My wife's PR expires in August 2022 and she's not in compliance of RO. Can she renews her PR card under H&C ground then leave Canada again.

[danielhot]

I don't understand the timeline. She got her PR in Aug 2012 (that's almost 10 years ago). And there is no "second PR". Her RO counts backward from the day she enters Canada/of any day she encounter IRCC/CBSA.

So assuming that she is crossing the border today, only days she spent in Canada 5 years from today counts towards her RO. How much time did she spend in Canada since May 12, 2017? She cannot renew her PR card until she meets her RO. And I don't see why she needs to renew her PR card since she plans to leave again soon. She only need a PR card to enter into Canada, not to leave Canada.

I also do not understand about your 3 months of visits. None of those counts on her RO as she needs to be physically be in Canada to count the days.

My bad. I mean, her second PR card.

Assume she enters Canada June 10th. She physically spent 511 days from May 10th 2017 to entry date. I understand she's in breach of RO now and unable to apply regular PR card renewal. That's why I emphasize on H&C ground PR card renewal because she has sufficient evidence to support her claim. Her dad was in good health before, but a sudden stroke changed her RO plan completely. The reason why she wants to renew PR card is she wishes to live with me again in Canada around 2023-2024. and go abroad visiting her mom occasionally. By then she needs a valid PR card as a mean to enter Canada.

I'm a Canadian Citizen, and I visits her four times in her home country from 2018 to Feb 2020. we spent those time together, roughly 2.5 months, with family picture as proof. sums 511+75=586 days. it may be another subject of "who accompany whom". It's the official to judge if these days count if filled in application form. nonetheless, legitimacy of my accompanying days doesn't change the fact that she's non compliance of RO.

 

[danielhot]

It warrants noting one important, back-up option in your situation: even if your spouse loses PR status, you can sponsor a new application for family class PR.

Otherwise . . . The situation and the options are quite complicated, and there are multiple tangents going in different directions depending on a number of things that are contingent. In the meantime, unfortunately you have encountered some of our less-than-helpful forum participants.

In contrast @armoured, among others, can generally be trusted to offer information and observations that are as helpful as those of us who are generally here to help can. But it is just early morning for most Canadians (and still in the middle of night for many more), so you need to be patient and wait for more constructive input.

Given the complexities of the situation, and frankly what appears to be some confusion you might have in regards to the relationship between a PR card and PR status, it would be very difficult to offer a full response. I'll try to hit some key elements, but it is not easy knowing where to start.

Depending on financial resources, perhaps she could consult with a lawyer, a paid-for real consultation (make appointment soon for a day she will be here).

Frankly, if she intends to remain abroad for a further extended period, other than for a short stay in Canada this year, the plan to apply for a new PR card is not likely to solve her PR Residency Obligation compliance issues. But, explaining this, and diving into options, really does get complicated and involves contingent events that are very difficult to predict. Your query, for example, assumes she is not Reported when she comes to Canada. That is a big assumption. Very difficult to say how that will actually go. I suspect the H&C case might not be as persuasive as you think, especially given she has been a PR for around a decade.

By the way, the calculation of her RO compliance at the border, when she arrives (and if questioned about RO compliance), will be based on how many days she has been in Canada during the last five years. Date her PR card expires is NOT relevant. That is, her RO compliance is not about how many days she has been "in Canada on her second PR." If she arrives at the border June 7, 2022, just as an example, RO compliance will be based on number of days in Canada between June 7, 2017 and June 7, 2022.

Which brings up future RO compliance calculations. If she goes abroad again this summer, and does not return to Canada again until October 23, 2023 (just as an example), the RO calculation upon her arrival will be based on days in Canada between October 23, 2018 and October 23, 2023, even if she gets a new PR card this year. This, it is worth noting, is a significant part of why applying for a new PR card this year will not necessarily solve her PR RO compliance issues.

And the latter could be why some might suggest just waiting to apply for a PR Travel Document later, when she plans to come to Canada after her current PR card expires.

Which brings this around to making a PR card application now based on H&C. Generally that approach is appropriate once the PR has come to Canada to stay. Since she is not coming to stay, once she has been abroad again for a significant period of time, in effect she will be relying on H&C relief again the next time she returns to Canada.

