If a PR returns to Canada after long absence and declare that he/she now wants to permanently settle in Canada, the RO police still have a problem. They are willing to put in a complex system to process new PR applications, bring in new PRs to stay in Canada but if someone return after an absence and have all intentions to stay in Canada. they make you jump through hoops. How are they different from a new immigrant coming in Canada as a new PR?
When is a removal order issued?
- Thread starter hungtington
- Start date
Much of the decline we observe in the Western world is due to severe decline in values that started in late 60's and continues today. I was asking myself the other day, why so many things are so badly managed? Why inept, incompetent or outright crooked people are placed in charge of policy making, why there seems to be no accountability or care about consequences? And, I think, prime cause is that in West (formerly developed world) they have swapped merit based system to the one that anyone coming from third world country or socialist block countries is too familiar with, the one based on insider access, connections and corruption. Your ability to reach the top of the system is no longer determined by your skills, talents and willingness to work hard. To the contrary you could be as stupid as a base of the tree that Papa Carlo cut Pinocchio from, but as long as you are part of elite , are insider and well connected, sky is your limit. And no matter how smart, hard working or talented, you could be easily thrown out the board for lack of belonging to these novae elite.
That, I think, is the biggest problem that we face and if this is where the Western civilization has come to, where can someone yearning for better life escape?
That, I think, is the biggest problem that we face and if this is where the Western civilization has come to, where can someone yearning for better life escape?
I agree. However, there is more to granting of citizenship than RO. Even, criminality or indictable offence could halt citizenship grant.
Of course. The OP was interested (I believe) in RO aspect of it, and in particular wanted to know what happens if PR is honest, doesn't commit fraud and/or misrepresentation, returns to Canada years after approval of citizenship application to attend oath ceremony, gets reported for RO, attends oath ceremony and gets citizenship because IRCC fails to check his status (which is reported for breach of RO) immediately prior to sweating in. He was wondering if CIC could later revoke such individual's citizenship, while the statute states that the grounds to revoke are fraud and misrepresentation (and OP's hypothetical PR hasn't committed any acts of crime). I later Googled and shared another post (https://www.canadavisa.com/canada-immigration-discussion-board/threads/when-is-a-removal-order-issued.749614/post-9811316) which appeared to deal with someone who was granted Citizenship in error, due to no fraud or misrepresentation but because of the immigration Judge's and IRCC's error. Federal court ruled in his case that his citizenship was cancelled rightfully, because Parliament did not intend for him to become a citizen, even though the grant of citizenship occurred due to government's error and the applicant hasn't committed any crimes or misrepresentations.
As I previously observed, and clarified, PR-citizenship-applicants relocating outside Canada after applying, while the citizenship application is in process, is not new. In fact, as I also noted, Harper government concerns, going back more than a decade, about applicants-applying-on-the-way-to-the-airport, were a dominate issue motivating some of the more draconian provisions in the SCCA (Strengthening Canadian Citizenship Act), including in particular the so-called "intent to reside" requirement (promptly repealed by Liberal government Bill C-6).
For applicants who relocate abroad after applying, while the application is pending, there are inherent risks that are similar to risks all applicants have but which are bigger risks for the applicant abroad; these include
-- logistical risks like missing notices, failing to timely respond to requests, travel problems causing a failure to appear for a scheduled event, and
-- procedural risks related to non-routine processing, mostly RQ-related but also security-screening-related, which may be aggravated or even triggered by IRCC's perceptions of the applicant living abroad
These are discussed in some depth in multiple topics in the Citizenship forum. What may seem "new" is that given the impact of Covid on processing times, more PR-citizenship-applicants living abroad might actually encounter the possibility of delays in processing so long they run into RO compliance issues before being scheduled for the oath.
As I have noted, however, even this is not really new. This happened before, roughly between 2011 and 2013, when there was a system-wide slow down in processing timelines, which began in 2009/2010, and was due to Harper government policies and practices aimed cracking down on BOTH outright fraud but also applicants the Harper government perceived to be pursuing-a-passport-of-convenience, typically indicated (as government officials and others perceived it) by the applicant applying-on-the-way-to-the-airport.
When the processing timeline for citizenship applications was a year or less (mine was eight months, almost to the day, between mailing the application to the day I took the oath; for many at my ceremony the processing timeline was six months), very, very few citizenship applicants who went abroad after applying would get anywhere near a Residency Obligation compliance issue. Even applicants encountering big delays due to things like RQ-related non-routine processing were still getting through the process, and scheduled for the oath, in less than two years, only occasionally longer and rarely three years. So, between roughly 2013 and 2020 this issue did not come up much because so few applicants living abroad after applying had a RO compliance issue.
