Another very long post:
To be clear, the two cases I cited (from among many, many IAD Removal Order cases reported and the occasional Federal Court case) were not at all about H&C determinations, but rather were cited to illustrate that
even PRs in compliance, or at least arguably in compliance, sometimes are issued 44(1) Reports and Removal Orders at a POE upon returning, corroborating forum reports of PRs with currently valid PR cards also being examined, reported, and issued Removal Orders
at a POE (like the one from this past Saturday I referenced in particular) . . . all of which clearly illustrates that the procedures outlined in ENF 4, 5, and 6 are indeed employed by CBSA at a POE.
The OP's report here clearly indicates an examination at the POE that addressed his PR status (highlighted more below).
Thus, to my view this indicates the examining CBSA officer evaluated this individual, upon arrival in Canada, as to admissibility. While many returning PRs are not subject to much if any scrutiny regarding admissibility upon returning to Canada, my strong sense is that if they are (and the OP here appears to have been), CBSA does not simply waive through a person who appears to be in breach of the PR Residency Obligation. To do so would be a breach of their duty, since it is explicitly their duty to screen for and identify inadmissible PRs.
Rather, my sense is that there are many occasions in which a CBSA officer identifies a PR Residency Obligation issue and then (as the manuals prescribe) weighs the factors and circumstances in that particular instance, and if in balancing the various considerations, the scales tip favourably toward the PR
deserving an opportunity to retain PR status, the individual is allowed to enter
without a 44(1) Report being issued. In practice, what I have observed is the examining officer often consults with a supervisor before making close or difficult calls of this sort (and if it is decided to issue a report, it appears that often that supervisor is also the so-called "Minister's Delegate" who then decides whether to issue a Removal Order, and it probably should not be done this way since the supervisor is supposed to be exercising independent judgment as the "Minister's Delegate," a form of review, when in practice the supervisor has probably already decided the examining officer should go ahead with making the 44(1) Report).
In any event, it appears very likely to me that this process happened when this OP arrived at the POE. Thus, it appears to me that at least an informal assessment was already made, the decision being in the OP's favour, that is, that the OP was
deserving of an opportunity to maintain his PR status.
Odds are high (almost certain) that a FOSS note (NCB entry) was made, so the OP is flagged. Beyond that it gets far more difficult to guess whether a referral was sent to the local CIC office, or if there is a referral whether that will result in CIC pursuing a Residency Examination. It is difficult to guess whether the FSW PR visa application will trigger a Residency Examination. My sense, however, is that what amounted to, in effect, being given a
pass by the examining CBSA officer, probably continues to get the OP a pass unless and until there is some other event triggering a Residency Examination. For example, the OP should
NOT apply for a new PR card until the 730 obligation is clearly met. If the OP marries a girlfriend not a Canadian, the OP should not sponsor her for PR until having spent more than 730 days in Canada.
The assessment of various H&C factors specifically for this OP is a separate matter.
Again, I have avoided delving directly into that other than what I perceive at a glance (highlighting significant ties in Canada including family members who are Canadian citizens, periodic trips to Canada reflecting ongoing connection to a life in Canada, and not knowing how extensive the shortfall from 730 days is). Obviously there are negative factors, like taking a job abroad after completing his studies, rather than then returning to Canada.
Again, I do not know how CIC will decide to proceed
IF CIC initiates an inquiry into this OP's compliance with the Residency Obligation.
H&C cases tend to be rather tricky, and they are almost always very specific to the individual factors and circumstances in the particular case.
Outline of reasoning based on what happened upon arrival at the POE
We do know (assuming the OP's report is accurate) that this individual was
not issued a 44(1) Report (and note that if there was a 44(1) report it would have been delivered to him at the POE; the 44(1) report should not be confused with a letter, referral, alert, or notice otherwise possibly sent to local CIC office).
We know that, pursuant to their duty and obligation, CBSA officers will issue 44(1) Reports to returning PRs the CBSA officer identifies as in breach of the Residency Obligation, at least in the absence of H&C considerations weighing in favour of the PR retaining PR status (this was what was illustrated by the cases cited in my previous post). (Acknowledgement: there is disagreement as to the extent to which CBSA officers will do this, some asserting that CBSA officers will routinely waive into Canada returning PRs known to be in breach and lacking H&C reasons justifying retention of PR status.)