Apart from that, and this is an aspect of things where again there are contingencies difficult to forecast, the odds are she will not be issued and delivered a new PR card as long as she is abroad, but at BEST only be delivered a new PR card in-person. So the likelihood of having to make a future PR Travel Document application in order to travel to Canada looms anyway . . . or, assuming she can travel via the U.S. again, and travels to Canada via a land-border-crossing, she would then be subject to a PoE examination and facing the prospect of being issued a Removal Order (if scheduled for in-person PR card pick-up her GCMS will almost certainly be flagged for RO screening upon arrival at a PoE).

I realize I am not really answering your questions.

And I realize that once she returns here with you next month, the timeline for deciding and taking action is very short. But there are multiple ways things could go at the border (it is not just a simple matter of being either Reported or not Reported), and what actually happens will determine the options available from there. So at the least, you have to wait to see what happens at the border before making a definite decision about what to do next. As I noted, perhaps it would be a good idea to schedule a consultation with a lawyer.

One more observation for now; you ask:

"Is she going to be officially asked by boarder officer on entry to remain in Canada for two years continuously then renew, as a condition to retain the PR status. or it's just a safe way to do so other than applying using H&C ground?"​

PRs in breach of the RO are sometimes cautioned by border officials, or admonished, about the need to comply with their RO. This is typically attendant being waived through without being "Reported," even though the screening officer is aware that the PR is likely in breach of the RO (without making a formal determination the PR is in breach). If waived through, it is well known and understood that the PR can resolve their PR RO compliance breach by staying IN Canada for two years. But it is unlikely a border official will "ask" a PR to do this.

Note that the vast majority of situations involving PRs in RO breach being examined upon arrival at a PoE, as discussed in this forum, are about PRs in the first five or six years after they became a PR. That is not your spouse's circumstance. How this can influence things, including in particular how it goes in the course of a border entry examination, is yet one more complex aspect of things.

This response is already long, and trying to adequately address the various ways things could unfold at the border would make it way too long, so for now I will leave it with saying that the overall range is she could be waived through with minimal or a few casual questions (noting that whether cautioned or admonished about RO compliance is of almost no importance), or be subject to a formal RO determination following the preparation of a 44(1) Inadmissibility Report, in which her H&C case will be considered, and which could result in either setting aside the Report or being issued a Removal Order. Where to next depends on the details of what actually happens.

You advice and observation is valuable and I will tell my wife this POV.

couple more questions. If she chooses not to come to Canada because she doesn't plan to stay in Canada till 2024. I know her PR status is still valid even after her PR card expires on August 2022.

1. Is she going to receive, at some point in the future, an A44(1) report or other reports stating she's no longer a PR even she's abroad.

2. Is it her best interest to stays away from Canadian customs which triggers RO examination?

3. Can she stay in her home country and wait till she's ready to come back to Canada on 2024? At that time she applies for a H&C PRTD and enter Canada.

Thanks,

 

[canuck78]

My bad. I mean, her second PR card.

Assume she enters Canada June 10th. She physically spent 511 days from May 10th 2017 to entry date. I understand she's in breach of RO now and unable to apply regular PR card renewal. That's why I emphasize on H&C ground PR card renewal because she has sufficient evidence to support her claim. Her dad was in good health before, but a sudden stroke changed her RO plan completely. The reason why she wants to renew PR card is she wishes to live with me again in Canada around 2023-2024. and go abroad visiting her mom occasionally. By then she needs a valid PR card as a mean to enter Canada.

I'm a Canadian Citizen, and I visits her four times in her home country from 2018 to Feb 2020. we spent those time together, roughly 2.5 months, with family picture as proof. sums 511+75=586 days. it may be another subject of "who accompany whom". It's the official to judge if these days count if filled in application form. nonetheless, legitimacy of my accompanying days doesn't change the fact that she's non compliance of RO.