Along came Covid and processing delays. Similar to what happened in 2011 to 2013, when there was a system-wide slow down in processing timelines, for those applicants whose process gets tangled in more complex and time delaying non-routine processing (like full-blown RQ, serious security screening issues, complicated prohibitions issues) the timeline can go long enough that an applicant living abroad runs into RO compliance issues.
Which I am guessing is at least in part the context giving rise to your query about this. More than a few 2019 applicants have already had their applications in process for more than two years, and if they encounter non-routine processing delays on top of this, there might indeed be a significant number of applicants for whom the process takes three years. If they have been living abroad after applying, three years abroad is the threshold for a RO compliance issue. (And if they had spent much time abroad during the two years just before applying, it could come sooner.)
Discussions about living abroad after applying for citizenship (again, mostly in the Citizenship forum) often reference this risk (in addition to the others), but in recent years (up to recently) this was with less and less emphasis because processing timelines were fast enough (until Covid) this was less and less a practical concern. In fact, many forum participants were casually and sometimes emphatically responding to queries about living abroad after applying with "No Problem" (often omitting reference to the elevated logistical and procedural risks, and thus to my view those casual assurances were misleading).
Which brings this, finally, to the subject of your comments I quote above: attitudes about citizenship applicants who move abroad after applying for citizenship.
I do not, as some might say, have a dog in the fight. My attention in and approach to these matters is virtually laser-focused on figuring out how things actually work, not how people believe they should work. If I mention how something "should work" I am almost always referring to how it should go according to the law and rules and known policies and practices. (Some perceive this to be a bias favouring the status quo, and in a sense it has that effect; but I rely on the benefits of being focused on how things actually works and that helps figure out how to best navigate the system.)
In any event, it warrants cautioning that there is indeed, in fact, a powerful, broad-based, deeply rooted concern among Canadians about granting citizenship to those many would describe as applying-on-the-way-to-the-airport. This is real. The repeal of the SCCA "intent to reside" provision did not mean those attitudes went away. This attitude is a big part of why those living abroad after applying face a substantially greater risk of RQ-related non-routine processing. While the Conservatives are more militant about this, many NDP and Liberal leaning Canadians also share this attitude. In fact, it was during a Liberal government, back in 2005, that screening citizenship applicants' passports for indications they were just returning to Canada from abroad in time to take the test or to attend the oath became part of the standard practices; this was a formally articulated reason-to-question-residency, meaning something that would trigger RQ . . . even though days outside Canada after applying are not a part of the calculation (not then, when there was a residency requirement, and not now with the physical presence requirement; the calculation of this qualifying requirement is exclusively about the eligibility period, not at all about after applying).
Others can discuss the reasons for this attitude. Again, my focus is on what in fact influences how things actually work.
We might get a picture of how much influence this attitude continues to have in the wake of covid related measures pursuant to which a significant number of applicants are taking the knowledge of Canada test abroad. It will be interesting to see if the reporting and tracking reveals any significant difference between post-test processing times for those who took the test IN Canada versus those abroad at the time of the test. My crystal ball is indisposed and otherwise this is a difficult one to forecast. There is at least a significant risk those who took the test outside Canada will encounter longer post-test timelines before getting to the oath. How it will actually go, though, best we can do is wait and see.
Thank you.
In fact, I was not arguing against "being surprised at" the thought that someone applies for citizenship and left Canada *permanently*. (I didn't state my attitude towards this)
I was arguing against "being surprised at" the thought that someone applies, and in the processing time, would like to be outside Canada for 3 years in *some* 5 year period.
Although some Canadians might be indifferent regarding their right to leave Canada permanently (I don't know), I would assume that most would find it counterintuitive that they need to always obey something like RO throughout their lifetime.
Of course, one might argue that processing cannot take a lifetime. However, the (unmet) commitment of IRCC does not prevent this from happening. IRCC is committed to process "most" applications within 12 months. But no information regarding the max/expectation/variance/etc. is made public. It is, therefore, not unsound to say that the probability of an eligible person waiting forever to become a citizen can be nonzero. (Personally, I don't think this metric, or commitment, of IRCC is well motivated. As I described, it produces counterintuitive outcomes. I don't know why they set such a metric instead of something that provides more information.)