We know that upon arriving in Canada, at the POE the OP was specifically identified as a returning PR, a person with PR status, and as one who had been abroad for a time suggesting to the OP he had already lost PR status.
And we know that at the POE he was advised he "should look into it" (the question of his PR status), a notation was made in his passport that he was entering Canada as a PR, and then he was simply allowed to enter Canada . . . and again apparently
no 44(1) report being issued.
We can readily infer that a NCB entry was made in FOSS, at a minimum.
All the above leads to me to conclude,
probably not definitively, that the examining CBSA officer did his or her duty, conducted an interview sufficient to satisfy himself or herself that this OP
deserved to be allowed entry without issuing a 44(1) Report for inadmissibility. And to my view that is a pretty good clue about how this will go even if there is a Residency Examination, acknowledging however (as I have several times now) that this is about odds at a glance, not based on an actual assessment of the relevant factors in detail . . . and further acknowedging, with emphasis, that how it goes
IF there is a residency examination will
depend on the totality of the circumstances.
But again, there is no real need to drill deeply into the H&C factors at this stage. There is no residency examination yet being conducted. At this juncture there is no pending residency case.
Among significant aspects of this, the OP's time in Canada now counts toward compliance, now adds to any of the time he was in Canada on holidays in the last five years, and even if it does not rise to the level of meeting the PR RO before a formal Residency Examination is conducted (the date of which will establish what five years count), it increases the weight of the time in Canada factor . . . and gives the OP time to find a job and be employed in Canada which will be another Canadian-tie, and evidence of establishment in Canada factor weighing positively in the
balancing process.
I do not know what the current timelines are for CIC even opening up a FSW application. There is no worry that that application will trigger a Residency Examination until
after that happens, and then (beyond the summary rejection of the FSW application due to ineligibility) the worst case scenario is that the local office is sent a referral, and the local office decides whether to pursue a residency examination, all of which would take time, usually quite a lot of time . . . and while I am way, way shy of confidence, my guess is that despite the possibility the FSW application could trigger a Residency Examination, it is more likely this too only results in a flag in GCMS or FOSS (amounting to the same thing in effect), which will have relatively no impact if there are no other events involving contact between the OP and either CBSA (no trips abroad and then arrivals at a Canadian POE for example) or CIC (no application to sponsor his girlfriend for Permanent Residency) and will be of no significance at all if in the meantime 730 days pass with the OP staying in Canada (well, if the OP were to apply for citizenship in the next four or five years, the flags in the system would likely be noticed and considered in that context).
Note regarding the Alsayegh Case:
The
Alsayegh case is not a Removal Order case. It is a citizenship case. It is a case in which CIC summarily terminated the PR's citizenship application prior to his taking the oath, based on the fact that the PR had been issued a Removal Order and was therefore prohibited from a grant of citizenship.
I cite it here because it is an actual, documented case, in which a returning PR was examined regarding residency at a POE upon returning to Canada and issued, there in the airport, both a 44(1) Report and a Removal Order. It clearly illustrates that this practice is not merely what ENF 4, 5, and 6 prescribe, but is an example of what actually does happen at a POE when a CBSA officer believes a returning PR is in breach of the PR Residency Obligation. This corroborates the various anecdotal reports I have seen, including the one posted just this past Saturday, by other PRs, including PRs in possession of a valid PR card, receiving Removal Orders at a POE when a CBSA officer concludes the returning PR is in breach of the PR Residency Obligation.
In fact, the Federal Court did not address the validity of the Removal Order in the
Alsayegh case, but rather addressed the fact that CIC had no authority to summarily terminate an application after a Citizenship Judge had already approved the grant of citizenship.
General Observation about Removal Order IAD cases:
There are numerous IAD decisions reported regarding PRs who failed to comply with the PR RO. It may be difficult to wade through them for cases specifically about Removal Orders issued by a "Minister's Delegate, the POE cases, because there are so many more cases which are appeals from the denial of an application for a PR Travel Document, and there are, of course, also a significant number of those cases triggered by a foolishly made premature application for a new PR card (PRs in breach who apply for a new PR card, and are identified as in breach by CIC and then subjected to removal proceedings). But even the PR Travel Document cases often go into some depth about the various factors considered, and the weight given those factors, in assessing whether there are H&C grounds justifying retention of PR status.
