't mind at all for now staying 2 years more. Also, she now has this moral dillema that after accepting a new job just few months go and getting well trained from her boss, she doesn't have the heart to tell her employer that she would like to leave the job so quickly without even completing one year. So, this is the actual real situation right now with me and therefore, I would like to ask few questions based on this fact.

As per above situation, can it be deciphered that even though if earlier for the year 2019 and till Nov 2020, it was she who accompanied me the PR holder here in Dubai, now it is acually the opposite and it is the PR who can claim to accompany her as per the current situation where she is more willing to stay in Dubai and continue her career rather than leaving it midway and take the trouble of again finding a new job in Canada and disrupt her life. So can this situation, and ofcourse proven with all her new job documentation allow to assess the days towards RO for myself start from Nov 2020 till next 2 years ?

And other scenario is say if I move to Canada alone for RO reasons in April 2021, and after 2 months of staying alone in Canada I move back to Dubai for next one year, based on the justification that my wife does not like living alone in Dubai and insisted that I return back to Dubai to live together with her. Will then atleast the whole technicality of officially "who accompanied whom" be considered the other way from the period beginning June 2021 till next few years and will help me to get the count of days living in Dubai with my wife towards fulfillment of RO ?

One thing to note in all of this is that from the time my wife landed in Dubai since Jan 2019, she has been living and working here under a housewife visa sponsored by myself through my employer. She did have the option of getting her own independent work visa once she got her new job, but since that would take additional time and save the employer quite a few thousand dollars in visa cost for sponsoring her, they were happy to have her work with the existing visa. Even with her new job in Nov 2020, she has continued with the same visa. Hope this does not have anything to do with making it seem more obvious that it was the Canadian citizen only that accompanied the PR and was sponsored by me in Dubai and not the other war round atleast since Nov 2020 since her second job.

Am really sorry to get this situation so complicated now, but honestly i really do not understand the logic that if the condition of a PR accompanying a Canadian citizen abroad that IRCC has put in place to include the number of days towards RO being counted, then why should there this thing of "who accompanied whom" should even matter, because in any case even if the PR fails to get the number of days for his RO to be counted , he/she may very well put up another application later for a spousal sponsorship and most likely with proper documentation they would be anyways granted a PR card again. So, why does the government/IRCC not remove such conditioning at all/or atleast not implement the who accompanied whom factor and straight away allow the count of days towards RO. This is just what i feel and I am sure not everybody would agree with me on this, but maybe because I am currently facing this situation i might be subconsciusly biased for such an outcome and blind about other issues around it, if any.

Thanks again! Looking forward to our experts advise

Best Regards!

 

[armoured]

she feels this is her best job yet she has found in last 10 years of her accounting career and is sure that she can grow very quickly as well over here and sees a nice future for herself for the next 2-3 years. Additionally, she loves to live and work here as well and wouldn't mind at all for now staying 2 years more.
...
So can this situation, and ofcourse proven with all her new job documentation allow to assess the days towards RO for myself start from Nov 2020 till next 2 years ?

And other scenario is say ... Will then atleast the whole technicality of officially "who accompanied whom" be considered the other way from the period beginning June 2021 till next few years and will help me to get the count of days living in Dubai with my wife towards fulfillment of RO ?

Warning: personal views only. Others will agree/disagree.

1) I think you have missed in the above discussion that no-one can answer your question about whether the days abroad with your wife will count or not. Not with any certainty. There is no way to get that certainty in advance.

There was some discussion about how to achieve more certainty vs less certainty (short form: return and reside in Canada as if your PR status does not depend on counting days abroad with your spouse). After that, the 'risk' grows, from relatively small to larger over time. I think that rough framework can help some to inform your decisions, but not make them.

You can consult a lawyer, of course. Perhaps they'd suggest some specific course, perhaps these would reduce risk, etc. I am personally skeptical that these scenarios, more or less elaborate, would remove the risk entirely. And equally, I'd be skeptical of legal advice that purported to give certainty. Perhaps IRCC will accept your logic, perhaps not, you will choose to appeal (or not considering altnerative of applying anew), perhaps you would be successful on appeal. Perhaps there are other options (could your wife's company employ her in Canada?).