The fact (or is it) that "most" applications are processed in an upper bounded amount of time does not support ignoring the rest applicants' experience as they wait for oaths. Otherwise, it would be followed by ignoring the interest of all people that are not in "the majority".
I don't know if IRCC actively and intentionally delaying applications for some people whom they suspect they are not well established. I just speculated IRCC could do that (based on the discussion here) to find a legal reason to refuse their citizenship applications, that otherwise cannot refuse. Whether it's moral or not, I think IRCC would not be concerned with that. If they found it moral to prison new citizens for 10 years in Canada, I don't see why they cannot do it another indirect way that brings less attention and criticism.
We had similar impasse in the US, in the early 2000's and all the way until may be 2006 or 2007. We had thousands of US Citizenship applications stalled by USCIS, under the pretext that it was doing background and security checks, or was simply backlogged and unable to timely process all the applications. Situation would sometimes get really absurd. We would have LPRs in military with security clearances ,fighting a war for US overseas and then finding their applications for USC stalled by USCIS indefinitely. Some of those guys would get really angry , go public and sue all branches of the US Government under what we call a Writ of Mandamus. Not all lawsuits were successful. USCIS/DHS often hid behind the shield of "national security imperative" and courts would sheepishly defer, even though in many cases it was obvious that the delay was unjustified and malicious , and in the end , after years of waiting, the applicant was granted the citizenship anyway. But occasionally, US Attorney would respond and offer to settle. Settlement involved simple act of agreeing to execute the duty by USCIS and either grant or deny the benefit sought. Writ of Mandamus, thus, is an act of forcing government official to discharge its duty, whether it be in favor or against applicant doesn't matter. I wonder if you have anything similar in Canada?
If governments ever act in bad faith, with ill intent and malice, yet are afraid of public exposure (because they work at the behest of elected officials, whose political images can be tarnished if such ill acts and intentions came to light), then what they do next is they create total secrecy and remove any trace of transparency, under one or the other pretext. There is no valid reason to make a great secret out of an ordinary thing such as an accurate processing time of citizenship applications for all applicants. It's not like a war secret or something that enemy can use to attack and harm the country. In fact, transparency in such matters is required to keep things under control/check and make sure government acts fairly and good faith. But if it's kept secret, you can bet the intentions are something that they would rather keep hushed and away from the public eye.
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Even during the most draconian phase of the Harper-era effort to target those perceived to be seeking-a-passport-of-convenience, those who fit the characterization of someone applying for citizenship more or less on their way elsewhere (often the U.S., but not exclusively), more or less leaving Canada permanently, which tended to focus mostly on those seen as having applied-on-the-way-to-the-airport, even during that period of time it was common to see CIC (before the name change to IRCC) treat some applicants very differently than others, and hardly blink an eye for some applicants outside Canada for extended periods of time while their application for citizenship was pending. That is, there was clearly a marked difference among those who were targeted for non-routine processing in effect delaying the process and otherwise subject to probing for reasons to deny citizenship, versus those who enjoyed smooth sailing on their way to taking the oath notwithstanding being abroad while the application was pending.
There was much speculation at the time, and frankly some fairly compelling statistical evidence, suggesting the Harper government was delaying decision making for those perceived to be seeking-a-passport-of-convenience, mostly indicated by being seen to have applied-on-the-way-to-the-airport. And doing this, perhaps, to DELIBERATELY delay the process long enough those applicants would encounter a RO compliance issue giving the government grounds to block them from becoming a Canadian citizen.
But again, some applicants abroad still sailed through easily.
Generally the distinction probably revolved around the difference between those appearing to be outside Canada temporarily, such as you earlier suggested, to attend university for example, even though most of the actual cases involved graduate programs rather than undergraduate university, perhaps because it was easily recognized that certain graduate level programs were not readily available in Canada and it would be unreasonable to force those individuals to delay their educational and career path to "wait" for their citizenship application to be finalized.
The "intent to reside" phase mostly deserves little more than a footnote, since it was so brief, and since it was readily apparent that the Harper government never planned to apply and enforce it universally but, rather, to employ it as a means to deny citizenship to those it perceived, again, to be seeking-a-passport-of-convenience, which again tended to focus mostly on those seen as having applied-on-the-way-to-the-airport. (By the way, contrary to persistent mischaracterizations, that clause never had any impact on what a naturalized citizen could do after taking the oath; it in no way precluded a new citizen from moving abroad anytime after taking the oath. It was ONLY about what was required to qualify for citizenship, and was definitely intended to be a bludgeon the government could use to deny citizenship to those it perceived, again, to be seeking-a-passport-of-convenience . . . but also to a significant extent figuring this provision would be a prophylactic device discouraging what many saw as exploitation of the Canadian immigration system.)