You seem to still be missing the fact that it is 5 years from the date of entrance so you will need to count the days between June 10, 2017 to June 10, 2022. How many days will she have at that point towards her RO? Has she spent any time in Canada since 2017/18 when she left? I assume there will be concerns about what will change when it comes to her mother that will make her able to leave if she isn’t able to leave at the moment? Where has your Canadian daughter been living? Has she been attending school in whatever country they are currently residing in? It’s unclear what country they are living in. If she has attended school in that country for numerous years leaving may prove difficult. You mention only wanting to return to live in Canada for a short period of time in 2023-24. Do you plan on leaving Canada permanently again? If she is given a PR card she will likely be required to return to pick-up the card in person. The fact that she won’t be compliant with her RO when she returns and hasn’t been living in Canada could cause problems. One of the reasons why only trying to apply for a PRTD based on H&C when she plans on returning to Canada for good makes sense. Assume she realizes she is likely still a tax resident of Canada although she should doublecheck with CRA.

 

[dpenabill]

1. Is she going to receive, at some point in the future, an A44(1) report or other reports stating she's no longer a PR even she's abroad.
2. Is it her best interest to stays away from Canadian customs which triggers RO examination?
3. Can she stay in her home country and wait till she's ready to come back to Canada on 2024? At that time she applies for a H&C PRTD and enter Canada.

Any "best interest" assessment is necessarily very specific to the individual, with way too many variables and details to competently evaluate in a forum setting like this, including details probably best not shared in an open source like this. Even if we were experts. I for sure am NO expert, and I just as surely would not trust anyone else here to be an expert (with apologies to those who feel otherwise about themselves; but, still, no).

As I noted, the situation is complicated, involving some significantly diverging tangents. And some of the factors can involve significantly diverging effects. Which is why I suggested a consultation with a lawyer while she is here may be a good idea. A lawyer can go over her specific details and offer better informed views about how CBSA and IRCC officials are actually handling PR RO issues these days.

I am sorry I cannot offer more responsive observations. But a lot of this will be about going to the next step (like coming here in June), seeing how that goes, seeing what you learn from that, and only then making decisions about next steps after that.

Just to illustrate a factor that can involve significantly diverging effects is her relationship to you. Being in a marital relationship with a Canadian citizen predominantly living in Canada is a big positive factor in the H&C analysis. BUT as a Canadian citizen spouse you can sponsor her for new PR if she loses PR status, with is considered to reduce the amount of hardship she will face from losing PR status. So your relationship can have both a positive and a negative effect on the H&C case.

Trying to map what the net effect of that is in regards to all the other factors inherently involves speculation and prediction.

We know the key factors. Extent of ongoing direct ties to a life in Canada, especially the number of days actually IN Canada, is probably the biggest, most influential factor. It would be guessing, however, to try quantifying how this will affect official decision-making beyond ballpark generalities like more-days-in-Canada and stronger-ties-in-Canada, are better.

Then there are the PR's reasons for remaining abroad. And how compelling those are. Short of being held against one's will or otherwise physically not able to return to Canada, however, this inherently involves personal priorities and highly subjective elements. There is no point scale. Reason versus time factors into this.

But most PRs have family abroad. And other interests outside Canada. The 2/5 rule itself is intended to give PRs enough flexibility to balance their immigration to Canada with the PRs ties to family or business or whatever other interests abroad a PR typically has, so that Canadian officials do not get involved in making or second-guessing largely personal, subjective decisions for PRs . . . as long as the PR spends 2 years in 5 in Canada, neither CBSA nor IRCC will ask or be at all concerned about why, that's entirely the PR's choice.

The caveat is the 2/5 rule. The catch is that PRs are given flexibility to be outside Canada for extended periods of time no-questions-asked but that very much is as long as the PR spends 2 years in 5 in Canada.

I reference this to illuminate context. I do not mean, not at all, to minimize the weight of your wife's reasons for remaining abroad; even in my previous post, where I suggested the strength of the H&C case may be less than you apprehend, I did not mean that to suggest the case is weak.

Unless the situation falls into one of the more obvious scenarios, it is simply too speculative to forecast the outcome for the H&C case. A removed-as-a-minor case, especially for a PR who was actually settled and living in Canada prior to removal, yeah we can give that case good odds. At the other end, a PR well past the first five years who stays abroad for four of the last five years for a job opportunity, and who continues to be involved in that same employment, we can say the odds are not at all good.

