Best course of Action

[Immiman]

I have completed 597 days of staying in 5 years and do not meet my RO based on H&C grounds. My PR expires on Jun 2016. I cannot stay 2 years staright without flying out of canada. What is the best course of action?
- Head to Canada and apply for renewal which will trigger investigation and make and appeal within 30 days?
- Wait till PR card expires and I can apply for travel document which will be refused then appeal. How long does it take for the appeal to come up?

If I decide to relinquish my PR, is there any rule saying I will have to wait for certain period before I can reapply for PR? If I reapply for immigration does previous PR have a negative impact on decision making process?

Regards,

 

[dpenabill]

I have completed 597 days of staying in 5 years and do not meet my RO based on H&C grounds. My PR expires on Jun 2016. I cannot stay 2 years staright without flying out of canada. What is the best course of action?
- Head to Canada and apply for renewal which will trigger investigation and make and appeal within 30 days?
- Wait till PR card expires and I can apply for travel document which will be refused then appeal. How long does it take for the appeal to come up?

If I decide to relinquish my PR, is there any rule saying I will have to wait for certain period before I can reapply for PR? If I reapply for immigration does previous PR have a negative impact on decision making process?

Regards,

Additional facts and circumstances are important. I am no expert and not qualified to give personal advice, so I cannot even begin to suggest what you do.

I can offer the following:

The sooner you come to Canada the better odds you have of not being issued a 44(1) Report at the POE. Key factors regarding this include whether this is still within the first five years since you landed and became a PR, and if so, what the date of landing was (or, to the same effect, what will be the fifth anniversary of the date you landed).

For example, if you landed in June 2011 after June 7, and you arrived in Canada tomorrow, and you have already spent 597 days present in Canada since landing, you would still be in compliance with the PR RO. How soon you arrive versus how much more before June 7, 2011 you landed dictates how close to compliance you are, and the closer to being in compliance you are the better your odds are of being allowed to enter without being issued the 44(1) Report (for inadmissibility due to breach of PR Residency Obligation).

Thus, obviously, the longer you wait to come to Canada, the greater the risk of losing PR status.

If this is not your first five years as a PR, the sooner you come the better, still, but my sense is that the POE examination entails a higher risk of scrutiny regarding compliance with the PR RO.

The sooner you arrive relative to the expiration date on your PR card, the better your odds.


"Head to Canada and apply for renewal which will trigger investigation and make and appeal within 30 days?"

Head to Canada, yes.

Then apply for renewal anticipating a full blown Residency Determination with a negative result? No.

Foremost, unless you arrive soon, the odds are high you will be screened for compliance with the PR RO at the POE and issued a 44(1) Report. No need to apply for anything more than applying for entry into Canada (by showing up at the POE).

If you are not issued a 44(1) Report at the border, you may not have to stay in Canada for another two full years to be eligible for a new PR card. It depends on the dates for when you were present in Canada. when those 597 days were. If they were mostly in 2011 and 2012, then that's a problem since each day here now will only be replacing one of those days back then, as those days fall more than five years past.

If most of your 597 days present in Canada have been since February 2013, you could reach the 730 day threshold of presence in just five or seven months, or so, assuming you arrive in Canada soon and are not issued a 44(1) Report. It would then take, after applying for the card, about another six months to obtain the new card. Not a good idea to leave in the meantime.


"Wait till PR card expires and I can apply for travel document which will be refused then appeal. How long does it take for the appeal to come up?"

This approach does not make much sense. The longer you wait to come to Canada the more in breach of the PR RO, the more likely an attempted entry would result in a 44(1) Report, or if you wait to apply for a PR TD the more likely the PR TD will be denied with little prospect of a successful appeal.

If you have H&C explanations, still the sooner you come the better.

If you have not been in Canada for more than a year, and a PR TD application is denied, you will most likely have to remain abroad pending an appeal, and you will most likely lose the appeal.

If you want to stay in Canada pending an appeal, the way to do that is to come to Canada (you can only fly to Canada so long as you have a valid PR card, unless you can obtain a PR TD), and when issued a Departure Order following the 44(1) Report, appeal that while remaining in Canada. That can take many months, to a year, sometimes longer.



"If I decide to relinquish my PR, is there any rule saying I will have to wait for certain period before I can reapply for PR? If I reapply for immigration does previous PR have a negative impact on decision making process?"

