Please accept my apology in advance if I fail to offer useful commentary here. I was not an asylum claimant and asylum cases are generally outside what I follow (will explain my interest and involvement here, now, below).
Note, too, my observations tend to go long. Many will probably prefer to scroll on by my in-depth discussion.
One more disclaimer, another request to accept my apologies in advance: I realize that for many asylum claimants English is not easy. Unfortunately, I have difficulty writing about this stuff in short, direct statements. My style may be difficult to understand EVEN for someone who has spent a lifetime using the English language including at the university and graduate school level, let alone someone who is relatively new to English. I am a very old-school long-form writer, with bad habits too hard to break. I will try to be clear but, well, that's not my forte.
The observations I have to offer are in response to a particular incident in which it has been reported, by
@Tite2020, that an individual who obtained PR via this path (for exceptional service by asylum claimants) was denied entry into Canada after spending time in that individual's home country, as discussed here in recent days. There are some important unknown elements regarding that incident, but I am focusing on what appears to be a key underlying issue involving cessation of status on the grounds of reavailment of home country protection, based on travel to the home country, BUT that in turn, in contrast, raises concern that the cessation provisions should NOT apply to a PR who obtained PR status via this exceptional service path (which I understand is closing today).
I hope I can address the loss-of-status matter without too badly disrupting the more recent discussion regarding the difficult dilemma reported by
@vick_kenny, a situation regarding which, unfortunately, I cannot offer much at all.
Cessation of status on grounds of reavailment (including that evidenced by a return to the home country)
:
It may be helpful to offer some background. I have been following cessation of protected person status cases affecting PRs since the summer of 2015, focused on PR-refugees who would be eligible for citizenship except for the cessation of their protected person status. I have, accordingly, posted a good deal about this subject, including citations and links to scores of official sources of information, including numerous accounts of actual cases as officially reported in judicial decisions. For example, see:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/refugee-status-cessation-and-prs-applying-for-citizenship.333455/
But I am NOT an expert in this subject. Not even close. (Frankly, it appears there are rather few who are experts in this subject.) And until I became aware of the incident reported here by
@Tite2020, a key aspect of the cessation of status based on reavailment cases I generally skimmed over, and did not give much thought, is the question about precisely WHO is subject to the loss of status, the cessation of status, for reavailment. I notice there are some comments including opinions about this expressed in posts above, but no one citing any authority or source.
So, that is one of the key issues. Assuming the individual in the report by
@Tite2020 was in fact a Permanent Resident, and obtained that status via this special, exceptional service path, most of the comments above suggest that this PR should not have been subject to cessation of status for having visited the home country. I am not prepared to offer a definitive answer to this question, but will note my initial review of the relevant law leans to the contrary, that individuals granted PR via this pathway might very well be considered PRs with protected person status subject to the cessation provisions in IRPA, which are in section 108(1) IRPA, including subsection 108(1)(a), the provision making reavailment of home country protection grounds for cessation; see
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-20.html#h-275708
It is a complicated issue. It might not be a settled question. Just for a glimpse of how complicated this question can be, see, for example, the Federal Court of Appeal decision in the Siddiqui v. Canada case, 2016 FCA 134, [2017] 1 FCR 56,
https://canlii.ca/t/grsb2
(A Federal Court decision also illustrating the complexity of the "WHO" is subject to cessation question is Justice Fuhrer's decision in Camayo v. Canada, 2020 FC 213, [2020] 2 FCR 575,
https://canlii.ca/t/j54n9 but the substantive issue may not be particularly relevant to the special path to PR situation.)
The Siddiqui case is so important in regards to WHO is subject to cessation IRCC has published a summary of the case, which is here:
https://canliiconnects.org/en/summaries/61836
Part of what is stated there should raise some concern. For example, it states:
"There is no reason why the principle of reavailment and its associated criteria should vary according to the route by which status as a protected person is originally obtained."
Now that decision is not specifically about the route by which asylum claimants are given a "pathway" to PR in recognition of exceptional service related to covid. But the gist of Siddiqui's claim was that the reavailment provision did not apply to him and that "
by virtue of his permanent resident status which he gained on arrival in Canada, was excluded from cessation proceedings. He contended that the RPD decision was flawed as the Board did not correctly understand that [he] was not a Convention refugee."
In particular, Siddiqui argued that "
his status as a protected person was lost when he was granted permanent resident status, and, as such, section 108 cannot apply." To which the Federal Court of Appeal ruled: "
This argument has no support in the statute."
I am NOT suggesting this settles the question. Again, I am NO expert in this stuff. But absent a defining statement of authority that individuals who obtain PR via this exceptional service pathway are not still considered to be protected persons or more specifically that subsection 108(1)(a) does not apply to them, anyone who has obtained PR status via this pathway would be prudent to exercise a great deal of caution before obtaining or renewing a home country passport, and especially cautious about traveling to the home country.
To my view, the question needs further research, BUT in the meantime,
those who have obtained PR via this path should be careful.
Otherwise, however, this does not explain what happened in the incident reported by
@Tite2020:
Some have said there must be more to the story. That is almost certainly the case. As reported, the story does not compute. A PR must be allowed to enter Canada at the PoE. This is so clear, so well-settled, it is not at all likely a PR would be denied entry at a PoE even by a rogue officer. Possible, sure,
stuff-happens, but highly unlikely.
Nonetheless, whatever the story, however the situation came to be what it was, it has raised the question about WHO is actually subject to losing status for traveling to the home country. Which is not an easily answered question in some scenarios.