All A Long-Way Round to Some Particulars:

If your wife can readily travel to Canada via the states, that is a very different scenario than a PR who must have either a valid PR card or a PR Travel Document in order to travel to Canada.

For the latter, for a PR who needs a PR TD to get to Canada once their PR card expires, having been physically IN Canada within the previous YEAR will usually make the difference in whether they get a special PR TD to come to Canada during an appeal, in the event the application for a PR TD based on H&C reasons is denied. If the PR has not been actually in Canada within the previous year, they will likely not be able to come to Canada pending an appeal. For the PR who has a spouse in Canada who can sponsor them anew, faster path to return to Canada could be not appealing, letting the PR TD denial terminate their PR status, and then proceed with the new sponsored PR application.

In contrast, for a PR who can travel via the U.S., DEPENDING on other factors (must emphasize that other factors can influence what is the best way to navigate this), it may be better to continue coming to Canada via the U.S. and in effect put off having to make the H&C case until there is a border control examination resulting in the preparation of a 44(1) Report . . . which as I referenced before, can be upheld by a second officer reviewing it (technically labeled the "Minister's Delegate," but in practice just another CBSA immigration officer) which results in a Removal Order, which the PR can then appeal; or based on the H&C case the second officer can set the Report aside. This is drilling into the weeds a bit, into some of the technicalities, and there are variations in how this goes, so again things are complicated and can get more complicated. But the overall take-away is that for the PR who can travel via the U.S. to get to Canada, no need to push a H&C decision unless and until Canadian authorities effectively force it. And if all that can be pushed down the road long enough, maybe your wife is finally in Canada to stay, which should help the H&C case in the appeal, before the IAD, but if that fails, and she loses the appeal, she is here and you can initiate an inland spousal sponsored PR application so she gets to stay. Subject to some variables. Did I mention it gets complicated?

Note: NO guarantee, but traveling TOGETHER, arriving at the Canadian PoE together, could help her get waived through, and if not waived through but subject to a formal RO determination, help the H&C case.

Which leads to . . .

Time PR and Citizen Spouses Spend Together:

If you are not "ordinarily residing together" abroad, time abroad together is not likely to be counted toward complying with the PR RO. But you can certainly present this information, about time together abroad, and ask that it be given credit as time accompanying-citizen-spouse abroad.

And for H&C purposes it should count as a significant Canadian tie in any event. Especially if your story is a coherent whole, about a couple planning all along to make a life together in Canada and balancing the PR's compelling need to be there for her parents, juggling priorities as best the two of you can, spending as much time together as the two of you can. This is not to forecast the outcome, just noting this is a factor that can help push the needle in a favourable direction.

BUT to be clear, I have just scratched the surface of some particular threads in your situation. It may be that a lawyer can offer a specific plan about how to best proceed.

Once again I did not answer your particular questions. I don't think the answers to these questions helps much, but I will offer this:

1. Is she going to receive, at some point in the future, an A44(1) report or other reports stating she's no longer a PR even she's abroad.

No. If she applies for a PR TD, a decision denying that application is a decision terminating PR status; but it is subject to appeal. Otherwise, a 44(1) Report will be prepared ONLY if she engages in a transaction that triggers a formal RO determination. Most common: application to enter Canada (made by just showing up at a PoE), but this procedure can be triggered by a PR card application made by a PR in breach. Note: it is not the 44(1) Report that terminates PR status, but the combination of the Report and issuance of a Removal Order. Again, subject to appeal.

2. Is it her best interest to stays away from Canadian customs which triggers RO examination?

Tough call. Remember, more time in Canada, more trips to Canada, tends to make a stronger H&C case. But, if she can travel via the U.S., and waits until 2024 to make the trip, and is ready to stay in Canada then, worst case scenario is Report & Removal Order, Appeal, and if she wins the appeal, all is OK; if she loses the appeal, you make an inland spousal sponsored PR application and she gets to stay.

3. Can she stay in her home country and wait till she's ready to come back to Canada on 2024? At that time she applies for a H&C PRTD and enter Canada.

If she can travel via the U.S., see response to 2.

If she would need a PR TD to travel, remember that if it is denied she will be stuck abroad pending an appeal unless she has been IN Canada with the YEAR prior to making the PR TD application.