Need advice: Running out of my residency obligation during the pandemic

[Kalandar]

As @scylla noted there was a typo. Moreover, that was altogether very clumsy wording on my part.

Since you have passed the fifth year anniversary of the date of landing, the main thing is that when calculating compliance with the PR Residency Obligation ONLY days in Canada within the previous five years count. Each new day is a new calculation, based on the new five year period. So what matters is WHAT DATE the calculation is based on. Typical dates for calculating compliance are:

-- date of arrival at a Port-of-Entry​

-- date a PR Travel Document is made​

-- date a PR card application is made, noting, however, the RO calculation can also be made at a later date, such as the date of an interview​

The date of landing is only relevant when calculating RO compliance up to the fifth year anniversary of the date of landing; a new PR has the full first five years in which to meet the obligation by spending at least 730 days in Canada during that five year period. (Again, this does not apply to you, since you have been a PR for more than five years.)

So yes, sure, if as of May 9, 2021, you had been IN Canada for 733 days since you landed (May 10, 2016), as of May 9, 2021 you were still in compliance with the RO. But the days you were here, in Canada, in May and June of 2016, are falling out of the five years that count. Since you are not here adding days, this means the number of days credit you have is decreasing, losing one day's credit for each corresponding day you were here five years ago.

Similarly, the dates on your PR card are NOT relevant when calculating RO compliance. This includes any new PR card you might get. (Date the PR card expires may influence whether a border official waives the PR through without a referral to Secondary and questions about RO compliance; but if and when the PR's compliance with the RO is being questioned, the date the PR card expires is NOT relevant.)

So for you, sorry for the repetition, your RO compliance is based on days IN Canada within the previous five years as of the day the calculation is done.

So, as of today, June 17, 2021, the relevant five years are June 17, 2016 to June 17, 2021.

So, if you arrive at a Port-of-Entry into Canada on July 3, 2021, the relevant five years are July 3, 2016 to July 2, 2021 (thus, days in Canada prior to July 3, 2016 will NOT count toward compliance with the RO).

So, if you apply for a PR Travel Document July 19, 2021, the relevant five years are July 19, 2016 to July 18, 2021 (thus, days in Canada prior to July 19, 2016 will NOT count toward compliance with the RO).



This goes back to the response from @bellaluna, stating that "Yours is not an H&C case." That would have been true back before you started losing credit for days in Canada in May 2016. You were in compliance with the RO then. But since you have remained outside Canada and are now losing credit for days here in 2016 as they pass the five-years-ago date, you are no longer in compliance with the RO.

Calculating RO compliance is simple. It is arithmetic, the calendar, and the geographical location of the PR. That is all that is taken into account (well, there are some exceptions, like accompanying a Canadian citizen spouse abroad, none relevant here). A number of days in Canada in the relevant five years. That's it.

That is prescribed by statute. IRCC has no authority to change it.

There is a relief valve however. H&C factors will be considered BEFORE a PR in breach of the RO is issued a decision terminating the PR's status.

Yes, the global pandemic is almost certainly being considered as a relevant H&C factor (but how much weight that carries will be very specific to the individual situation). But this does not affect the calculation of compliance with the RO itself. H&C factors only enter into things WHEN the PR is in BREACH of the RO. H&C factors may support a decision allowing the PR to keep status DESPITE failing to comply with the RO.

You are in breach. So yes, technically you have a H&C case. And if you apply for a PR TD, that will be the key factor determining whether a PR TD is approved and issued, or denied (a decision which terminates PR status, but which is subject to appeal). And yes, the impact of the global pandemic will almost certainly be a significant consideration in assessing the H&C factors in your case.

I added the word "technically" above because, for example, if you are able to travel to Canada before your PR card expires (does not look likely but if you could), or you were able to travel to Canada via the U.S. and enter at a land border crossing, given the overall situation (Covid et al) and how close you are to being in compliance, there is a fair to good chance the border officials would not even engage in a formal RO compliance examination, but just waive you into Canada, no formal decision on whether H&C reasons justify allowing you to retain PR status despite the breach of RO.

But a formal application for a PR TD requires the Visa Office to determine whether the PR is in compliance with the RO. You are not. So the H&C factors will quite likely determine whether you are issued a PR TD or not.

That's where it gets particularly tricky. I am not clear what @scylla means by "You mean H&C due to the pandemic? If so, then no, I wouldn't assume that H&C applies." If @scylla means a PR should not assume that the pandemic will be a sufficient H&C reason to overcome the RO breach, I agree. But I am highly confident, virtually certain, that the pandemic not only can be and will be, but must be considered in weighing the PR's reasons for remaining outside Canada as a H&C factor. How much weight it carries will vary from individual to individual depending on the individual's personal situation, including other reasons for being outside Canada and remaining outside Canada. Moreover, H&C factors are not considered standing alone but are weighed in context with all the other circumstances in the individual case.