At this juncture (things are always subject to change), once you become a Foreign National (once there is a final adjudication terminating your PR status, or completion of the PR status relinquishment process) you can make a new PR application. There is no overt negative impact on this due to having had and lost PR status due to a failure to meet the PR RO.

 

[Immiman]

Additional facts and circumstances are important. I am no expert and not qualified to give personal advice, so I cannot even begin to suggest what you do.

I can offer the following:

The sooner you come to Canada the better odds you have of not being issued a 44(1) Report at the POE. Key factors regarding this include whether this is still within the first five years since you landed and became a PR, and if so, what the date of landing was (or, to the same effect, what will be the fifth anniversary of the date you landed).

For example, if you landed in June 2011 after June 7, and you arrived in Canada tomorrow, and you have already spent 597 days present in Canada since landing, you would still be in compliance with the PR RO. How soon you arrive versus how much more before June 7, 2011 you landed dictates how close to compliance you are, and the closer to being in compliance you are the better your odds are of being allowed to enter without being issued the 44(1) Report (for inadmissibility due to breach of PR Residency Obligation).

Thus, obviously, the longer you wait to come to Canada, the greater the risk of losing PR status.

If this is not your first five years as a PR, the sooner you come the better, still, but my sense is that the POE examination entails a higher risk of scrutiny regarding compliance with the PR RO.

The sooner you arrive relative to the expiration date on your PR card, the better your odds.


"Head to Canada and apply for renewal which will trigger investigation and make and appeal within 30 days?"

Head to Canada, yes.

Then apply for renewal anticipating a full blown Residency Determination with a negative result? No.

Foremost, unless you arrive soon, the odds are high you will be screened for compliance with the PR RO at the POE and issued a 44(1) Report. No need to apply for anything more than applying for entry into Canada (by showing up at the POE).

If you are not issued a 44(1) Report at the border, you may not have to stay in Canada for another two full years to be eligible for a new PR card. It depends on the dates for when you were present in Canada. when those 597 days were. If they were mostly in 2011 and 2012, then that's a problem since each day here now will only be replacing one of those days back then, as those days fall more than five years past.

If most of your 597 days present in Canada have been since February 2013, you could reach the 730 day threshold of presence in just five or seven months, or so, assuming you arrive in Canada soon and are not issued a 44(1) Report. It would then take, after applying for the card, about another six months to obtain the new card. Not a good idea to leave in the meantime.


"Wait till PR card expires and I can apply for travel document which will be refused then appeal. How long does it take for the appeal to come up?"

This approach does not make much sense. The longer you wait to come to Canada the more in breach of the PR RO, the more likely an attempted entry would result in a 44(1) Report, or if you wait to apply for a PR TD the more likely the PR TD will be denied with little prospect of a successful appeal.

If you have H&C explanations, still the sooner you come the better.

If you have not been in Canada for more than a year, and a PR TD application is denied, you will most likely have to remain abroad pending an appeal, and you will most likely lose the appeal.

If you want to stay in Canada pending an appeal, the way to do that is to come to Canada (you can only fly to Canada so long as you have a valid PR card, unless you can obtain a PR TD), and when issued a Departure Order following the 44(1) Report, appeal that while remaining in Canada. That can take many months, to a year, sometimes longer.



"If I decide to relinquish my PR, is there any rule saying I will have to wait for certain period before I can reapply for PR? If I reapply for immigration does previous PR have a negative impact on decision making process?"

At this juncture (things are always subject to change), once you become a Foreign National (once there is a final adjudication terminating your PR status, or completion of the PR status relinquishment process) you can make a new PR application. There is no overt negative impact on this due to having had and lost PR status due to a failure to meet the PR RO.

Thanks for taking your valuable time to answer my questions. I forgot to mention landed 29 April 2011 and left 16 December 2012 so on rolling 5 year wondow I would be in trouble and would not be able to meet the requirements. I used to have great job in Canada and was taking exciting french classes all this changed when my dad passsed away and then my mom's health also deteriorated. Then to make things much worse his business in UAE had huge debts. Since UAE does not have bankruptcy laws by law any heir would have been responsible for debts failing to pay one could have been imprisoned. I could have easily flown out and left UAE but my younger brother was there
who could have been imprisoned so I took it onto myself and paid for my mom's medical expenses and the debts for three years which I could not have afforded from Canada. I still need time to wrap up for once and for all so I was asking question which is the best course of action to take at the moment.

