I consulted a lawyer this evening. She advocated yet another nuanced approach: Step 1: Apply to CIC for continuance of PR with a humanitarian package and receive application acknowledgement and UCI. Step 2: Then daughter to fly to US and present herself at the border. This she says is a better approach because the officer at the border can see there is already an application ongoing and that the PR has made a serious effort to represent her case in advance. The lawyer mentioned the child's chances of being issued a sec 44 is further reduced with this approach. When quizzed about what happens if a sec 44 is issued, the lawyer said, it will expedite the already submitted application hearing. If the appeal is rejected the option is to convert to a student permit. I hadn't come across such an option before so I must confess I am still processing this information. I am sure, as experienced members you understand the path described.
Generally I defer to information and advice from a qualified immigration lawyer. This is especially so in regards to advice based on the lawyer's review of an individual's actual circumstances. (After all,
I am NOT an expert, not even close, and a lawyer can better evaluate relevant facts, including those best not shared in a venue like this forum; so there is little or no comparison between what someone here, like me, can offer, versus that of a licensed professional with actual experience handling such matters.)
While this is subject to some exceptions (I do not put much stock in free consultations, for example), it warrants emphasizing that it is usually better to completely follow a lawyer's advice or, in effect, fire the lawyer and rely on other sources of assistance. Trying to mix-and-match advice is a recipe prone to fail.
Beyond that, commenting on what a lawyer has advised can be complicated due to imprecise language and the risk of confusion. This appears to be a significant factor here.
All of which is to emphasize my reluctance to comment on, let alone evaluate, let alone criticize what the lawyer appears to recommend.
Nonetheless . . . Some Observations:
There seems to be something a bit awry here. Probably rooted in some confusion in the language. So, some further "clarification" may be worth considering.
There is no such thing as applying for continuance of PR. For H&C reasons or otherwise.
The lawyer may have been referring to an application to renew the PR card, or otherwise an application for a new PR card. This is NOT an application to continue PR. PR status continues unless and until there is some formal adjudication terminating status.
Assuming the lawyer was referring to an application for a PR card, to be eligible to make this application,
however, IRCC states that the PR "
must be physically present in Canada." See the
guide for PR card applications (this should link).
Whether or not, let alone how and to what extent, IRCC can or will enforce this, is not clear. This eligibility requirement is not based on a statute or regulation. There have been judicial decisions stating that IRCC cannot deny a PR card application for the sole reason the PR did not make the application in Canada or is not in Canada. But IRCC has continued to assert that being in Canada is a requirement.
It is feasible the lawyer contemplates ignoring this eligibility requirement and proceeding with making the application despite the PR herself being outside Canada. I do not know. But, to be clear, the application needs to be signed by BOTH the PR herself AND (until she is 18) at least one parent. It is clear that she is the one making the application. Not a parent on her behalf. And as long as she is not IN Canada, the guide states she is
NOT "
eligible for a PR card."
It does not seem likely the lawyer is referring to making a PR TD application.
As I noted in my previous post:
Main option is to apply for PR TD and/or travel via the U.S., and plan to appeal if that becomes necessary.
Other than first making whatever kind of application the lawyer suggests, what you have described the lawyer saying is essentially consistent with this "main option," with what appears to be a preference for making the trip via the U.S. rather than applying for a PR TD.
I would note that if the approach pursued does not involve waiting until she is 18, I too would lean in favour of making the trip via the U.S. rather than applying for a PR TD. Probably heavily in favour of traveling via the U.S. (visa offices appear to be more strict compared to CBSA officers at a PoE). The fact the PR is there, at the door so to say, is clear evidence of making the effort to return to Canada.
That said, for context, there are pros and cons relative to these respective approaches, applying for a PR TD versus traveling via the U.S. (and particularly so if she waited until she was 18). So which approach a particular PR takes is a personal decision which should be made in consideration of that individual's personal situation.
As I also noted in my previous post:
Back-up option, if PR status is lost, is for parent in Canada to sponsor the child for PR again.
If an appeal is necessary, and it is denied, to remain in Canada to attend school, yes she can apply for a student permit.
However, there is nothing to "
convert" to a student permit in this. What happens when the appeal is denied is that she becomes a Foreign National, and in order to remain in Canada she will need to apply for some other status, such as a student permit. HOWEVER this will not give her status to remain in Canada beyond the expiration of her status as a student. If she is hoping to be a PR, you should be able (assuming you are eligible) to sponsor her for PR until she reaches the age of . . . I think it is 21, perhaps somewhat longer if she remains a full-time student.
She can apply for BOTH. She can apply for the student permit first, and later you and her make the sponsored PR application. Or . . . well, there are various ways to go about this. None of which needs to be explored in depth UNLESS she is issued the 44(1) Report upon entering Canada and then loses the appeal.
Another Clarification:
"When quizzed about what happens if a sec 44 is issued, the lawyer said, it will expedite the already submitted application hearing."
Here too it seems likely what the lawyer said is somewhat different than this version of it, some confusion rooted in the language. The issuance of a 44(1) Report will, in a general overall sense, "expedite" a definitive outcome. But to be clear, it will not expedite IRCC's processing of an application for a new PR card. Rather, the procedures attendant the issuance of the 44(1) Report will determine your daughter's status. IRCC would almost certainly suspend processing a PR card application pending the outcome of any appeal from the 44(1) Report. Basically, if a 44(1) Report is issued at the PoE, she will lose PR status unless she appeals and wins the appeal. Only if she wins the appeal, will IRCC proceed with the PR card application and issue a new PR card (although she may be able to apply for and be issued a one-year card pending the outcome of the appeal -- this will
NOT resolve the determination of inadmissibility resulting in the 44(1) Report, meaning she will still need to pursue and win the appeal).
Note Regarding Impact of Age:
My previous remarks about before or after turning 18 are based on cases involving PR TD applications as reported in IAD decisions. Based on those cases, it is readily apparent a PR who applies for a PR TD soon after reaching the age of majority, relying on H&C relief based on having been removed-as-a-minor, has good odds (among the best odds for RO H&C cases) of prevailing on appeal despite being denied a PR TD. This in turn suggests, which is consistent with anecdotal reporting, that such PRs have rather good odds of being issued a PR TD and otherwise keeping PR status. The impact of applying BEFORE the age of majority is NOT readily apparent in either the IAD cases or in anecdotal reporting I have seen. My suggestion about what is safe is based on going with what is known (good odds for those applying SOON and AFTER reaching 18) rather than what is unknown.
Concluding/Summary Observations:
If the objective is to attend school here in September, months prior to her 18th birthday, the least risky approach is probably coming to Canada via the U.S. At the risk of contradicting the lawyer, I doubt a PR card application prior to that enhances the odds of a favourable decision at the PoE. I suspect some risk that a PR card application might invite elevated scrutiny, especially given the IN Canada eligibility requirement.
Where to from there depends on what happens at the PoE.