Thus, that is why I previously mentioned that how long it has been since you were last in Canada is a significant factor. Other factors include your ties in Canada versus your ties outside Canada. There are many topics here where H&C factors are discussed in depth. Reasons for being outside Canada before the pandemic are a factor. Your credibility is a factor.

As I concluded my previous post: . . . once you pass the in-breach-threshold . . . the dynamics shift and how it goes can depend quite a bit on whether you are a person perceived to be deserving of keeping PR status despite having failed to comply with the RO.

This was the kind of response and explanation I was looking for to really digest how things work at the back end which impacts the dynamics either way. I really wish I had known this part of the calculation earlier. This has prompted me to get my tickets done for July 2nd and I will reach Canada a couple of days before my PR expires. And this gets me to seek out a clarification on 2 points now before I asked this I must answer your question about my being outside since then, it's 613 days so far. Not sure how the officer would treat this.

1) Now that I am short of my RO days for certain, what would be the process like when I arrive in Canada, the recuperations I might face and the steps I need to take to be on a safer side.

2) I did send my application for PR renewal from my home country which arrived in Sydney on May 14, and the reason I send it from OUTSIDE Canada was only that I had plans to reach Canada at the earliest while it gets processed but the restrictions got even stricter and harsh. So, do I need to do anything on this or communicate with IRCC about this once I reach Canada?

@dpenabill Thanks a ton for this treasure of knowledge you shared. I appreciate it a lot,

 

[dpenabill]

This has prompted me to get my tickets done for July 2nd and I will reach Canada a couple of days before my PR expires. And this gets me to seek out a clarification on 2 points now before I asked this I must answer your question about my being outside since then, it's 613 days so far. Not sure how the officer would treat this.

1) Now that I am short of my RO days for certain, what would be the process like when I arrive in Canada, the recuperations I might face and the steps I need to take to be on a safer side.

2) I did send my application for PR renewal from my home country which arrived in Sydney on May 14, and the reason I send it from OUTSIDE Canada was only that I had plans to reach Canada at the earliest while it gets processed but the restrictions got even stricter and harsh. So, do I need to do anything on this or communicate with IRCC about this once I reach Canada?

You have come and gone. You should be relatively familiar with the screening at the airport PoE upon arrival. Others here are more familiar than I am regarding the particular details these days. As a PR you must be allowed to enter Canada but that can be with conditions. In regards to Covid-19 related measures and conditions for Canadians arriving here, there are others here more familiar with this.

I cannot give advice. I should NOT give advice for many reasons.

Assuming you are actually able to pull off traveling before your PR card expires, which is not a given even if you have tickets (things are still off-kilter and subject to sudden diversions given the covid situation), as I have previously noted you might be waived through without a problem. Not even asked much about RO compliance. But there is a significant risk otherwise.

I can say the PR card application was not the best idea. If it has been opened and processing has started, that might trigger a flag to your file and increase the odds of a more formal or even more strict RO compliance examination at the PoE. Others and I have detailed the process in many topics here, which involves a lot of if-this-then-that or if-that-then-that-other-that, with many forks in the path depending on the extent to which the border officials you deal with decide to pursue things. I am not up for revisiting the details of that today, but you could go prowling other topics for what others and I have previously described.

It ranges from being waived through as you have been before to being questioned in Secondary. A Secondary examination can result in being issued a 44(1) for Inadmissibility due to a breach of the RO together with a Removal Order. The latter is the worst that could happen. Even if that happens you will still be allowed to proceed into Canada. You can appeal. You can get a lawyer to help with the appeal.

As for how to approach answering questions, again I cannot and should not offer advice . . . but I will say that to my view . . . again, assuming you are actually able to pull off traveling before your PR card expires . . . just being prepared to clearly tell your true story is probably the best approach a PR can make. But of course that includes being upfront, simply honest, about how much you have been abroad, and why. I realize there are many scenarios in life, perhaps most scenarios in life, where how things go depends a lot on presentation, on painting the best picture, spinning things one's way. That is probably true to some extent when a PR in breach of the RO approaches the PoE. But the indicators suggest that simple honesty works the best in this particular scenario. After all, you are who you are, and you have been doing what you have been doing, for the reasons you had. You did not comply with the RO. That is what it is. Telling the truth tends to be both easier and more consistent than trying to spin a story. Bureaucrats, especially those who are also engaged in a kind of law enforcement role, like border officials, tend to favour simple, honest explanations, "just the facts" sort of explanations, more than excuses. Excuses tend to ring hollow if not fake. I may come across a bit glib saying this, but being the kind of person who appears to DESERVE to keep PR status, making a good impression, probably racks up a lot more favourability points than making good arguments. Very difficult to PROVE you DESERVE to keep PR status, so the objective is to PERSUADE the officers you deserve to keep PR status.

