Can PRs count time abroad with a Canadian spouse toward quota?

[toby]

Topic: Can Permanent Residents (PRs) count time abroad with a Canadian spouse toward their 730-day PR quota?

This topic has been discussed in other threads, but only as a secondary issue, buried under a topic heading that has nothing to do with a PR counting time abroad toward the PR quota. The purpose here is to bring the matter to the attention of any PRs who cannot meet the PR quota by spending 730 days in Canada per five-year period.

This topic is discussed thoroughly in Permanent Residency Obligations, under the topic Buying an Apartment in Canada to Meet Residency Requirements. Thanks go to Matthew for his excellent research on this complex and important issue, and to the many others like PMM who also contributed important information.

In brief, it does seem that a PR may count time spent abroad toward the PR quota as long as the PR was living with a Canadian citizen. It does not seem to matter whether the PR accompanies the citizen while abroad, or the citizen accompanies the PR – as long as they were living together abroad.

I say “seem” because in one court case the judge would have ruled against the PR (only humanitarian considerations led to a decision in favour of the PR), saying that it was the citizen who accompanied the PR, not vice-versa, and therefore the time abroad did not count toward the PR Quota. To understand this narrower, legalistic interpretation of “accompany”, go to

Smith v. Canada (Citizenship and Immigration), 2007 CanLII 67256 (I.R.B.)

All these cases can be looked up on http://www.canlii.org/en/index.php

Notwithstanding the Smith v. Canada case, several others DO allow the PR to count days abroad IF they were living with a Canadian citizen spouse. The most recent case was Li v. Canada (Citizenship and Immigration), 2009 CanLII 74606 (I.R.B.). Most compelling is the judge’s decision mentioning previous cases, and giving a clear rationale:

“I have looked at two former decisions of this Tribunal which considered this issue. While these decisions are not binding upon me, I consider them to be indicative of the manner in which this Tribunal has interpreted subsection 28(2) of the Act previously.[4] In Mkdsi and Abraham the panels held that the word “accompanying” is to be interpreted according to the common sense and ordinary meaning of the word which includes to “coexist” or “coexisting”.[5] There was no suggestion that the appellant and his wife were not living together in China during the relevant period. Therefore I conclude that the appellant was accompanying his wife.”

The point to take from this decision is that it does not matter who (citizen or PR) had the principal reason to be abroad; the only thing that matters is whether they were living together or not.

So, there are several court or panel decisions that allow the PR to count time spent abroad living with a Canadian spouse, and one that (Smith v. Canada) that worries about who accompanied whom. It would be nice to have 100% certainty on this issue, but we don’t.

There may be some PRs who wouldn’t mind the uncertainty, time, and expense of appearing in front of a panel, but I’d prefer to avoid the whole process if possible. Here’s how.

At the border, if an Immigration Officer is dubious that the PR has met the 730-day quota, have at the ready proof of the days spent abroad with the Canadian spouse, and refer the border officer to CIC Operational Manual ENF 23 Loss of Permanent Resident Status, page 18, section 7.5. Here’s the relevant section.


7.5. Accompanying a Canadian citizen outside Canada
R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.

For the purposes of A28(2)(a)(ii) and A28(2)(a)(iv), R61(6) defines a child as being a child of a parent referred to in those subparagraphs who is not and has never been a spouse or common-law partner and is less than 22 years of age.

Some may ask themselves why – given the clarity of the Manual – such cases ever go to court, but let that pass. I don’t know either. Maybe the PR did not know the manual, and maybe the Immigration Officer didn’t think to look at it. Who knows?

Of course, the easiest way is to spend the 730 days in Canada, but if that is not possible, have proof that the time abroad was indeed spent with a Canadian spouse, and have the Operational Manual (or the above abstract) at the ready. That should get the PR safely and peacefully through Immigration to the waiting arms of his or her family!!

 

[job_seeker]

GREAT post Toby

 

[AllisonVSC]

I agree...excellent post. I have read those impeded discussions relating to this topic in other posts. Thanks for the providing such clarity on the issue!

 

[sparkle]

Thanks a lot for the information....I have been confused about this for a while.
I am a Canadian PR and will be eligible to apply for citizenship in 2011. I am getting married this year and my husband lives just across the border (Detroit) while I will be staying here until 2011 in order to complete my residence requirement for citizenship and will apply for his Canadian PR. And then once I become a citizen, if I go and live with my husband in Detroit and commute to work in Canada everyday, he can still count it as days towards making his PR of Canada eligible even if he is not physically living in US.

