Leaving Canada Temporarily while spouse's PR (outland) is in progress Sponser being PR and sponsorship eligibility is Approved
- Thread starter garuda2020
- Start date
Sorry I wasn't clear, my post essentially agreed with the sentence I quoted, and therefore with you, did not mean to imply you were making light of this requirement. I just feel too many people (not you) discard requirements because "someone else got away with it" while not having to fear the potential consequences and therefore give advice that could be reckless and dangerous.
I'm not suggesting anyone to take that risk but my friends (whom I know directly or indirectly) experiences say that it's not black & white requirement (and it can't be, because they never spelled it out clearly, they would've if it's such a big deal). I'm just saying - if someone is already in this situation like me, I want to assure them that I personally know 4 cases in total which are approved and "apparently" after searching for many times I can find 0 cases where application was rejected for this reason. So that's a 4-0... I'm 100% open to change my opinion, as I told before, I'm really interested in seeing those posts where someone got rejected.
I definitely think it's very easy to keep track of who is going out and coming in, all they need is to connect to the last boarding pass scanner in international terminals, I would assume they are doing that for "Security" purposes. In my CBSA records (which arrived 2 days before), I only see exit records to USA by road and only incoming records by air. At least, they are not maintaining them "officially".
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#1. One other thing is: there is clear description about travel in IRCC docs that if you are in a specific business that needs you to be away from Canada for work or you are seasonal worker, then you should be fine. My question is: no where in the application, they has asked if the sponsor is working for a company which would require him to be outside Canada? then how can they reject?
Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-assessing-sponsor.html#abroad
#2. There have been applications who receive PFLs and refusals for having a PR sponsor not residing in Canada.
Can't find them, would really appreciate if someone can show even one post like that.
@canuck78 @armoured @k.h.p. @Naheulbeuck - I appreciate your contributions to this forum and I would like to hear you opinion on #1 (Seasonal worker or "on-job" requirement to be outside)
Well if the outland sponsor leaves Canada for 3 months and works remotely for the same Canadian employer. But continues to be salaried in Canada.. pays income tax, cpp, property tax, hydro, internet, mobile, gas, home insurance, car insurance, dental insurance, car loan, home morgage, credit cards and maintains their front/back lawn... is it still considered as not establshing primary residence in Canada?
I spoke to 2 IRCC agents and my immigration attorney all say the same thing as long as the outland sponsor does not establish primary residence in Canada while processing, they dont qualify.. no where it says extended stay outside Canada will disqualify the sponsor
It will be very helpful if we could find a previous thread where the application was denied for staying outside Canada
I spoke to 2 IRCC agents and my immigration attorney all say the same thing as long as the outland sponsor does not establish primary residence in Canada while processing, they dont qualify.. no where it says extended stay outside Canada will disqualify the sponsor
It will be very helpful if we could find a previous thread where the application was denied for staying outside Canada
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It doesn't state that you have to have your primary residence in Canada it says you must be in Canada so I'm not sure how your lawyer is comfortable with his/her interaction of the rules. This forum doesn't have an easy way to search for refusals so I'm not going to spend hours looking for refusals. If the VO does realize that you have been abroad for long periods of time they refuse you but the issue is they don't always look. Your lawyer likely suggests all these proofs so that it looks like you are in Canada. The IRCC customer service agents make errors on a daily basis so I would never trust their advice unless they can provide written proof to back-up what they are saying.
I don't have inside information about this but the way these records work and ATIP requests for info is not so simple. And I haven't seen yet confirmation of how one can get access to the exit records for departure by air (someone will eventually work it out).
The issue is this: when you ask 'a department' (eg CBSA) what records they have on you, my understanding is that they must provide info that they maintain - or in other words, records that they 'own.' If that information is maintained ('owned') by someone else (even some other department), that may not be reported to you. (This also holds for IRCC) We know from government announcements that government does indeed have exit records by air; we know that CBSA does not 'control' exits; and so it's entirely possible (even likely) that those records are with some other department (Transport? RCMP? I don't know).
In short, do NOT rely on the fact that CBSA provided you with limited information (without air departures) as in any way indicating that IRCC cannot check.
This limitation is stated in two parts without reference to legislation so my comments here are reading between the lines. The first part says 'short holidays or business trips outside Canada on a temporary basis.' My understanding is that 'business trips' would cover most short-term temporary work arrangements. The second part - I read/interpret this in the context of the reference to ship crews or seasonal workers; there are specific provisions in law (including some international treaties and tax code) for a few very specific professions - ship and air crews for example (and you will find in the various IRCC docs a few very specific areas where these cases are carved out - even though they apply very rarely). And part of that context is the specific language about work arrangements outside of Canada for 'finite periods of time.' How strictly will they apply? Would they request documentation? I have no idea.
But I would say it is the wrong approach - risk-wise - to think that one can attempt to get around this provision after the fact, i.e. remote work arrangements or "my employer asked me to go somewhere" or anything similar. Or in more simple terms, if you know you're covered by this - eg ship crew - you're probably fine; and if you don't know if you're covered by this, you're probably not.