That is not really the "standard." But in many respects it is the gist of it.

There are many who approach these things very differently than that. And sometimes that quite likely works well for them.

But the officers you deal with have heard a thousand stories, and many more, and they sort things out far better than many in forums like this give them credit. If they sense evasiveness, let alone smell subterfuge, that tends to send things down the more problematic path.

Should add that in being prepared to tell your story, probably should be prepared to give decently precise information about the dates you were in Canada, where you were in Canada, what you were doing.

 

[Kalandar]

You have come and gone. You should be relatively familiar with the screening at the airport PoE upon arrival. Others here are more familiar than I am regarding the particular details these days. As a PR you must be allowed to enter Canada but that can be with conditions. In regards to Covid-19 related measures and conditions for Canadians arriving here, there are others here more familiar with this.

I cannot give advice. I should NOT give advice for many reasons.

Assuming you are actually able to pull off traveling before your PR card expires, which is not a given even if you have tickets (things are still off-kilter and subject to sudden diversions given the covid situation), as I have previously noted you might be waived through without a problem. Not even asked much about RO compliance. But there is a significant risk otherwise.

I can say the PR card application was not the best idea. If it has been opened and processing has started, that might trigger a flag to your file and increase the odds of a more formal or even more strict RO compliance examination at the PoE. Others and I have detailed the process in many topics here, which involves a lot of if-this-then-that or if-that-then-that-other-that, with many forks in the path depending on the extent to which the border officials you deal with decide to pursue things. I am not up for revisiting the details of that today, but you could go prowling other topics for what others and I have previously described.

It ranges from being waived through as you have been before to being questioned in Secondary. A Secondary examination can result in being issued a 44(1) for Inadmissibility due to a breach of the RO together with a Removal Order. The latter is the worst that could happen. Even if that happens you will still be allowed to proceed into Canada. You can appeal. You can get a lawyer to help with the appeal.

As for how to approach answering questions, again I cannot and should not offer advice . . . but I will say that to my view . . . again, assuming you are actually able to pull off traveling before your PR card expires . . . just being prepared to clearly tell your true story is probably the best approach a PR can make. But of course that includes being upfront, simply honest, about how much you have been abroad, and why. I realize there are many scenarios in life, perhaps most scenarios in life, where how things go depends a lot on presentation, on painting the best picture, spinning things one's way. That is probably true to some extent when a PR in breach of the RO approaches the PoE. But the indicators suggest that simple honesty works the best in this particular scenario. After all, you are who you are, and you have been doing what you have been doing, for the reasons you had. You did not comply with the RO. That is what it is. Telling the truth tends to be both easier and more consistent than trying to spin a story. Bureaucrats, especially those who are also engaged in a kind of law enforcement role, like border officials, tend to favour simple, honest explanations, "just the facts" sort of explanations, more than excuses. Excuses tend to ring hollow if not fake. I may come across a bit glib saying this, but being the kind of person who appears to DESERVE to keep PR status, making a good impression, probably racks up a lot more favourability points than making good arguments. Very difficult to PROVE you DESERVE to keep PR status, so the objective is to PERSUADE the officers you deserve to keep PR status.

That is not really the "standard." But in many respects it is the gist of it.

There are many who approach these things very differently than that. And sometimes that quite likely works well for them.

But the officers you deal with have heard a thousand stories, and many more, and they sort things out far better than many in forums like this give them credit. If they sense evasiveness, let alone smell subterfuge, that tends to send things down the more problematic path.

Should add that in being prepared to tell your story, probably should be prepared to give decently precise information about the dates you were in Canada, where you were in Canada, what you were doing.

Yes, you are right about the fact that I made a blunder sending the PR renewal application, which can have severe consequences. I did it only I confirmed it with someone in IRCC over a call and the person told me that this is safe to send application from India, the only thing is they won't send the card to India, I was anyway fine with that as I had plans to leave to Canada shortly but the 2nd wave here really spoilt it.

You have really made some fantastic points on dealing with the situation at the PoE, which comes down to PERSUASION than to PROVE things to the officials. I never heard abt the Secondary examination and looks like it's important to prepare for such a test in advance than to falter before them.

I have made my tickets for July 2nd, though the flight bans are till June 21, but I am not really certain if the restrictions would be any better post that.

Thanks again for all those points which has made things clear about the ground reality than what it looks like.