 

[toby]

once I become a citizen, if I go and live with my husband in Detroit and commute to work in Canada everyday, he can still count it as days towards making his PR of Canada eligible even if he is not physically living in US.

If you change "living in US" to "living in Canada", then I believe you are correct.

I assume you both plan to live in Canada eventually; otherwise, why apply for his permanent residency?

 

[ShadowNell]

Hi, I know it's been a while since this topic has been brought up, but I think that my question fits perfectly in with this. I understand that days spent with your Canadian spouse outside of Canada can count towards your days accumulated for the necessary PR days. BUT can they also be counted towards the days needed to apply for Citizenship? My dearest and I are Animators, and we work and travel together always. But sometimes Animation work flatlines in Canada (as it's tied to world wide animation demands), and we will suddenly find ourselves working and living together in places like northern France (like right now). Will he be able to count the days outside of Canada towards his Canadian citizenship as long as he's living with me? We plan to try to always live and, if possible, work together, and Canada is where we ideally want to live and work at all times, but life is not ideal. Does anyone know if this will be possible? Thank you for your time! This forum has helped me answer SO many of my questions just by reading ones that others have asked, I'm truely grateful to all the people here helping others out! What a great community!

 

[sparkle]

If you change "living in US" to "living in Canada", then I believe you are correct.

I assume you both plan to live in Canada eventually; otherwise, why apply for his permanent residency?

Yes, that's correct. I meant "living in Canada"
We definitely plan on living in Canada, but until he finds a job here, he wouldn't wanna quit is previous job and move. Also, since I have a NEXUS, and will be a citizen, it will be easier for me to cross the border daily rather than him crossing.

For your question ShadowNell, I don't think you can count the days for citizenship, since when you file for it, they make sure you were phsycailly present in Canada for 3 years out of the 4 years preceding the time of your application. As long as you both are not away for more than a year, you should be good, but as far as I know, they want you to minus every single day you stayed out of Canada, even a short weekend trip to US for me, has to be recorded as 2 days out of country !! :-(

 

[ShadowNell]

Thanks for the reply, Sparkle! Well, that will certainly make things more difficult for us, but at least it works for the PR days, so we can wait to make a citizenship application until we've managed to make the required years! Then we won't have to worry and can follow each other wherever we have to go! Still, if anyone HAS been able to do this, or knows anything more about it, I'd love to hear about your experience! Good luck to all!

 

[annmarie-in-oz]

Hi and G'day from Down Under

Can someone help us? We are a happily married couple (I'm Canadian, my husband is Australian) who have been living in Australia for the past 15 years. We lived in Hong Kong before we moved here, and our first two children were born there. I became an Australian PR before we moved to Australia in 1994 and all our children are dual Canadian and Australian (the last one was born in Australia). I became an Australian citizen in 2000 so now I'm also a dual citizen.

Given that we probably one day live in Canada (Australia was meant to be for five years!) my husband applied for Canadian PR as the first step to becoming a citizen and joining the rest of his family as dual Canadian-Australians. We understood that he could 'serve his time' in Australia as was discussed in other postings.

But I've just noticed in his passport that his IM-1 visa has an expiry date of May 2012 on it. What does that mean? That he needs to get his citizenship papers sorted by that date? That he needs to go to Canada before that day? If that visa expires in 2012 and he has to reapply again, I'll scream as it was a huge nightmare getting it in the first place (he was required to get the police to do a fingerprint check from Hong Kong even though we lived there more than 10 years prior and shouldn't have had to do it as stated on the form --among many other hoops we had to jump through at considerable expense).

Anyway, can anyone shed some light on what we should do before I get on the phone to the Canadian embassy in Sydney and go on hold for five hours?

Thanks everyone.

 

[toby]

Hi, I know it's been a while since this topic has been brought up, but I think that my question fits perfectly in with this. I understand that days spent with your Canadian spouse outside of Canada can count towards your days accumulated for the necessary PR days. BUT can they also be counted towards the days needed to apply for Citizenship? My dearest and I are Animators, and we work and travel together always. But sometimes Animation work flatlines in Canada (as it's tied to world wide animation demands), and we will suddenly find ourselves working and living together in places like northern France (like right now). Will he be able to count the days outside of Canada towards his Canadian citizenship as long as he's living with me? We plan to try to always live and, if possible, work together, and Canada is where we ideally want to live and work at all times, but life is not ideal. Does anyone know if this will be possible? Thank you for your time! This forum has helped me answer SO many of my questions just by reading ones that others have asked, I'm truely grateful to all the people here helping others out! What a great community!