But it nonetheless did reflect and illustrate the risks inherent whenever the government has broad discretion, which includes the risk of arbitrary and disparate, unjust outcomes. Worse with the "intent to reside" provision, because that more or less gave the government grounds to just outright deny citizenship if an applicant was determined to be residing outside Canada after applying. But bad enough, discriminatory enough, even when limited to a policy or practice to target some applicants for elevated scrutiny, invasive non-routine processing, and lengthy processing delays, based on subjective perceptions about whether the applicant is seeking-a-passport-of-convenience based on circumstances not directly related to the eligibility requirements.
Side note (wandering a bit into reflections about what the rules should be):
As I often say, "bureaucracies are what bureaucracies do." And the broader the discretion, the greater the risk of arbitrary and disparate, unjust outcomes. Eliminating discretion is rarely a good solution, because that often makes the law and rules too rigid and inflexible. I am not suggesting where to draw the line here or what the balance should be. I am merely noting that determining the ideal criteria can be very difficult and while too much discretion is bound to result in injustices, persons in equal positions being treated unequally, in contrast too little discretion tends to be overly severe if not outright harsh for many. This is not unique to IRCC or Canadian immigration institutions.
The PR Residency Obligation itself is a prime example. It is a fixed rule. Exceptions are narrowly interpreted, narrowly applied. IRCC and CBSA have no discretion, ZERO discretion, to modify the RO. If a PR spends more than three years outside Canada, within the relevant five year period, the PR is in breach of the RO. Somewhat around two decades ago Canada moved to this fixed rule because the previous approach, dominated by judgments about the PR's intention, was indeed too indefinite, too uncertain, leading to far too many grossly disparate outcomes. The fixed rule gives most of the flexibility and discretion to PRs themselves. A PR can spend up to three years outside Canada without having to justify or so much as explain why.
But even that, if that was the end of the story, and it appears you would agree (based on your student abroad at university example, among other indicators), would be exceedingly severe, overly harsh, if there was not some mechanism of relief available. Setting aside the view there should not be a RO (not going to happen in the foreseeable future; despite globalization the world is headed away from a Marxist citizens-of-the-world scheme toward more rigid national immigration controls, albeit with affluence combined with certain national passports giving some people way, way more mobility than the vast majority of the world's population), Canada's current scheme allows PRs to retain PR status despite breaching the RO if either a decision-making officer finds sufficient H&C reasons or, even if the decision-making officer does not allow that relief, if on appeal a IAD panel finds such reasons to allow the PR to keep status.
Which leads back to the PR-citizenship-applicant abroad while the application is pending . . .
Three years abroad, within five, is the hard line for PRs, including the PR-citizenship-applicant abroad while the application is pending. Yes, there is the prospect of H&C relief, but that tends to be a risky proposition, and a losing proposition if the reason the PR is abroad is more or less a matter of choice. The three year window should allow the vast majority sufficient flexibility assuming their plans are consistent with the purpose of Canada's path-to-citizenship policies, which is to facilitate permanent settlement in Canada. Some can argue about whether this purpose should play such a dominate role in Canadian immigration policies, that is, discuss what the law should be. But for those making decisions, making plans oriented to navigating the Canadian immigration system, this purpose is at the center of the policies and practices underlying the Canadian system, a big, big part of how the process actually works.
Conclusion: PR-citizenship-applicants going abroad should watch the calendar and plan accordingly.
The article here discusses Writ of Mandamus (We Command) , and how immigrants can force Canadian government discharge its' duties, if it refuses to do so without court action.
Is My Application Eligible for a Writ of Mandamus?
You must meet specific legal requirements before a court is prepared to issue a writ of mandamus. According to The Canadian Bar Association, these are:
(b) there was
(i) a prior demand for performance of the duty;
(ii) a reasonable time to comply with the demand unless refused outright; and
(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
(4) No other adequate remedy is available to the applicant.
(5) The order sought will be of some practical value or effect.
