An important question,please

[Fulltoss]

Suppose a family with two young children arrive at Pearson with valid PR Card but in breach of residency obligation and are reported and removal order is issued.However, they decide to appeal against the removal order which as I understand will take about 18 months to be heard and concluded.

During the waiting period till the appeal is heard:
1. Will they be allowed to stay in Canada as PR
2. Are they elligible to be employed
3. Can the family apply for the monthly Canadian Child Tax Benefit and will they receive the paymentts
4. If yes to #3 and if the appeal is rejected should the family return the CCTB received so far
5. If no to #3 and if the appeal is accepted, will the CCTB be paid with retrospective effect
6. In the context of best interests of children, will the CBSA officers consider the presence of young children alongwith the family and hence not issue a removal order.
Excuse my numerous questions,but am just trying to find out,please

Excuse me for the numerous questions, but am looking for answeres to enable my decsion to return to Canada

 

[Fulltoss]

Any thoughts,please, gentlemen

 

[dpenabill]

Suppose a family with two young children arrive at Pearson with valid PR Card but in breach of residency obligation and are reported and removal order is issued.However, they decide to appeal against the removal order which as I understand will take about 18 months to be heard and concluded.

During the waiting period till the appeal is heard:
1. Will they be allowed to stay in Canada as PR
2. Are they elligible to be employed

Yes to both. If the appeal is timely filed, the Removal Order is not enforceable unless and until the appeal is finally determined, and lost. So long as the Removal Order is not enforceable, PR status continues.

3. Can the family apply for the monthly Canadian Child Tax Benefit and will they receive the paymentts

I do not know the answer to this one. That said, I believe entitlement to the benefit depends on specific qualifying conditions (which may include residency requirements, or conditions in practice dependent on residency -- this would not be about the PR residency obligation, but specific to qualifications for the Benefit itself) and is not affected by the issuance of a Removal Order (unless and until the Removal Order becomes enforceable, which means PR status is lost, and the individual is then a Foreign National).

4. If yes to #3 and if the appeal is rejected should the family return the CCTB received so far
5. If no to #3 and if the appeal is accepted, will the CCTB be paid with retrospective effect

Again, I do not know, but I believe a pending Removal Order has no effect on eligibility for the Benefit. That is, I believe that the answer to these questions is not directly affected by the issuance of a Removal Order, although the factual situation leading to the issuance of the Removal Order may itself be relevant to Benefit entitlement.

6. In the context of best interests of children, will the CBSA officers consider the presence of young children along with the family and hence not issue a removal order.

Yes, but if those children are not Canadian citizens, and have been living outside Canada, that indicates minimal hardship is imposed by not allowing them or their parents status to live in Canada. That said, a lawyer is the far better source for information about how H&C grounds are considered.

 

[Fulltoss]

Thanks for the answers.
Am landing in Canada shortly with family.
Have all documents to support why I could not meet RO.
Also several papaers to show that I had strong intent of returning to Canada.
However, I am very very nervous to meet the officers inspite of having genuine reason.
What is to be expected.
Will they be compassionate/understanding
Will they be curt/harsh or how.
How to answer without weakening case.
Am a bundle of nerves right now.
Could someone help me out... Please

 

[FredCanada]

Hi

Please do not be overly worried. Let us know once you get into Canada, I am thinking everything should be ok. Best of Luck

Fred

 

[dpenabill]

Be sure to be prepared to make H&C arguments, or otherwise explain why you were outside Canada and why this is your earliest opportunity to return. Be sure to have any documentation supporting this (such as, for example, pertinent medical records if explanation involves a medical reason) in your hands (not in checked baggage), so you have easy access to it if your questioned about residency.

Even though yours is just one example, and how it goes will be mostly dependent on all the various circumstances particular to your specific situation, your report about how this goes will nonetheless provide some context for others. Thus, it would be helpful if you could report how this goes and include in that the extent to which you were in breach of the RO before arriving at the POE. Additional information, such as whether or not there were any residency related questions (if, for example, you are just waived through without a secondary examination), or the extent of residency questioning if you are referred to secondary . . . and of course whether or not, if referred to secondary, it results in a 44(1) report, and if it results in a Removal Order. Thanks.

