A caution to stay aware of potential further changes which can have a major impact on PRs, particularly an impact on the capacity of those outside Canada to retain their PR status, is indeed well-warranted.
I recall that some of my posts just late last year, cautioning PRs abroad for three plus years that they were at substantial risk for a residency examination, despite being in possession of a still valid PR card, and being issued a 44(1)
at the POE upon arrival, were still being challenged in this forum by many who insisted that returning PRs in possession of a valid PR card were
unlikely to be reported at a POE. It really only has been in recent months that the consensus has largely agreed that those obviously in breach of the PR RO (such as those who, since they were last in Canada, have been absent from Canada for more than 1095 days) are at significant risk despite possessing and presenting a valid PR card. My sense has been that the risk has been elevated significantly for at least a couple years, but in any event the evolution of conventional wisdom reflects that there has been increased scrutiny and enforcement, with indications the enforcement is stricter.
In the last eight years (period during which I have been following Canadian immigration) there have indeed been many changes, including a number of changes which specifically target increased enforcement of restrictions, regulations, obligations, and conditions specifically affecting Permanent Residents.
It is worth noting that the PR Residency Obligation itself has not changed substantively, in this time period, but nonetheless there has been, clearly, both increased and stricter enforcement. There are, moreover, overt changes in CIC policy and practice, such as those which more strictly interpret the application of the PR RO exception for time abroad while working for a Canadian employer.
Some of the more profound changes affecting PRs, which changes tend to increase the impact of restrictions, include:
-- implementation of conditional PR for PRs sponsored by a partner
-- statutory changes increasing the grounds for termination of PR status, including in particular the change in late 2012 which provides for cessation of protected person status automatically (in effect) terminating PR status of persons who obtained PR status as a protected person
-- statutory changes expanding the scope and penalties for misrepresentation
-- implementation of far more strict provisions prescribing what constitutes serious criminality rendering a PR inadmissible (thus subject to revocation of PR status and deportation), along with procedural changes dramatically reducing the availability of relief for PRs in inadmissibility proceedings
-- information sharing provisions have expanded, both relative to information sharing between Canadian governmental bodies, and the profound expansion of information sharing with the U.S., including direct access now regarding PR entries into the U.S.
-- changes in other provisions of law related to PR status, such as the addition of the "no unfulfilled conditions" as a specific requisite for grant citizenship
I am sure this is only a partial list. And there are also changes in technology and POE practices which are capturing far more information about border crossings -- during the first two years after I became a PR (early 2009), it was still more common (for me anyway) to be waived into Canada without presenting any ID, when entering Canada by car, than it was to be asked for ID (as I recall, again for me, the U.S. began demanding to see ID for every crossing around 2006 or so . . . before 2001, neither side of the border asked me for ID except on very rare occasions, for one in fifty crossings maybe).
How is this relevant to GRV's queries?
The recent discussion, above, illustrates the extent to which retaining PR status is a long shot for
GRV unless
GRV has a persuasive H&C case and competently makes that case.
In contrast, since
GRV still has a valid PR card, and particularly since
GRV is still within the first five years after landing, the
historical reporting in this and in other forums might suggest the contrary, that the odds are good
GRV can simply return to Canada and get through the POE without being reported, and then able to simply wait out the two years necessary to get into compliance with the PR RO.
One aspect of what I was trying to caution PRs abroad, still in possession of a valid PR card, was the difference between those who may have traveled back and forth to Canada occasionally, even if for only brief stays in Canada, and those who were last in Canada three years or more previous. The difference is how obvious it is the PR is in breach of the PR RO. No calculation is necessary to conclude there is a RO breach if the PR was last in Canada three plus years previous. I have been hesitant to clearly illuminate the fact that one way in which PRs living abroad can decrease their risk of being reported (upon arrival at a POE) is by just traveling to Canada at least once each calendar year, no more than a year later than the previous trip, and thus better if there are at least three or four trips every two years. I have been hesitant to clearly illuminate this because it is indeed a way in which (or so it appears) many abuse the Canadian PR system, deliberately breaching the RO and doing this to minimize the chance of getting caught. I do not condone, let alone encourage, schemes to avoid enforcement of Canadian immigration law, so I have not wanted to be so explicit about this that the information would, in effect, offer instruction about how to skirt Canadian law.