In the end, you and your wife have choices to make about which you wish to prioritise (residing abroad or in Canada to protect PR status) and how much risk you're willing to take. You have, unlike many PRs, the 'backup' to renounce and re-apply under sponsorship; that's not a bad option (although personal risk to you if for whatever reason your spouse cannot sponsor you in future).

Am really sorry to get this situation so complicated now, but honestly i really do not understand the logic ... So, why does the government/IRCC not remove such conditioning at all/or atleast not implement the who accompanied whom factor and straight away allow the count of days towards RO.

There's a French saying: "il ne faut pas chercher à comprendre" (one must not try to understand) - in this context, arguing about or wondering about the logic doesn't help much. Or, if you prefer, "it is what it is" (although in this case worse as no-one can say with certainty what the policy actually is).

As I've noted above, my personal belief is that if this rule is ever codified more explicitly by the government in future - that is, written into law or regulations - it will be in the direction of much more strictness, whether in terms of criteria to qualify or possibly time limitations. @dpenabill has written eloquently that the current uncertainty/unevenness of enforcement is deeply unfair and possibly arbitrary - and that's a fair point. Every individual who's thought about this at all would probably have a different opinion and preference about which cases count and which should not.

But in terms of planning and deciding, it doesn't help you much. So I think unfortunately it falls on you and your spouse to decide on priorities and willingness to take risk.

 

[dpenabill]

@explorer84

In addition to what has been said already, before, the further remarks from @armoured cover the situation. Especially in regards to what @armoured said about making decisions and planning . . . the for-sure approach is to come to live in Canada. Beyond that it is YOUR choice how to approach this, taking into account what you can discern about the risks if you elect to remain outside Canada for more than 1095 days during your first five years since landing.

Note, there is a lack of consensus about this issue, about who is at risk, including when and why. There have been assertions that some lawyers dismiss there is a risk at all, despite the IAD cases otherwise (perhaps they perceive those to be outliers, anomalies). This is in addition to the lack of consensus among IAD panels as to what the rule requires.

Which leads to . . .

Am really sorry to get this situation so complicated now, but honestly i really do not understand the logic that if the condition of a PR accompanying a Canadian citizen abroad that IRCC has put in place to include the number of days towards RO being counted, then why should there this thing of "who accompanied whom" should even matter, because in any case even if the PR fails to get the number of days for his RO to be counted , he/she may very well put up another application later for a spousal sponsorship and most likely with proper documentation they would be anyways granted a PR card again. So, why does the government/IRCC not remove such conditioning at all/or atleast not implement the who accompanied whom factor and straight away allow the count of days towards RO. This is just what i feel and I am sure not everybody would agree with me on this, but maybe because I am currently facing this situation i might be subconsciusly biased for such an outcome and blind about other issues around it, if any.

What the rules should be . . . generally this question is a distraction tending to bog down in online punditry if not outright pundit pulp fantasy. Plenty of that to go around, for sure, but for those who are wrestling with practical decisions about how to navigate the system, this question is not helpful. What the rules are is what matters. How the rules are applied is what matters. Actual policy and practice is what matters.

Of course sometimes it is worth recognizing there is an issue, a problem, with the existing rules, or the way they are applied, and acknowledging the rules should be, or at least could be, let's say, *fixed.* Here, in regards to the accompanying citizen spouse credit, it is worth taking note of this. BUT this is as much about recognizing the nature and scope of the variables, and especially the potential vagaries, which can influence how things MIGHT actually work in an individual's situation.

Why the rules are this or that . . . I sometimes discuss this but mostly for the purpose of trying to better illuminate how the rules actually work. But other than that, other than to illustrate how the rules work, generally this question also tends to wander away from what will help a PR figure out the better choices to make.

Otherwise . . . previously, back in mid-December, in THIS topic, I cited and linked several IAD decisions which illuminate much of what underlies how the accompanying a citizen spouse credit works when there are circumstances triggering a who-accompanied-whom question. If you really are still unclear, go back and follow the links to those decisions and read them. In addition to what the IAD panels decide, and their reasoning for their decisions, it helps to look for and clearly recognize what the Minister's representative argued. The latter illustrates the position of the government/IRCC/CBSA . . . . at least where the who-accompanied-whom question has become an issue.