 

[Fulltoss]

Thanks for the doses of strength. Will sure report asap

 

[Fulltoss]

One more question, please(seems endless )

In case I have to appeal, could i have details of experienced lawyers whom i can contact.
Normally how much does the appeal process cost
And how long does it take to conclude

 

[Fulltoss]

Help please !

 

[dpenabill]

Finding a good lawyer is not easy.

My last personal consultation with an immigration lawyer was nearly seven years ago, and she was the only one in town, the only one for many hundreds of kms in any direction. That was a consultation, not representation.

For representation, I would research the Federal Court decisions (at the government site or at CanII) for names of lawyers who appear to have done a good job for their clients.

For representation in an appeal of a Removal Order, I would expect the cost to be into the thousands of dollars. How many thousands I don't know.

I do not know how long the appeal takes. There is an appeal to the IAD first. My sense is that can take up to a year or so, but can be longer. In some cases, an application for leave to appeal to the Federal Court may also be made after that.

BEST BET is get familiar with what is a good H&C argument and be prepared to make your best H&C argument at the POE upon arrival.

That is, best bet is persuade the POE officers you had good reasons for not getting to Canada sooner, and avoid being issued a Removal Order.

Chances depend on many things, but overall the less in breach (the sooner you come to Canada) and more obvious your intent to come to Canada as soon as possible, to settle in Canada, the better your odds.

 

[Fulltoss]

In one of the posts here, i read that when a PR lands in breach of RO a report is automaticaly generated and the removal order is sent by post automatically. Thus doee it mean that the CBSA officer will not generate the report and will not refer to the second officer (IAD officer) for the PR to place his argument.Could a learned person provide information as to how actually are things during landing at Pearson's.

Am a nervous wreck now

 

[dpenabill]

In one of the posts here, i read that when a PR lands in breach of RO a report is automaticaly generated and the removal order is sent by post automatically. Thus doee it mean that the CBSA officer will not generate the report and will not refer to the second officer (IAD officer) for the PR to place his argument.Could a learned person provide information as to how actually are things during landing at Pearson's.

Am a nervous wreck now

Note: I am no expert. I cite a number of sources below. While I have accumulated quite a lot of information and understanding, I am not formally educated or trained or experienced in these matters.

For, as you say, a learned person's input, you need to talk to a licensed legal professional.

- - - - - - - - - - - - - - - -​

I assume it was in another topic you read that when a PR in breach arrives at a Canadian POE, "a report is automaticaly generated and the removal order is sent by post automatically."

That is only one of the alternative scenarios a PR arriving at a POE might encounter.

It is possible that a PR in possession of a valid PR card will not even be questioned, upon arrival, about compliance with the PR Residency Obligation.

The longer the PR has been abroad, however, the greater the risk there will be questions about compliance with the PR Residency Obligation.

While technically a PR can decline to answer questions about compliance with the residency obligation at the POE (technically the POE officers are obligated to allow the PR to enter as soon as identity and PR status are ascertained), for a PR who has failed to meet the PR RO, who has any decent H&C argument, that PR's best chance is to persuade the POE officers he/she deserves to have the chance to establish a life in Canada. That is, if the POE officer identifies a PR RO issue, it is usually (not always) in the PR's best interests to be fully cooperative and to try and persaude the officers that he fully intended to live in Canada and is returning to Canada at the earliest practical opportunity to do so.

In any event, there are multiple possibilities regarding what will happen at the POE, upon arrival, if the returning PR is questioned about compliance with the PR RO and it is readily apparent the PR has not complied with the requirement to be in Canada at least 730 days within the relevant time period (that is, within the immediately preceding five years, as of that day, unless the PR became a PR within the preceding five years).