 

[dpenabill]

Thanks for taking your valuable time to answer my questions. I forgot to mention landed 29 April 2011 and left 16 December 2012 so on rolling 5 year wondow I would be in trouble and would not be able to meet the requirements. I used to have great job in Canada and was taking exciting french classes all this changed when my dad passsed away and then my mom's health also deteriorated. Then to make things much worse his business in UAE had huge debts. Since UAE does not have bankruptcy laws by law any heir would have been responsible for debts failing to pay one could have been imprisoned. I could have easily flown out and left UAE but my younger brother was there
who could have been imprisoned so I took it onto myself and paid for my mom's medical expenses and the debts for three years which I could not have afforded from Canada. I still need time to wrap up for once and for all so I was asking question which is the best course of action to take at the moment.

Even though your first post says you have no H&C case, it appears you may be able to fashion a potentially successful H&C case based on these circumstances. Again, the sooner you come to Canada the better your odds of persuading the POE officer you should be allowed to retain PR based on H&C reasons.

For information about Humanitarian and compassionate determinations relative to the enforcement of the PR Residency Obligation, see ENF 23 Loss of permanent resident status.

URL: http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
Link: Link to ENF 23 Loss of permanent resident status

In particular, see section 7.7, beginning on page 26.

Unfortunately you will have the problem about the previous days falling out of the calculation, as they become more than five years past. If you come to Canada, avoid being reported, and establish yourself in Canada, including employment, then your odds of successfully making the H&C case if necessary to later obtain a PR TD are improved substantially . . . assuming you go abroad only briefly. If you must go abroad for extended time periods, you might be better off relinquishing PR status and when you think you want to return to settle in Canada apply again.

It might actually help to get a 44(1) Report at the POE but then persuade the Minister's delegate (typically the reporting officer's superior) your H&C grounds should allow you to keep PR. That then would be a decision which should allow you to travel abroad for brief trips without running into a PR RO problem . . . you might even be able to apply for and obtain a new PR card in this situation. This might be worth trying. But if you were to try this, again the sooner the better.

 

[sammy123]

Even though your first post says you have no H&C case, it appears you may be able to fashion a potentially successful H&C case based on these circumstances. Again, the sooner you come to Canada the better your odds of persuading the POE officer you should be allowed to retain PR based on H&C reasons.

For information about Humanitarian and compassionate determinations relative to the enforcement of the PR Residency Obligation, see ENF 23 Loss of permanent resident status.

In particular, see section 7.7, beginning on page 26.

Unfortunately you will have the problem about the previous days falling out of the calculation, as they become more than five years past. If you come to Canada, avoid being reported, and establish yourself in Canada, including employment, then your odds of successfully making the H&C case if necessary to later obtain a PR TD are improved substantially . . . assuming you go abroad only briefly. If you must go abroad for extended time periods, you might be better off relinquishing PR status and when you think you want to return to settle in Canada apply again.

It might actually help to get a 44(1) Report at the POE but then persuade the Minister's delegate (typically the reporting officer's superior) your H&C grounds should allow you to keep PR. That then would be a decision which should allow you to travel abroad for brief trips without running into a PR RO problem . . . you might even be able to apply for and obtain a new PR card in this situation. This might be worth trying. But if you were to try this, again the sooner the better.

Thanks I wanted to follow up with some more questions , it seems at the moment I still have to complete some responsibilities and stay out of Canada. I was wondering if I head to POE and get 44(1) and provide dcuemtns to show my H&C. What doecumets they look for H&C usually?

 

[dpenabill]

Thanks I wanted to follow up with some more questions , it seems at the moment I still have to complete some responsibilities and stay out of Canada. I was wondering if I head to POE and get 44(1) and provide dcuemtns to show my H&C. What doecumets they look for H&C usually?

H&C cases are complicated. They are difficult.

I recently offered some detailed observations about what constitutes H&C reasons in the topic titled: "Appealing PR obligation - PLEASE HELP" In that topic I cited and linked some real cases where information about what factors matter and how they are considered are discussed.

But it is far better to consult with a licensed Canadian immigration lawyer. I am no expert. These cases can be very tricky.

Obviously, the sooner the PR returns to Canada, or attempts to return to Canada, the better. After all, one of the key factors considers the PR's attempts and efforts to return to Canada at the first available opportunity.

The facts in your particular situation matter. To be successful, the facts and circumstances of the H&C case must be unusual, so these are inherently not the kind of situation from which one can draw or rely on generalizations.

In particular, there are no generic H&C documents. There are no get-out-of-jail-free cards, so to say. H&C cases are very individual, personal facts specific cases.