I am certain that I do not meet the Residency Obligation (RO).
I do not feel comfortable going to Canada and staying for almost two years without leaving.
A lawyer assessed my chances of successfully applying for a new Permanent Residency (PR) on Humanitarian and Compassionate (H&C) grounds at 30%-40%, given that I am staying with my 80+ year-old mother outside Canada, though not all the time.
Currently, I have a valid Permanent Resident Travel Document (PRTD) until the end of this month, which is my last opportunity to enter Canada.
My question is: If I skip this chance and attempt to enter Canada via the U.S. border after 1 or 2 years, what are my chances of success?
Not sure why but it seems like everyone, including perhaps even the lawyer, is ignoring the rather large
elephant-in-the-room:
A new PR card does not give the PR a free pass if they are not here to stay.
In particular, if you are not coming to Canada to stay, being issued a new PR card based on H&C considerations will NOT solve your inadmissibility issues going forward in regards to a future failure to comply with the Residency Obligation.
Even if issued based on H&C considerations, a new PR card does NOT, for example, does NOT restart the RO clock/calendar.
Moreover, if you are not staying in Canada while the PR card application is in process, that will considerably lower your odds of H&C relief allowing you to keep PR status and be issued a five year PR card.
Regarding the Effect of H&C Relief; Assuming you make a PR card application and based on H&C considerations you are issued a five year card:
H&C relief for a previous breach of the RO does not forgive a further or future breach of the RO . . . remember, your RO compliance will always (after the fifth year anniversary of becoming a PR) be assessed based on days IN Canada during the previous five years. So if you leave Canada again for an extended time and you are questioned about RO compliance when you next return, say that is two years down the calendar, the assessment of your RO compliance will be based on how many days you have been IN Canada in the previous five years
as of that day . . .
. . . even if you make a PR card application and based on H&C considerations you are issued a new PR card which, when you arrive (a couple years down the calendar), is valid for another three or so years.
Note, in particular, if it is determined, during a PoE examination, that you are in RO breach (found to have spent fewer than 730 days in Canada within the previous five years), a Removal Order will be issued
unless as of that day there are sufficient H&C reasons to allow you to retain PR status despite the breach. Again, even if you have a new PR card valid for two or three more years.
That is, that would be a new, different H&C assessment. That would be based on your history and circumstances as of the day you return to Canada.
To be clear, any decision allowing you H&C relief in 2025 that results in being issued a new PR card would be based on your circumstances as of when that decision is made in 2025 (including how big the RO breach is). If meanwhile you leave Canada for an extended period of time and are questioned about RO compliance when next returning here, say that is in 2027, that calculation, including consideration of H&C factors, will be based on your circumstances and history as of that date, that day in 2027, and again that will include how big the breach is as of that day (based on days in Canada within the five years preceding that day).
So, you probably have better odds of making a successful H&C case in a PR card application now compared to what your odds would be showing up at a PoE (entering Canada via the U.S. border) without a valid PR card more than a year from now.
IF, however . . . IF you continue to be mostly outside Canada in the meantime, even with a valid PR card in hand there will still be a significant risk of inadmissibility proceedings at the PoE (what many here refer to as being "
Reported"), potentially resulting in a Removal Order when you next return to Canada.
Main differences if you get a new PR card:
(1) with a valid PR card you can fly directly to Canada (not have to travel via the U.S.), and
(2) with a PR card still valid for multiple years, you would have a better chance of being waived through the PoE without being questioned about RO compliance
Additionally, depending on how far down the calendar it is that you return to Canada to stay, and more particularly depending on the extent to which you are outside Canada in the meantime, a positive H&C decision in 2025 may carry some positive weight in the assessment of your H&C case in 2027 (for example). The longer you are outside Canada in the meantime, the less positive weight the 2025 H&C decision will carry.
So a new PR card would improve your odds of keeping PR status despite continuing to be in breach of the RO, but if you are not here to stay there is a real risk it will not save your status.
A key factor is what risk is there that instead of being waived through the PoE in 2027 (for example), because a valid PR card is presented, what risk is there that instead of that the border officials make RO compliance inquiries leading to inadmissibility proceedings and a Removal Order (despite presenting the valid PR card). Generally PRs presenting valid PR cards, and particularly the longer the card is still valid, the better the odds are that they will NOT be asked about RO compliance.
Your personal odds are not likely to be nearly that good.
We do not know what sort of alerts or notes are made to GCMS that might prompt RO compliance inquiries at the PoE, but no special expertise needed to recognize that there is a significant risk a PR who has been granted H&C relief might be flagged in some way. That is to say the chances of being waived through the PoE are probably not nearly as good for the PR who has been allowed H&C relief but then left Canada for an extended period of time, as compared to the good odds of being waived through that most PRs have when presenting a valid PR card.
All of that to say . . .
All of that to say it appears you have some tough decisions to make, starting with identifying your priorities, what is more important to you, but also considering the practical logistics, what you can actually manage in your circumstances.
I am not qualified to review all the options and their respective risks, let alone offer advice about what will be
YOUR best approach. I can say, nonetheless, that even if the most-safe approach (coming while the PR TD is still valid and then staying for long enough to be in RO compliance before leaving again and before making a PR card application) is not an option for you, but if you nonetheless come soon, the longer you stay in Canada the better your odds of keeping PR status.
I can also say that generally when a PR needs to rely on getting H&C relief, it is usually better to wait until the PR is prepared to settle in Canada and mostly stay in Canada long enough they pass the 730/5 years threshold, before engaging in the transaction likely to trigger an assessment of RO compliance (be that a PR card or PR TD application, or application for authority to actually enter Canada made by arriving at a PoE, particularly if arriving without a valid PR card).
But not always; not for every PR who needs H&C relief. Sorting out the best approach is a very personal decision-making process, lots of factors to consider, personal priorities and practical logistics looming large.
If, for just an
off-the-cuff example, you can come to Canada to stay six or eight months, long enough to actually settle here for awhile before making a PR card application relying on H&C considerations and to stay here three or four more months after making the application, that could improve your odds of getting H&C relief and a new five-year PR card, and even though you then leave Canada it should also improve your chances of avoiding inadmissibility issues when you next return to Canada even if you are still in RO breach (short of the in Canada 730/5 years threshold). Again, that is just spit-balling examples.
Overall, short of coming here to stay, the sooner you come and the longer you stay before and after making a PR card application, the better your odds. Better odds of H&C relief and a new five year card, and better odds of not getting "Reported" even if still in breach of the RO when you next arrive at a Canadian PoE.