These include (again, if the POE officer identifies there has been a failure to comply with the PR RO):

-- PR issued a caution (warning, admonition), with no further action (a flag will almost certainly be put in the PR's FOSS record as a notation of this); in this instance the PR retains full status, time in Canada after this will count toward meeting the PR RO, but the PR should NOT apply for a new card until actually in compliance with the PR RO

-- PR issued a caution and a referral or notice is sent to the local CIC office; the local CIC office may or may not commence an investigation or otherwise initiate a residency examination (obviously this too will be noted in FOSS); time in Canada after this counts so long as the local office does not issue a 44(1) report or a Removal Order . . . if CIC decides to pursue an inquiry or investigation, the PR will be required to submit information and documentation about compliance with the PR RO and if CIC is not persuaded that the RO was met, or that there are not sufficient H&C grounds to excuse the breach, a Removal Order will be issued

-- a 44(1) report is issued, concluding that the PR is in breach of the PR RO and is thus inadmissible to Canada. In this case, the PR will still be allowed to enter Canada but time in Canada after this will not count toward meeting the PR RO. My sense is that this is most often immediately followed by a supervisor reviewing the report and deciding whether or not to issue the Removal Order . . . and that usually (but not necessarily always) this is immediately delivered to the PR, there at the airport. My sense is that this is particularly true at Pearson.

-- it is possible, however, that the POE officer does not issue the 44(1) report at that time, allows the PR to enter, and the officer completes the report later . . . in these instances I am not so clear about the procedures and practices followed, but I believe a copy of the report can be mailed to the PR's last declared address in Canada.

My understanding is that the PR should have an opportunity to speak directly to the "Minister's Delegate" (again, at a POE this is usually a supervisor for the officer issuing the 44(1) report), an opportunity to explain, to offer H&C reasons.

Since how these things go will vary greatly from one individual to the next, depending on the particular situation, the PR's history, the extent of the breach, and many other factors, how it has gone for one or ten others is not particularly illuminating as to how it will go. IT-DEPENDS.


REFERENCES:
While they are rapidly becoming outdated, CIC's Operation Manuals regarding these procedures are still available at the CIC web site. Understanding what the manuals mean, and applying them to a particular case, can be difficult without context, without having some experience regarding actual cases and seeing examples of how these procedures and practices were actually applied to others.

In any event, the manuals are still available:

For information about admissibility proceedings generally, see ENF 3 Admissibility, Hearings and Detention Review Proceedings.

For information regarding POE examinations (guidelines for POE officers conducting secondary interviews regarding immigration matters), see ENF 4 Port of Entry Examinations.

For specifics about the writing of 44(1) Reports (PR inadmissibility reports), see ENF 5 Writing 44(1) Reports

For the review of 44(1) reports (that is, for the process in which it is determined whether or not to issue a Removal Order based on a 44(1) report), see ENF 6 Review of reports under A44(1).

For policy, procedure, and practice in adjudicating PR status, that is, for the ultimate decision-making process in which PR status can be determined to be lost, see ENF 23 Loss of Permanent Resident Status

In the latter, section 7.7, beginning on page 19, discusses H&C determinations, including what factors are considered. Some factors are very broad. And again, a PR's best shot is often (if not usually) in persuading the POE officer to give them a chance, to not even issue a 44(1) report . . . and there are a number of reports suggesting that for PRs in possession of a PR card, and a reasonable explanation why they could not come back to Canada sooner despite fully intending to return and settle and live in Canada, sometimes, not always, but sometimes POE officers can be surprisingly lenient.

The latter is why I said, in my previous post:

BEST BET is get familiar with what is a good H&C argument and be prepared to make your best H&C argument at the POE upon arrival.

That is, best bet is to persuade the POE officers you had good reasons for not getting to Canada sooner, and avoid being issued a Removal Order.

 

[Fulltoss]

Thanks a ton for the excellent reply

 

[Fulltoss]

Was only concerned that will I be given a chance at all to explain my situation at Pearsons.
Or will I be waved over with no knowledge that a report and removal order have been generated.
Please clarify this aspect alone

 

[dpenabill]

Was only concerned that will I be given a chance at all to explain my situation at Pearsons.
Or will I be waved over with no knowledge that a report and removal order have been generated.
Please clarify this aspect alone

Yes, if the POE officer is concerned about residency compliance, you will be asked questions and given an opportunity to explain your situation.

Best chance is to persuade that officer you came to Canada as soon as reasonably practical and you are committed to settling in Canada.

If that officer is not satisfied, however, and issues the inadmissibility report, you should also be given an opportunity to explain your situation to the officer who will decide whether or not to issue a Removal Order.