Generally, the key to credit for time "accompanying" a citizen spouse abroad has been cohabitating. The
Diago Diouf IAD decision is an exception, and not the only one.
That said, if the reason the two of you remain abroad is due to your employment abroad (and you being the citizen partner), even if the more restrictive interpretation of "accompanying" was employed, you should be OK. But that is OK relative to the credit toward compliance with the PR Residency Obligation.
You do identify a wrinkle, one relative to not actually settling in Canada following the grant of PR status.
I do not wish to overly alarm you. What follows is more so that you aware of potential concerns and can be better prepared in the event the issue arises. My guess is that there will be no problem. But there is some risk. So I elaborate:
Personally I would be certain to retain all documentary evidence you can which would show that you had indeed made concrete plans to return to live in Canada (including, for example, documents related to the purchase of a home in Canada) and that changes in circumstances led you to change your plans
after your partner landed.
Leading to this:
This timeline gives the impression the change in plans may have occurred prior to the date she landed. Indeed, it might overtly support a specific inference the change in plans occurred prior to the date of landing. Otherwise why so short a stay in Canada following the landing?
Is this a problem? How much might CIC re-examine the original process for obtaining PR status? I do not know. The timeline, however, suggests the burden of proving when you changed your plans could easily be placed on you and your spouse . . . that is, that CIC could infer the change in plans was before the date of landing, which would mean you would need to rebut that. Proof of the actual date of accepting the offer for the job that kept you abroad would be of much evidentiary importance . . . but if that date is prior to the date of landing (not the date of the PR application, but the date of landing), ouch.
I do not know whether this is likely to come up, but if it does, and you took the job before the date of landing, that tends to indicate misrepresentation by omission, by failing to notify CIC of a material change in circumstances, notably that your plans to return to Canada had changed.
Impression matters. Appearance matters.
If the job offer, or at least the date you accepted the job offer, was
after the date of landing, and you have the documentation reflecting this, then there should be minimal risk related to this.
Moreover, while I am largely speculating about this, I doubt it will come up as an issue
so long as compliance with the PR Residency Obligation does NOT come up. Technically one should have little or nothing to do with the other.
But, for example, if the two of you are back in Canada to live before she would need a PR Travel Document in order to return to Canada, my guess is that neither CBSA or CIC would dig into why there was a delay in settling in Canada. No problem.
The problem could more easily arise if she applied for a PR Travel Document. And in that instance, it is going to be glaringly obvious that you did not return to Canada to live together in Canada, based on the disclosure of addresses for the previous five years.
Probably no problem at a POE if the two of you are traveling together. Hard to see a border officer digging past finding out you are a citizen, her spouse, and the two of you have been living together. Particularly if she is still traveling with a valid PR card.
But visa office processing of PR Travel Document applications tend to be significantly, if not greatly, more strict. It is no coincidence that the
Diago Diouf IAD case, and the
Kartar Singh Khaira case (another decision similar to the Diouf decision, but much more recent) arose from PR TD applications which were denied, and the appeals denied as well; and a couple other recent cases where the visa office denied the PR TD on similar grounds but the IAD allowed the appeal, in the
Kingsley Robertson Liong case (2013), and the
Roberto P. Balan case (November 2012).
In contrast, for example, even if you do not return to live in Canada before December 2017, but you do so while her PR card is still valid, there is probably a very good chance you could come to Canada,
together, and encounter no problems at the POE. No guarantees. And I am no expert. But, well, in this scenario there should be little to arouse concern for a border officer.
But once the PR card expires and a PR TD is needed, the risk of problems obviously increases.
As I noted, while technically the one issue really has little or nothing to do with the other, if a visa office engages in a residency determination, that is when the risks increase, when CIC is more likely to go digging for whatever negatives they might find. And again, impression matters, appearance matters.
Moreover, the law itself is always subject to change.
Historical observations:
In looking at the
Diago Diouf IAD decision (decision dated May 30, 2011), and some more recent decisions regarding this issue, it is apparent that under the Harper government CIC has moved back toward an older, never common, more strict interpretation of the applicable statutory provision, one which does indeed examine who is accompanying whom. The more difficult cases appear to go both ways. That is never good. That means you can never be sure how it will go.
The irony is that some years ago this issue appeared to be completely settled, and qualifying for the exception only required the proof I outlined in my previous post:
-- proof of being in a qualified relationship (copy of marriage certificate for example)
-- proof of partner's Canadian citizenship (copy of Canadian passport for example)
-- and proof of cohabitation, of living together
It appears that it is not so well settled now, and has not been for a bit.
When I first researched this issue, regarding the interpretation and application of the "accompanying" a Canadian citizen spouse, it was actually so well-settled in both IAD and Federal Court decisions, in the intervening years I have not revisited looking at actual cases and formal decisions.
To be clear, what was well-settled was that the applicable law was consistent with the policy prescribed in the applicable operational manual,
ENF 23 – Loss of Permanent Resident Status. There, in section 7.5, it states:
"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."
My sense is that is still the dominant approach, but again the
Diago Diouf IAD decision and the
Kartar Singh Khaira case raise this issue again, and it is clear that some visa offices are denying PRs a PR Travel Document (and thereby terminating the individual's PR status) after a more nuanced assessment as to who is accompanying whom.
Thus, for example, there is the
Kingsley Robertson Liong case (2013), where the applicant was denied a PR TD based on the visa office's determination that
" . . . it could not be said that it was [the PR] who accompanied [the citizen spouse] and, therefore, [the PR was not entitled to] any credit for time spent with [the PR]'s Canadian citizen [spouse] abroad."
And the
Roberto P. Balan decision (November 2012) where, similarly, the PR was denied a PR TD based on the conclusion that the citizen was accompanying the PR.
In both the
Kingsley Robertson Liong case and the
Roberto P. Balan case, the appeal was allowed, the visa office decision overturned largely on the basis of the policy as prescribed in the operational manual quoted above, which one IAD panel described as the
"unrestricted interpretation" of the statutory exception.
In particular, in the
Roberto P. Balan case, the IAD stated:
"The issues presented by this case are familiar to the IAD as they have come up on other occasions and with" [some notable exceptions (including the
Diago Diouf IAD decision)]
"all appear to have been resolved in favour of the unrestricted interpretation. While the panel favours the logic of [the interpretation by the IAD panel which issued the Diouf decision] . . . it is obliged to follow the interpretation favoured by the appellant by which he can claim the legal benefit of being abroad in the company of his Canadian citizen wife.
Obviously, there is a greater risk now of a more restrictive interpretation of the "accompanying" a citizen partner exception. My sense is that cohabitation is still the key, rather than who accompanied whom, but particularly for those couples with, as might be said, other
wrinkles, there is some risk.
The risk is likely tied in part to overall length of time abroad and extent to which the PR has had more direct ties to residing in Canada. One thing that appears common in all these cases, where the visa office denied the PR TD, is that the PR really had minimal direct Canadian experience or ties, never really was settled in Canada.
As noted, since you, the citizen, is the one with the job abroad, there should be no problem with obtaining the credit . . . but it is more the potential impression or perception a visa office might jump to when seeing the address history and how that could influence what they go digging to find.
Final note: there is some chance that things could swing a bit more toward a more flexible approach from CIC after the election. A Conservative government has, obviously, been pushing more enforcement and more strict enforcement. But this is also something widely desired by Canadians, so a change in the government might have no more than a minimal impact on enforcement policies or practices.