Anyone who reads even a dozen or so of these cases should readily recognize how very individual, case-specific, the determinations are.
It is correct, however, particularly for cases that reach the Federal Court, there is a presumption that the PR Residency Obligation is inherently very liberal and intended to reasonably accommodate most circumstances and contingencies. That is, that the threshold for retaining PR status (just 730 days in five years) is low enough that only unusual or very exceptional circumstances will justify what amounts to a waiver of the RO.
A more in-depth review of both cases and anecdotal reports, reveals (clearly to my view) that generally the lower in the heirarchy the decision-maker is, the more lenient . . . except in certain embassies, there appear to be some embassy based officers deciding PR Travel Document applications who are particularly tough.
That is, that the easiest officer to persuade that there are H&C reasons justifying retention of PR status, the easiest officer in the chain, is usually the examining officer at a POE. And this explains why there are a significant number of anecdotal reports of PRs questioned about residency at a POE, concerns identified, but the examining officer allows entry without making a 44(1) Report. The next easiest officer appears to be the supervisor at a POE, the "Minister's Delegate," who reviews the 44(1) Report and decides whether or not to issue a Removal Order. Note, I don't think I have seen, in watching reports in several forums like this one, including this one, more than one or two instances where a 44(1) Report was issued and a Removal Order not issued, but it is my impression this is because the supervisor is often, if not usually, consulting with the examining officer in the decision-making about whether or not to issue a 44(1) Report in the first place . . . and perhaps these two are relatively similar in how strict or lenient they are.
Embassy decision-makers appear to be more strict, tougher, than POE officers, but as noted above, it also appears (based on cases in which the appeal is won by the PR) that there are certain embassies which are particularly strict and tough.
IAD appears to be less forgiving than the POE officers (examining officer and supervisor-Minister's delegate), but significantly more forgiving than the Federal Court.
It is in Federal Court cases one sees the hardest line, that the PR RO is so inherently lenient (and it is, a PR can live abroad most of the time indefinitely and still retain PR status by being in Canada just 40 percent of the time) that if the Minister's Delegate and IAD determined there were insufficient H&C grounds to warrant retention of PR status, PR status is lost.
Thus, best time to make one's case, if relying on H&C reasons to retain PR status, is at a POE and with the examining POE officer (in secondary). This is part of why so many PRs in breach will attempt to reach a POE, such as by traveling via the U.S., rather than applying for a PR Travel Document in an embassy abroad (well there is that but there is also the presumption, for PRs without a valid PR card, that a PR abroad who does not have a valid PR card in possession is presumed to not have valid PR status). If pleading H&C grounds does not succeed at the POE, no reason to panic; while IAD panels tend to be more strict, the scope of "discretionary relief" afforded is sometimes remarkably liberal even at the IAD. There are, however, few requests for judicial review of negative IAD decisions, which I believe is due to lawyers telling clients the truth about the poor odds at the Federal Court. A number of justices in the Federal Court have overtly expressed great reluctance to overturn decisions by the IAD affirming loss of PR status if, as they say, the decision was legally correct (meaning the PR had less than 730 days presence, and was relying on discretionary relief).
In any event, in almost any application to CIC there is some consideration (directly or indirectly, sometimes well below the surface) for whether or not the applicant
deserves what is being requested. But for determinations as to whether or not a PR should be allowed to retain PR status, whether or not the PR
deserves to be allowed to retain PR status is an explicit and, I think, huge factor. This is a very, very difficult factor to define or explain, impossible to quanitify, and it is so very dependent on impression and how all the various other factors fit together.
I have often said that H&C determinations are very tricky. Anyone who can afford the assistance of a lawyer when faced with a process in which H&C factors loom as deciding should probably, at the very least, obtain the advice of a lawyer, and preferrably the assistance of a lawyer. I may often venture an impression, like I have regarding the OP here, as to vague odds (recognizing that some cases are obvious losers on this issue), but I try (and always should) to couch that in a caveat that how it actually goes will depend on many, many factors, the totality of circumstances in the case, and is not at all easy to predict, and for sure there are no guarantees.