I don't think you can count days abroad toward citizenship, even where they are spent with a canadian spouse.

But, rather than accept my untutored opinion, please research that on this site; I have read about this before, but don't recall the details. Or, make it a separate post so that experts like Leon and PMM will take notice.

 

[toby]

Hi and G'day from Down Under

Can someone help us? We are a happily married couple (I'm Canadian, my husband is Australian) who have been living in Australia for the past 15 years. We lived in Hong Kong before we moved here, and our first two children were born there. I became an Australian PR before we moved to Australia in 1994 and all our children are dual Canadian and Australian (the last one was born in Australia). I became an Australian citizen in 2000 so now I'm also a dual citizen.

Given that we probably one day live in Canada (Australia was meant to be for five years!) my husband applied for Canadian PR as the first step to becoming a citizen and joining the rest of his family as dual Canadian-Australians. We understood that he could 'serve his time' in Australia as was discussed in other postings.

But I've just noticed in his passport that his IM-1 visa has an expiry date of May 2012 on it. What does that mean? That he needs to get his citizenship papers sorted by that date? That he needs to go to Canada before that day? If that visa expires in 2012 and he has to reapply again, I'll scream as it was a huge nightmare getting it in the first place (he was required to get the police to do a fingerprint check from Hong Kong even though we lived there more than 10 years prior and shouldn't have had to do it as stated on the form --among many other hoops we had to jump through at considerable expense).

Anyway, can anyone shed some light on what we should do before I get on the phone to the Canadian embassy in Sydney and go on hold for five hours?

Thanks everyone.

I can't reply with authority, but the clock is ticking for you, so I suggest you launch a separate post on this question, to get Leon's and PMM's and Rjessome's attention. Maybe put their names in the title -- and say they are fine and wonderful people -- to ensure a response.

 

[YorkFactory]

Anyway, can anyone shed some light on what we should do before I get on the phone to the Canadian embassy in Sydney and go on hold for five hours?

He needs to travel to Canada before his visa expires so he can land as a permanent resident. Otherwise, as you suspect, you would need to start over.

Time spent with you, his Canadian spouse, outside Canada counts as time spent in Canada for the purposes of maintaining permanent residence. It does not count toward Canadian citizenship, so he will need to live in Canada for long enough to actually apply for citizenship.

A round trip from Sydney to Vancouver looks to be about $1500. That's going to be cheaper than reapplying.

 

[scylla]

Hi, I know it's been a while since this topic has been brought up, but I think that my question fits perfectly in with this. I understand that days spent with your Canadian spouse outside of Canada can count towards your days accumulated for the necessary PR days. BUT can they also be counted towards the days needed to apply for Citizenship? My dearest and I are Animators, and we work and travel together always. But sometimes Animation work flatlines in Canada (as it's tied to world wide animation demands), and we will suddenly find ourselves working and living together in places like northern France (like right now). Will he be able to count the days outside of Canada towards his Canadian citizenship as long as he's living with me? We plan to try to always live and, if possible, work together, and Canada is where we ideally want to live and work at all times, but life is not ideal. Does anyone know if this will be possible? Thank you for your time! This forum has helped me answer SO many of my questions just by reading ones that others have asked, I'm truely grateful to all the people here helping others out! What a great community!

The days can be counted towards PR only. For citizenship you must accumulate actual physical presence.

 

[rjessome]

But I've just noticed in his passport that his IM-1 visa has an expiry date of May 2012 on it. What does that mean? That he needs to get his citizenship papers sorted by that date? That he needs to go to Canada before that day? If that visa expires in 2012 and he has to reapply again, I'll scream as it was a huge nightmare getting it in the first place (he was required to get the police to do a fingerprint check from Hong Kong even though we lived there more than 10 years prior and shouldn't have had to do it as stated on the form --among many other hoops we had to jump through at considerable expense).

Are you sure his visa expiry date is May 2012? Seems odd as it is normally 1 year from the date the medical was completed. Whatever it is, your husband must land in Canada to become a PR prior to the expiry date or else he loses it and the process would have to start over.

In any event, other posters are right about required days for PR and Citizenship. Days spent accompanying a Canadian citizen spouse outside of Canada can be counted towards PR. However, only physical presence in Canada (3 out of the previous 4 years) can make one eligible to apply for citizenship.

 

[AllisonVSC]

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.

Just to be extra clear...Does R61(4) apply to vacation days out of Canada as well or is "accompanying" intended for only those taking up RESIDENCE outside Canada? The statement does say regardless of purpose...but I wanted to double check.