(6) The Court in the exercise of discretion finds no equitable
bar to the relief sought.
https://atimmigrationlaw.com/how-can-a-writ-of-mandamus-help-with-your-immigration-application
Is My Application Eligible for a Writ of Mandamus?
You must meet specific legal requirements before a court is prepared to issue a writ of mandamus. According to The Canadian Bar Association, these are:
- There must be a public legal duty to act
- The duty must be owed to the applicant
- There is a clear right to the performance of that duty, in particular:
(b) there was
(i) a prior demand for performance of the duty;
(ii) a reasonable time to comply with the demand unless refused outright; and
(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
(4) No other adequate remedy is available to the applicant.
(5) The order sought will be of some practical value or effect.
(6) The Court in the exercise of discretion finds no equitable
bar to the relief sought.
https://atimmigrationlaw.com/how-can-a-writ-of-mandamus-help-with-your-immigration-application
Another great article, about Murad v Canada, how citizen applicant kicked the soft spot of CIC bureaucrats and forced them to naturalize him. Great story.
https://canliiconnects.org/en/summaries/42082
Here is an excerpt:
https://canliiconnects.org/en/summaries/42082
Here is an excerpt:
- "Suspicions that are not based on objective facts are not reasonable suspicions...they are merely suspicions and they cannot justify the behaviour in this case...[paragraph 59];
- "...where there is misbehaviour on the part of some state actors who, on this record, have not provided any explanation, the discretion should be exercised in favour of an applicant [paragraph 60];
- "What has taken place after the application for mandamus was filed is not relevant to this application" [paragraph 61];
- The "scheme of the Citizenship Act" favours "diligence in the granting or denying of citizenship [paragraph 62];
- "Surely the rule of law commands that the respondent be bound by the law and that the applicant be entitled to the benefit of the law" [paragraph 68];
An interesting case though, will find time to read in deatil not just summary. However, immigration matter is a case-by-case. Not everyone ready to take risk.
If you read it carefully, he hasn't done anything wrong or disqualifying of getting a citizenship. Yes, he didn't file taxes for few years, but he was studying to get his professional license during that time. Yes, he was living in and out of Canada, but nothing in law says you can't do that, as long as you meet RO.
He applied for citizenship and the immigration judge who interviewed him recommended him for approval.
But then some high school grad bully (some bullies and misfits with little skills and abilities to grow intellectually go to work in low grade government jobs where stupidity is rewarded by stable salary, and which allows them to feel powerful and in control of other people's lives), grew "suspicious" of the gaps in tax filing and saw "intent" to reside abroad in a pattern of travels outside of Canada, and decided to just wait until applicant was in breach of RO (for that purpose she even cancelled scheduled interviews and got other CIC employees collaborate), to then file the report for breach and get this guy deported from Canada. Fortunately, Murad was highly educated, confident and self-reliant guy who wasn't intimidated by brainless high-school bully and decided to take his matter before Federal court, which ruled in his favor and found lots of errors in CIC's actions.
P.S. I know that not everyone is willing to take a risk, and that's what IRCC is banking on. I think there are two additional reasons (aside from the common aversion to risk taking) that stops majority of people from being resolute and demanding higher court to decide their fate.
First, there is general distrust that higher government authority will side with the immigrant against its lower body that made unfavorable decision, even if that decision was unfair and not according to the letter of law. Another reason, I suspect, is that at least some immigrants have guilty consciousness and know that they committed one or another wrong in the past (including in getting their PR status), and they are fearful of being a subject of intense scrutiny which comes with court action and may get them into more trouble than they can handle. But my take is: you are up against rigged and unfair system that favors powerful and scorns the weak. They don't always play fair. You should be aware of it from the start and make sure you live your live in such a way that no amount of scrutiny can frighten you. At the same time, I believe the life and whatever material goods it brings are worthless without you feeling whole, dignified and free among your equals. It always worth the risk to put everything at stake and demand that your fate be decided one way or another, rather than allow anyone to torture you in infinite chambers of Inquisition, as if you were tragic Greek hero living to amuse malicious Olympian Gods. Challenge them. Even if you fall, it will be worthwhile. And that's how in the long run you bring them down, like Prometheus did. No matter what the price he paid for Fire he took from the Gods.
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Here is the link to Murad's Mandamus case. All citizenship applicants stalled by IRCC should read.
https://www.canlii.org/en/ca/fct/doc/2013/2013fc1089/2013fc1089.html
https://www.canlii.org/en/ca/fct/doc/2013/2013fc1089/2013fc1089.html