I suspect that window is shrinking as we go forward. I am sure, though, that the window is indeed shrinking for any who go beyond three years with no return to Canada.
That said, there are still some reports suggesting CBSA and CIC (at least in-Canada CIC officers) still exercise a fair bit of leniency in making discretionary decisions for PRs still within the first five years, still in possession of a valid PR card, and who appear to be committed to establishing a life in Canada but whose actual, physical immigration to Canada has been delayed due to not just the typical H&C reasons, but even other hardships and hurdles such as those which are financially related or education related.
BUT again, any such leniency is --
-- discretionary (no guarantee for any particular individual)
-- subject to change or total elimination at any time
-- and, probably, increasingly limited (less available)
For
GRV this is not good news. Four plus years since last presence in Canada, in conjunction with never having really established any long-term physical residency in Canada, raises the bar considerably.
And, moreover, as Leon warns, even the statutorily based requirements can be changed at any time; thus, for example, the exception for PRs accompanying a Canadian citizen spouse could be revised, limited, or even eliminated any time.
Some further observations:
Msafiri said:
My understanding is that what is holding the RO loophole close off in abeyance at this time is primarily that PRs accompanying their Canadian Citizens spouse abroad can count that time towards the RO. This is an absurd situation that beggars belief as to what the intention was when the IRPA was being drafted. Its understandable for say those accompanying a Citizen spouse who is serving in the armed forces, diplomatic posting etc since this is typical immigration policy for many countries but any Citizen spouse is surreal. Since the PR can be sponsored then actual loss of the RO shouldn't be an issue.
There are deeply entrenched policy reasons underlying the PR RO exception for those accompanying a Canadian spouse abroad, ranging from the weight given to keeping Canadian families unified to avoiding punishing PRs whose Canadian citizen spouses go abroad for employment. Moreover, so far as I have discerned from relevant IAD decisions, in addition to the few Federal Court decisions related to this, is that as a policy the cohabitation with a Canadian citizen spouse is considered a connection or tie to
Canada (and Canadian society) sufficient to warrant retention of PR status but not enough to warrant credit toward citizenship, the latter demanding a stronger and more broad integration into Canadian society.
This exception, or credit toward compliance with the PR RO, will almost certainly continue to be available.
There are, however, many abuses. Changes to the requirements for grant citizenship address some of these (not perfectly, but to a significant extent), tending to require a stronger commitment to settle in Canada for the long-term, for example, before citizenship can be obtained.
It would not be surprising to see some policy or practice changes relative to the exception/credit, such as there has been relative to the exception/credit for PRs employed abroad by Canadian employers (the latter has, in the last while, been subject to an interpretation which appears to virtually make this almost unavailable to any PR who otherwise does not meet the PR RO through actual presence in Canada). The provision that the PR
accompany the Canadian citizen spouse, for example, could be statutorily defined so as to address a large percentage of the abuses (at least what many consider to be an abuse).
It would be extremely surprising to see this exception/credit largely restricted, let alone eliminated.
Msafiri said:
Likewise the H&C aspect to any 'examination' while intended in good faith to enable officer discretion has become a messy conundrum since it depends on your luck. Its akin to the prior Citizenship Act where those referred to the CJ for residence issues either found a CJ strict on the physical days or one who was happy to go with a centralized mode of living. The PR showing up at the border has better odds than the PR applying for a PRTD of getting a pass on the breach - the border agent has 90 seconds to buy your story...the visa post has days or even months if they so wish to dig deeper. The easiest step for Parliament is probably to flip the in/out times for the 5 year RO window and make it 1095 days (3/5 years) required to maintain the RO.
Note: upon referral to secondary for an immigration examination, the examining officer has a lot more than 90 seconds to make a decision. Yes, the PIL officer's decision, about whether to refer a returning PR to an immigration secondary examination, is done very quickly; probably more than 90 seconds for those who in circumstances likely to result in the secondary referral, even if the average for all PIL exchanges is supposed to be, say, less than two minutes. But once referred to secondary, those officers have significantly larger time allowances for their decision-making.