There was a separate comment above about a lawyer discussing the 'residential ties' aspect. This approach would be correct IF the regulations and legislation referenced a particular definition of 'residency' such as 'tax resident of Canada.' It does not. The lawyer is arguing by analogy that the following characteristics that define tax residency will be applied to determine residency - but the IRCC regs and legs make no such reference. (One type of residency determination the IRCC regs and legs do use is physical residency i.e. days present).
So I understand the lawyer's argument. It's not a crazy argument - but that doesn't mean it's a good argument that would prevail in any dispute. It's easy to say that if you're not the person who would suffer the consequences - nor, coincidentally, have to pay the legal fees to challenge it. Which is the only way as far as I can tell that a sponsor could get any meaningful redress - and even then I'm not clear (because in most cases would likely be more effective for a PR in such a case to re-apply and start over). So - will your lawyer give you a guarantee that if it's turned down for this reason, he/she will mount the challenge and not charge any additional legal fees? Not likely.
Anyway, it's up to you. The risks have been outlined. If you wish to take that risk and rely on lax enforcement of this (or some definition being used that we have not seen), that's your decision.
The link does say specifically that:
Sponsors who maintain a principal residence in Canada are not considered to be in violation of residency requirements if they:
- take short holidays or business trips outside Canada on a temporary basis
- have work arrangements that require them to be outside Canada for temporary finite periods of time, but return to live in Canada in between assignments (such as ship crew or seasonal workers)
It's true that it does not specifically declare time periods or what specific tests they are using but it pretty much does say 'extended stay outside Canada' will mean one does not meet residency requirements.
Have these IRCC call centre agents been willing to send anything in writing or refer you to specific provisions? If not, it's of little use.
Was outside for few months and came back in as they started processing spouse's application recently.
@armoured I think there is definitely some risk. All I'm trying to say is - even if they want to "refuse", they have to first know if someone is outside for "work" (my company can send me to train people for 3 months etc..) and because they don't know that from the application (they never asked for it), they should at least give one chance to explain what is going on, if they want to enforce.
This is a simply not-well-thought-out rule and there is no logical sense to this rule. When it's so easy to get your spouse here while you are on work permit or student visa, they don't have to become a pain in the ass for PRs with rules like these.
This is a simply not-well-thought-out rule and there is no logical sense to this rule. When it's so easy to get your spouse here while you are on work permit or student visa, they don't have to become a pain in the ass for PRs with rules like these.
You say "they have to first know" and "they should at least give one chance" as if that's a requirement. Where did you get this from? Just the idea that it "should be" that way? It's an admirable idea - and I wish it as more clear - but it doesn't necessarily work that way. And I don't see the requirements that you believe must exist.
The "one chance" is it's made quite clear a PR-sponsor must be resident. And that short trips are okay.
After that, your call.
[And I don't know enough about your specific situation to comment. If it's a Canadian company and you continue to be paid in Canada, etc., perhaps it will be fine.]
There was recently a post of someone who applied Inland, one of the rule for that application is that the applicant stays in Canada, the applicant was essentially approved until IRCC realized the applicant had left Canada. That application was refused, and a new application will now need to be submitted. I realize it is a different situation, but it was just an honest mistake and the couple had no clue that they were not supposed to, after all, if outland, they would have been fine and they now can submit their application again, so IRCC could have shown a blind eye, but no, they didn't (another applicant may have been lucky and not be found out) and now the consequences are severe.
In this situation, if they find out by a similar agent as above, either your application will be refused or you will be given a chance to explain your travel, but don't think that just using your work to justify it will be easy. Why did your work require you to work remotely from your country in particular, if it is the first time, why suddenly this was a new requirement (questionable timing), do you have communication prior to your travel as to your company requiring this travel, are you part of the ownership of the company (much higher level of scrutiny).
As a lot of things, it will all depend on the agent processing your case, and as mentioned many time, it is the individual's (or I would suggest the couple, good luck explaining to your spouse that you are back to square one because either you didn't read the requirements or ignored them if you are unlucky) decision.
Just to add to my post, it is not that I rejoice at the thought of couples being apart, especially in those difficult times, I feel for you. Some rules are quite imperfect, but I also know the danger of thinking that the rule won't be applied or that we will be able to get away with it. For a few months of short term happiness, it can lead to years of difficulties.
Yes, this is a very good point - I have no self-interest in this and I'm not arguing the rules are well formulated or fair. They are what they are and we're just pointing out risks - and that the arguments about why it "should not" apply may simply not work.
[And related to a point above - for sponsors whose work "requires them to be in their home country" - well, I'd expect there to be more skepticism, should it ever come to that. The 'short trips' seems to be there in the regs to allow for travel to see a spouse; they're clearly not there to provide for long visits or anything close to residing with spouse in home country.]
I dealt with US immigration before, and this line of questioning is exactly how they deal with stuff. I don't think IRCC will treat everyone as criminals until proven otherwise like USCIS does.
The difference is - whether the authority is just using the "authority" to just mess with people OR really use it where necessary.