This is long, long way around to explaining why my inclination is that the OP here has good odds overall.
This should not be confused, however, with the more simple and I think fairly clear observation about the course of action the OP
probably should take for now: stay the course, find a job and live in Canada, and if correspondence arrives from CIC indicating that a residency examination will be conducted, ride the process out, make the H&C case as best as the OP can, get the help of a lawyer if that can be afforded. I am fairly sure the FSW application will go nowhere. No point in pursuing that avenue again unless and until CIC does pursue removal proceedings and the OP loses (taking it to at least an IAD appeal if it comes to that), that is, unless and until after the OP has formally been adjudicated to lose PR status.
Regarding "admissibility" of a PR compared to a Foreign National:
Under IRPA PRs are Canadians, Canadian Permanent Residents to be precise.
Foreign Nationals are everyone who is not a Canadian, not a Canadian citizen or a Canadian Permanent Resident. (See definitions in IRPA)
PRs are not eligible for status that is only available to Foreign Nationals. A PR cannot be an eligible applicant for a PR visa in any class, for example.
Technically a PR is not eligible for
visitor status, be that as a visitor from a visa-exempt country (such as the UK), or as someone applying for a TRV from a country which is not visa-exempt.
In other words, the OP was not admissible as a visa-exempt country visitor, because the OP is a PR who is not eligible for visitor status.
This can appear to be confusing because, at least in the past, many, many PRs from visa-exempt countries used their visa-exempt passports to board a flight to Canada (the visa-exempt passport satisfying the airlines that the traveler has authorization to enter Canada and should be allowed to board the flight), and approached the PIL at the POE as though they were ordinary visitors from a visa-exempt country, displayed the visa-exempt passport, and were waived into Canada. This probably still happens. But technically they do not have visitor status despite the POE waive-through. And like the OP here, which I think is more and more often the case as the technology has improved, if the traveler is identified by POE officers as a PR, that will be the basis upon which the traveler's admissibility is assessed.
Reminder, the OP here reported that there was a notation on the stamp in his passport regarding his entry as a PR.
Until recent changes in IRPA and the Regulations (expanding and making surrender of PR simpler), a PR identified at the POE as inadmissible due to a breach of the residency obligation was, in practice, the usual situation in which a PR "surrendered" PR status. This was often precisely because the PR did not contest being inadmissible, did not want appeal a Removal Order, and wanted to enter Canada as a visitor (usually for longer than the time period for appealing a Removal Order), and for CBSA to allow entry as a visitor, the PR's status as a PR had to first be formally removed. (If the PR accepted the Removal Order and did not appeal, the Removal Order becomes enforceable . . . I think I recall this is in 30 days, may be 60 . . . at which point it would be illegal for the individual to remain in Canada.)
Note: the operational manuals, including those for Enforcement, are not being consistently updated, and often fail to reflect many of the more recent changes to IRPA and the Regulations. They remain useful as general guidelines, particularly to the extent they reflect underlying factors and considerations driving policy-based practices, but are increasingly out-of-date as to specific procedures and practices.
Bottom-line: no, the OP was not admitted into Canada based on admissibility as a visitor from a visa-exempt country, even though apparently that is how the OP traveled to Canada (showing the airlines his visa-exempt passport).
But you are right to question whether the examination at the POE constituted even an informal residency examination and a decision to allow entry without issuing a 44(1) Report based on H&C reasons which justify allowing the OP to retain PR status. In my outline of reasoning above I note that given the overt identification of the OP as a PR and the discussion about his PR status, I think that this encounter
probably but not definitively constituted such a decision. It might not have. It probably is not clear to the OP whether it did or not. All the OP was probably told was he could go ahead and enter, and as I noted above, that he "should look into" his PR status.
This does not change the situation. The OP is still, at this time, a PR, still a PR in Canada without having been issued a Removal Order. The path forward is to live and work and stay in Canada as a PR. And if CIC contacts him to pursue a Residency Examination or Removal Proceedings, to deal with that process
IF and when it happens.