In any event, there is indeed a big issue lurking about the extent to which there is discretion being exercised at a POE, relative to which PRs are examined further, and upon examination the level of scrutiny and strictness of decision-making can vary extensively. I alluded to a key factor above, the PR who has been abroad three years and a day is far more likely to be scrutinized intensely with a greater risk of being reported (due to the obviousness of the RO breach), than perhaps the PR who has been absent well more than four of the previous five years, but who has been making at least a couple two-weeks-plus trips to Canada every year . . . especially if the latter is deliberately gaming the system, while the former is someone who very much has planned on making the move to Canada but has encountered obstacles delaying the actual move.
The potentially disparate result of discretionary decision-making is, of course, the problem with discretion itself. But the capacity to allow equitable relief from strict rules also entails the profound benefit of discretionary decision-making as well.
The more discretionary decision-making is allowed to be, the greater the risk of --
-- abuse (including, especially, improper discrimination)
-- vagaries and unfairness in outcomes (including very disparate results for individuals largely in very similar situations, which tends to be unfair)
-- and, as a consequence, vague expectations, leaving clients in situations for which they cannot reasonably predict the consequences
The H&C discretion may be, indeed, somewhat similar to the
qualitative tests (such as centralized mode of living) for meeting citizenship residency requirements, as opposed to a strict physical presence test, pursuant to which prospective applicants could not be certain they would be found qualified depending on which CJ decided the case among other not at all clearly defined criteria. This may be particularly so in the sense that the qualitative test for residency, in citizenship cases, had long been routinely applied but was, with no statutory changes involved, dramatically curtailed due to which political party formed the government . . . so that historically many immigrants had come to expect a liberal application of a qualitative test for residency, but after they applied they learned (and experienced) a dramatic curtailment of this. Similarly relative to the long history of rather lenient POE examinations for PRs returning to Canada still in possession of a valid PR card . . . then with the Conservatives forming the government, changes toward increased and more strict enforcement of the PR RO.
That said, the purposes of these respective, largely discretionary bases for decisions favouring PRs, have been profoundly different in important respects. A big factor is the permanency of the outcome: once citizenship is granted (based on a legitimate application), that is permanent (with the very limited possibility of revocation for extremely serious offenses, amounting to treason or terrorism). In contrast, a POE waiver of the PR RO does not result in any long-term let alone permanent grant of status, and especially where the PR RO is waived in favour of a PR who appears to be in the process of establishing a life in Canada, the waiver is consistent with, not contrary to, the preservation of the PR's status.
That does not obviate the difficulty predicting how things will go when it is apparent POE officers are indeed exercising broad discretion in deciding whether, for PRs who have not met the PR RO, to issue a 44(1) inadmissibility report or to allow entry without a report. My sense is that the government, including CBSA and CIC, whether the respective Minister is a Conservative or from another political party, is OK in leaning favourably toward PRs who may not have met the PR RO but who do not appear to be deliberately abusing the system.
There are obvious abuses taking place. The impact is relatively tempered, however, since a PR abroad is not entitled to any particular help or benefits from Canada. The historical problem with fraud, with some PRs not even in compliance with the PR RO but applying for and obtaining citizenship, has been largely addressed through increased scrutiny, increased enforcement generally, and the significantly increased requirements for citizenship (such as, for example, tax filing requirements in conjunction with four years actual presence).
Leading this back to the situation for GRV:
While it may appear that many if not most of the changes increasing scrutiny and enforcement, and implementing more strict enforcement, have taken place due to the Conservative government, my sense is that the Canadian government would have trended in this direction regardless of which political party was in power. Perhaps a different political party would not have so extensively bowed to the U.S. demands for more strict border controls (a big factor in many of the changes), but that was the inevitable direction things have been going after September 11, 2001, again regardless of which party forms the government.
Thus, for those in a situation similar to that
GRV is in, first it is not likely to see much if any reduction in the level of scrutiny or enforcement if another party forms the government after the October election. Indeed, while the status quo may persist more and longer with a change in government, overall the trend will continue to be toward more control of the border, toward more scrutiny and enforcement of immigration laws including those governing PRs, toward more technology and information sharing which enhances the capacity of CBSA and CIC to enforce existing laws, regulations, and rules, and thus, generally, overall the more difficult it will be for a PR in
GRV's shoes to retain PR status . . . depending, of course, on particular facts and circumstances, including the particular H&C reasons the individual has tending to favour retention of PR status.