 

[stan_shk]

Hi @armoured @scylla , thanks for your reply. I am considering traveling to Canada soon. I have been sloppy in thinking that the 730 days are counted from the issue date of the PR card but from one of the above posts it is clear that they are counted from the initial landing date. Thus as of today, I am 25 days late.

Where I currently live we have a travel restriction (both inbound and outbound), therefore one has to get an exemption to travel and it is hard to get one. I got my exemption in January 2021 and had packed my bags to travel in February 2021. However, I fell sick in mid Jan and was hospitalized. I was also diagnosed with Diabetes. I am aware that Diabetes increases one’s risk of severe outcome from exposure to COVID-19 -- https://www.canada.ca/en/public-health/services/publications/diseases-conditions/people-high-risk-for-severe-illness-covid-19.html (I also have Bronchitis since childhood). With the variants etc, I have been meaning to delay my travel but reached this point — missed the 730 day deadline. Ideally I would wait for a job offer but I have accepted it would only add to the wait hence I am not waiting on it anymore.

If I travel now, I would rather wish to be not sent back eventually (I am aware one is admitted but may be sent back through the process). I cannot return to where I am because of border closures.

I reached out to the local VAC with an enquiry describing the above circumstances and here is their reply “we do not calculate odds of successful applications or engage in pre-application hypothetical discussions, you will need to apply and make your case to the officer and they will decide.”

I know well that no one can advise me but what is the gut feeling in this scenario? 25 days late with reasonable circumstances of health and the Covid-19 pandemic that delayed travel, with no place to return given border closures and long queues in returning? Since missing the deadline, I am not traveling as there is no clear answer even from VAC (and return borders are closed) and the more I delay, the more the chances are to be sent back.

Cheers.

 

[armoured]

I know well that no one can advise me but what is the gut feeling in this scenario? 25 days late with reasonable circumstances of health and the Covid-19 pandemic that delayed travel, with no place to return given border closures and long queues in returning? Since missing the deadline, I am not traveling as there is no clear answer even from VAC (and return borders are closed) and the more I delay, the more the chances are to be sent back.

Objective standard advice is the sooner you return the better.

Gut feeling is that even before covid they may not have bothered with a less than 30-day absence, and with covid and factual circumstances of your case, unlikely they would start the report process.

The most important part here is 25 days as of today and there's constant repeat postings of those who ask at X days out of compliance and get one reaction, and then they ask again every 60 days ad (not quite) infinitum. No-one can tell you at what point it will become a problem. If you return to Canada in the next two weeks (for example), I wouldn't change my gut feeling reaction.

That said - usual caveats (I'm not cbsa and not up to me), and I haven't looked through your post history or details, just based on your post - return soonest and you'll likely be able to sleep easily. The more you delay, the more you'll worry (and have reason to).

 

[scylla]

Hi @armoured @scylla , thanks for your reply. I am considering traveling to Canada soon. I have been sloppy in thinking that the 730 days are counted from the issue date of the PR card but from one of the above posts it is clear that they are counted from the initial landing date. Thus as of today, I am 25 days late.

Where I currently live we have a travel restriction (both inbound and outbound), therefore one has to get an exemption to travel and it is hard to get one. I got my exemption in January 2021 and had packed my bags to travel in February 2021. However, I fell sick in mid Jan and was hospitalized. I was also diagnosed with Diabetes. I am aware that Diabetes increases one’s risk of severe outcome from exposure to COVID-19 -- https://www.canada.ca/en/public-health/services/publications/diseases-conditions/people-high-risk-for-severe-illness-covid-19.html (I also have Bronchitis since childhood). With the variants etc, I have been meaning to delay my travel but reached this point — missed the 730 day deadline. Ideally I would wait for a job offer but I have accepted it would only add to the wait hence I am not waiting on it anymore.

If I travel now, I would rather wish to be not sent back eventually (I am aware one is admitted but may be sent back through the process). I cannot return to where I am because of border closures.

I reached out to the local VAC with an enquiry describing the above circumstances and here is their reply “we do not calculate odds of successful applications or engage in pre-application hypothetical discussions, you will need to apply and make your case to the officer and they will decide.”

I know well that no one can advise me but what is the gut feeling in this scenario? 25 days late with reasonable circumstances of health and the Covid-19 pandemic that delayed travel, with no place to return given border closures and long queues in returning? Since missing the deadline, I am not traveling as there is no clear answer even from VAC (and return borders are closed) and the more I delay, the more the chances are to be sent back.

Cheers.

You won't be sent back. You'll be allowed into Canada regardless. The question is whether CBSA will report you for failing to meet the residency obligation or not. Even if you are reported, you will still be allowed to enter Canada to go through the hearing and potentially appeal process which can take quite a long time.

I can't comment on your chances of being reported.