@premchandar.au . . . I cannot help much with the very personal, practical decision you need to make, as considerations in making personal decisions weighing financial factors, employment factors, preferences in lifestyle or location, other personal priorities, are well outside the range of what I wrestle with here.
What I focus on, and offer commentary about, are the rules governing PRs, what they mean and how they work, and various factors affecting logistical, procedural, and substantive risks related to the rules and their enforcement.
So my comments below are ONLY about the PR Residency Obligation.
To keep PR status,
the only SAFE approach, the only approach for which one can have reasonable confidence it will be OK, is to come to Canada to stay
BEFORE breaching the PR Residency Obligation. Remember, if a new PR is outside Canada more than 1095 days before the fifth year anniversary of the date of landing, as of that day (which could be as much as two years before the PR card expires), the PR is in breach of the RO and thus becomes "
inadmissible" as prescribed by
Section 41(b) in IRPA.
Date the PR card expires is NOT relevant.
Many underestimate the impact failing to comply with the RO has. Many overestimate the extent to which H&C reasons will save their PR status. Generalities about "
leniency" are often misunderstood.
So, as I am wont to do . . . I offer
The Long Read About What Breaching the RO Means:
As phrased, that's an expectation likely to run head-on into disappointment for more than a few . . . depending on many factors, of course, but the number of days abroad by the time they arrive at a Port-of-Entry into Canada is one of the biggest factors.
If instead of "
as long as they enter before their PR card expires" they are, in contrast, coming to Canada to stay
BEFORE being abroad 1096 or more days since landing, then they could indeed be confident about not losing PR status for failing to comply with the RO.
Reminder: The date the PR card expires is NOT relevant when Canadian officials (CBSA, IRCC, or the IAD) are calculating RO compliance.
What can be confusing in discussions about this is that at the Port-of-Entry (PoE) the expiration date of the PR card can influence whether the traveler is waived through or is referred to Secondary, and there involved in a more or less formal Residency Obligation compliance examination. This is mostly about whether border officials realize there is a RO compliance concern and the PR-traveler should be further examined. As it is oft times expressed, some
slide-by. No RO compliance examination, no problem.
The more the PR has been abroad, and especially if it is obvious the PR has been outside Canada three or more years since last in Canada, the chances of getting to
slide-by decline. And for the PR staying abroad beyond three years, it is well short of the date the PR card expires that border officials are likely to notice there may be a RO compliance issue and conduct an examination.
This is not a lottery. Not a roll of the dice. Sure, there is some chance involved, but how it goes for any particular individual PR mostly depends on the facts and circumstances in that specific PR's situation. Some circumstances have an obvious effect. For just one example, the longer it has been since the last time the PR was IN Canada, they more likely PoE officials will suspect a RO compliance issue and conduct a corresponding examination.
In particular, for a PR who is in breach of the RO but still carrying a valid PR card, whether or not the PR is referred to Secondary and a RO compliance examination is the biggest fork in the path:
-- If waived into Canada with no examination (allowed to slide-by), the PR is good, status OK, and it will be OK as long as the PR then stays long enough to get into RO compliance (which for soft landing PRs late getting to Canada to settle, is almost always two years); again, no RO examination, no problem
-- If referred to Secondary and involved in a RO compliance examination, the most important factor, usually, is how big is the breach, and otherwise the PR is more or less relying on a favourable H&C analysis and officials exercising their discretion to allow the PR to keep status despite the failure to comply
As noted, but worth repeating, once the PR is referred to Secondary and involved in a RO compliance examination, the date the PR card expires is NOT relevant, not at all. What matters is mostly the total number of days abroad compared to days in Canada, and the reasons for not coming to Canada to stay sooner. While there are other significant H&C factors, like the best interests of a minor child, the numbers (days abroad compared to days in Canada) and the reasons for staying abroad are the bulk of what matters in most PR RO H&C cases.
There is little basis for expecting much leniency in how H&C cases are typically decided.
Leading to . . .
I do not presume to speak for
@canuck78 but I am confident the "
lenient" RO that
@canuck78 initially referred to, in earlier posts, is the leniency of the 2/5 rule itself, not about how liberal or lenient officials might be in allowing H&C relief when a PR fails to comply with the RO.
In contrast, my sense is the latter reference, the observation there "
is no indication that there will be any leniency when it comes to your RO," is about the prospect of H&C relief for a breach of the RO.
You can count on the leniency of the 2/5 rule (requiring two years IN Canada out of five); that is, you can "
bank" on it. The RO is expected to continue to be the 2/5 rule, so the RO is indeed "
expected to be lenient" indefinitely into the future. As long as a PR does not spend more than three years total abroad in five, the PR's status is secure, NO questions asked; no explanations or excuses are necessary.
The availability of H&C relief, in contrast, can and will almost certainly vary considerably, and in the absence of a big-ticket positive H&C factor,
it is generally not particularly lenient. In large part H&C relief is generally not liberally available because the RO, the 2/5 rule, is itself already considered plenty lenient enough.
(An example of a situation in which it would be fair to expect leniency: a PR in breach of RO has a child living in Canada whose other Canadian-based parent dies, so the PR needs to keep status to live and work in Canada, so Canadian child has a parent in Canada; best interests of minor child factor carries more weight than most other factors).
That is, the RO itself is lenient (again, many think "very" lenient), allowing PRs to remain abroad up to three years in five NO QUESTIONS asked, no need to explain why, no need to justify the time abroad . . . AS LONG AS the PR spends at least two years in five IN Canada.
The availability of H&C relief . . . generally not considered to be all that lenient.
The Covid-19, Global Pandemic Factor:
How Covid-19 and the global pandemic factors into any particular individual's case will likely depend on that particular individual's situation. It is not likely (and my sense is NOT at all likely) that Covid-19 will give PRs any credit in the balancing of days abroad versus days in Canada. For clarity:
-- it will for sure NOT count as a credit in the RO calculation itself; the global pandemic will not factor into whether the PR failed to comply with the RO (there is no authority in the law to allow any such credit)
-- it should (under the law, and thus most likely will) factor into assessing the reasons why the PR did not come to Canada sooner, and thus be considered in weighing H&C reasons, but how so, to what effect, and importantly for how long, is difficult to predict, and will vary, including --
-- -- HOWEVER, as soon as Covid no longer constitutes a serious impediment to travel, its weight as a positive H&C factor is likely to decline, to fade,
Bottom-line: those expecting Canada to give PRs an extra year or two to return here, because of Covid, are gambling. Odds may still be OK as long as the breach is not too big and Covid is still considered a big impediment to travel. Once Covid is considered to no longer be a significant impediment to travel, it is hard to say how long, but that excuse is going to fade and probably fade quickly.
It is probably fair to anticipate, for example, that a PR returning to Canada in early 2023 after being abroad for four years or so should NOT expect much if any relief at all based on the impact of Covid.