While I suggest reading more of those cases I cited and linked a month ago, just the following two should clarify a lot about this issue:
In'Airat v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124093 (CA IRB), http://canlii.ca/t/j4cls
Gehrke v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124068 (CA IRB), http://canlii.ca/t/j4cms


Some Further Observations About What You Might Explain to IRCC or CBSA . . .

Even though there is a subjective aspect to who-accompanied-whom, and especially if and when the inquiry deals with "why" the couple was abroad, subjective explanations tend to carry about as much weight as a net will carry water.

Here again, look at those IAD decisions. Look at what matters to the IAD judge. Look at what matters to the Minister's representative.

Here is a clue: the pattern of travel and address history will be far, far more influential. Just the impression that traveling together, or at least in relatively close proximity timewise, will have, versus the negative impression it makes the less *together* the couple actually travels, is likely to have far more influence than personal, subjective explanations. Your travel and address history, combined with the spouse's history, tells far more of the tale than can be conveyed by way of explanation, which, by the way, most often tends to come across more like making excuses, which in turn quite often makes a negative impression (even if only as to credibility) rather than help much.

Remember, dealing with IRCC is dealing with a bureaucracy, and bureaucracies are what bureaucracies do, driven by the decision-making of total-stranger bureaucrats. Dealing with CBSA is dealing with a combined law enforcement and bureaucratic body.

FINALLY, in this regard, it can help to clearly separate what is relevant to determining compliance with the RO versus what is relevant to the H&C analysis IF (and only IF) the PR is in breach of the RO. Note, as much as I follow these issues, until quite recently I too failed to adequately recognize the importance of this distinction. In any event, be aware that explanations and excuses that will play a role in making the H&C case, and be very important in that regard, can cloud or confuse what matters in determining if there was a failure to comply with the RO. (Criminal trial analogy: guilt phase versus sentencing phase, and being clear about what kind of case to present respectively.)

 

[armoured]

Some Further Observations About What You Might Explain to IRCC or CBSA . . .
...
Here is a clue: the pattern of travel and address history will be far, far more influential.

A point for @explorer84 that I think is important - that was mentioned before in this post splitting the time-frames:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/can-my-time-abroad-count-toward-my-permanent-resident-status.713898/post-9063776

I mention this here because in "the pattern of travel and address history" returning to Canada before the PR card expires, the earlier the better, will likely matter far more (in practical terms) than a formal consideration later of travel history abroad and then who-accompanied-whom. It's in the PR's interests to avoid having the issue come up at all - and if it does come up as "I resided with my spouse abroad where she worked", that's better than the formal study of travel and address history (i.e. who accompanied whom).

There is/will be a period - after the PR is out of compliance with the RO but while the PR card is still valid - in which there can/may be two very different types of examinations (possibly more, come to think of it). In this specific case, it refers to basically the period from roughly three years after first landing to expiry of the PR card (~Oct 21 to Oct 23).

I think that returning to Canada (permanently) in this period presents a significantly lower risk of who-accompanies-whom coming up at all, or at least in a formal setting - that is, a better chance that the PR will be waved through the border without a formal report process starting at all.

Whether we call this 'leniency' or not, chances are not bad - even for PRs who are not attempting to claim accompanying-spouse days - that they will just be admitted without being formally reported. For those who refer to accompanying-spouse, chances should be even better - the officer does not know sufficient detail to decide on the spot whether this would meet the formal criteria, and may decide, in simple terms, "looks okay."

I'm going to treat look at this in reverse chronological order.

1) After arriving in Canada and being reported (formal appeal/adjudication process), although also at application for PRTD. This is probably the only point where a formal, detailed consideration of who-accompanied-whom would come up (if at all). Formally, in the sense of presenting detailed documentation including things like who-travelled-when, etc, getting questioned about who got employed first, and all that.

2) Border examination: when arriving out-of-compliance, depending on how long out of compliance and other factors, the officer may ask about RO compliance (possibly in indirect ways). The PR can explain the reasons why - family reasons, covid travel, dog-ate-my-homework, etc - and the officer can decide whether to start the formal reporting process or not. (Note, if so, this is likely to mean secondary examination at the port of entry).

The PR can mention and use as a reason 'accompanying citizen-spouse working abroad.' This may be less specifically stated at first (and after subsequent questioning): 'my wife and I have been living in Dubai where she works.' They may ask follow-up questions, getting a bit more specific, or simply accept this.

My point is: at the port of entry, I strongly doubt they will be making any formal determination of who-accompanied-whom. The PR has not specifically asked for it, filed paperwork regarding this, etc. (Would the officers at border want to get into this detail, or even have internal guidance about what's acceptable?) The issue of who-accompanied-whom simply may not come up: "we were residing together while spouse worked." [Obviously don't lie about any aspects or exaggerate - but most of these concepts are more than a bit fluid.] The officer simply may not know how (have ever received training) about how to make a formal distinction about who-accompanies-whom or if it matters.

As always, chances may be better or worse - depending on factors @dpenabill has discussed elsewhere - credibility, whether the couple seem to be returning to reside or just "post-office box" residence in Canada, etc. There's a possibility that it's just too complicated, and too much likelihood of the story holding up and being a textbook case of 'accompanying a citizen-spouse', so they don't want to file the paperwork. They may decide to let the PR enter Canada and decide by their actions whether they are truly resident.

In this period, at border examination, there are better chances it will just be accepted without detailed examination, possibly without much detail or questioning, possibly more. Of course, it's possible that the officer has strong opinions on this and (for whatever reason) decides to look at who-accompanied-whom in much more detail - but I doubt the chances of this are high, it's a rather esoteric topic.

Whether this is low or high risk, or acceptable risk, is subjective.

@dpenabill may comment, but my impression from the IAD cases cited is that relatively few cases are actually coming up in the first-five-year period (ie before first PR card renewal). Instead, they seem to come up for PRs who have factually not resided in Canada for very long periods, and in a notable number of cases, barely resided in Canada at all. (But: not consistently enough to say there is zero chance)

 

[dpenabill]

. . . my impression from the IAD cases cited is that relatively few cases are actually coming up in the first-five-year period (ie before first PR card renewal). Instead, they seem to come up for PRs who have factually not resided in Canada for very long periods, and in a notable number of cases, barely resided in Canada at all. (But: not consistently enough to say there is zero chance)

I do not know.

As I mentioned before, there is no clear consensus about what the rule actually entails, how it should be applied, or even when a who-accompanied-whom issue will come up.

There is at least one forum participant who reported that a lawyer was adamant there is no reason a PR living abroad with a citizen spouse needs to worry about a who-accompanied-whom issue (though the scope of that was never clarified).

In contrast, as cited and linked here, there are numerous actual cases, as reported in official sources, that are examples of both IRCC (mostly visa office decisions denying PR TD applications) and CBSA (these being the reported at a PoE cases) denying the credit based on who-accompanied-whom or related considerations, and in several of those cases the Minister's representative specifically arguing the credit should be denied based on who-accompanied-whom, and some IAD panels affirming the denial of the credit.

But we know, as you have also noted with some emphasis, this only affects a relatively small number. And as I have oft reminded, this is limited to those for whom the risk should be relatively if not readily apparent. Few PRs should be caught by surprise.

In particular, here and in the other topic we have scrutinized the IAD decisions at length and identified at least some of the more salient factors that APPEAR to TRIGGER and influence the who-accompanied-whom issue, and discerned that the circumstances in which this comes up, and more particularly those circumstances which seem to pose a serious risk of a negative decision based on it, are almost always (but not always) quite extreme and blatantly inconsistent with (if not overtly contrary to) the purpose for granting PR status (which is so the individual can settle and live IN Canada PERMANENTLY).

An overall very lengthy period of time living abroad is perhaps the most telling factor, but this is a problem only if there are other circumstances overtly indicating the citizen joined the PR abroad, or the citizen is otherwise obviously the one "accompanying" the PR abroad.

I am hesitant to focus too much on that factor, even though it may indeed be a circumstance, or even THE circumstance, which most often is the thing triggering an officer's attention and concern about allowing the accompanying a citizen spouse credit. Or even if it is THE factor which most often weighs heavily against allowing the credit.

I am tempted to lean as much toward focusing on a broader factor, the extent to which it is apparent the PR is NOT much (if at all) connected to a Life-In-Canada, which of course is inherently tangled in subjective intent elements, whereas intent is NOT a relevant factor in the Residency Obligation (the 2/5 rule was adopted in significant part to be liberal enough to accommodate any and all contingencies, within a range that is consistent with a combination of intent and capacity to actually settle in Canada PERMENANTLY, and allow screening RO compliance without need to consider the PR's particular intent). Moreover, this is of course a very broad, vague approach, prone to ambiguity, which in turn is prone to uneven or outright inconsistent application.

To be clear, the extent to which there is virtually no connection to a Life-In-Canada is not a factor that is or even can be explicitly or overtly discussed in concrete, well-defined terms. While it clearly has a big influence, it is at best addressed indirectly, contextually. It kind of falls into that category of you-know-it-when-you-see-it, or more to the point when you don't see it, and thus evades what is quantifiable.

A long history of minimal presence in Canada is of course an element of this, and in a rough, very rough sense, the longer the larger it looms negatively. But to my view, it is just that, just one element, and a lot of other facts and circumstances matter.

This leads back to the early responses to the OP, which you again reiterate, deservedly so, as I too have in my more recent posts: emphasizing that if the OP remains abroad more than three years relying on credit for time accompanying a citizen spouse, the stage is set for being at RISK in regards to this issue because the OP has never really settled in Canada, and because it is readily apparent on its face (travel and address history alone) that the OP did NOT accompany a citizen spouse abroad (and subsequent machinations attempting to revamp the obvious are not likely to obscure let alone conceal what is obvious -- and, frankly, my sense is that an attempt to do this, and then offer an explanation based on this, has a greater risk of hurting the case rather than helping).

That is, the OP has a path to avoid the RISK of a potential RO compliance problem. Only one for-sure path.

Otherwise, if the OP remains abroad more than three years, there is a risk of encountering a RO compliance problem. A risk (this is not for sure, but a risk, what appears to be a real risk) that credit for time living with a citizen spouse will not be allowed.

It might be reasonable to risk it, for the OP, calculating it is a risk worth taking, recognizing there is a safety net available (that is being able to be sponsored for PR anew if necessary). In making such calculation, sure, the OP may also take into consideration what we know about some risk factors . . . for example, likely lower risk for a PR still within five years of landing.

But that is an entirely PERSONAL decision. Lots of factors to consider. Economic. Career. Family. Stability of the marital relationship. Medical considerations. And looming very large, personal priorities. To my view, gaming the risks, trying to predict probabilities, is far too speculative to give the risk-forecasting aspect much weight in making such a decision.

 

[armoured]

It might be reasonable to risk it, for the OP, calculating it is a risk worth taking, recognizing there is a safety net available (that is being able to be sponsored for PR anew if necessary). In making such calculation, sure, the OP may also take into consideration what we know about some risk factors . . . for example, likely lower risk for a PR still within five years of landing.

But that is an entirely PERSONAL decision. Lots of factors to consider. Economic. Career. Family. Stability of the marital relationship. Medical considerations. And looming very large, personal priorities. To my view, gaming the risks, trying to predict probabilities, is far too speculative to give the risk-forecasting aspect much weight in making such a decision.

Thank you, I agree with all your points. As noted earlier, it is an entirely personal choice for the individual, and it is clear that the only certain path with respect to keeping PR and not having this be an issue is ... complying with the residency obligation.

I still believe on balance-of-risks that the chances of being reported, and having the who-accompanies-whom issue formally adjudicated (with the possibility that this will go against the PR), are considerably lower during the first five years, for the reasons outlined in previous posts. (With the usual caveats that no-one knows how likely, and the less out-of-compliance, the better).

But that 'lower likelihood' is not certainty and only the PR and spouse can decide.

 

[CanadianDreamer@TO]

I am working in the Canadian Branch of a US company. Work is primarily from home. For 3 weeks, as agreed with the management of my company, I would be working from home but from India. Will this time spend count towards the resideny obligation?