Permanent Residence Status - Expire due to Covid

[armoured]

at some point IRCC will start having to be more strict and (more or less formally, probably not publicly) stop any covid-leniency because such covid leniency can't be forever.

To clarify this: at some point down the road, there will be cases of PRs requesting leniency either through PRTD applications or at border and getting refused, because - at some point - the argument that "I couldn't travel" will not be convincing when all covid-related travel restrictions were lifted 6, 12, 24, 36 months before the date of examination.

Most likely the cases of outright denial will at first be the more extreme instances. And it will be difficult to see the trend/know what's happening, because individual circumstances matter - eg if (for example) covid continues to rage on in India much longer than eg the UK/USA, the approach may differ depending on where the individual is travelling from (as well as age, family, etc., etc).

 

[cic86]

@armoured The point I'm making is that if the applicant is not able to meet the RO because of Covid then that explanation should suffice specially for PRs depending on 2020 and 2021 for completion of their ROs. Infact it should be a no questions asked checkbox on the PR renewal form by now rather than going through the highly unpredictable humanitarian route which requires all sorts of explanations and evidence for RO proof which puts the PR totally up in the air. Would you be comfortable going down the humanitarian route to save your PR status? I doubt it and I don't think anyone else would be either.

Furthermore, Nobody knows when Covid is going to end, it's gone on for more than a year now even with vaccines. The vaccines aren't foolproof otherwise Canada wouldn't expecting Covid testing and quarantine restrictions for people with vaccinations.
And everytime they think they have Covid under control, it just mutates into a more virulent form which then goes on an infection rampage like it's happened in India now and happened in UK and South Africa in the past. Canada has issued a 1 month travel ban on India and Pak and are expected to extend the ban because Covid is not abating in India even with lockdowns.

Canada is looking at issuing vaccine passports because of Covid, so why can't they update the RO for the same when these changes are clear proof that Covid is massively impacting everyone?

It's simple , Any PR holder who is depending on 2020 onwards to meet their RO should have their RO relaxed without explanations.

 

[steaky]

@armoured The point I'm making is that if the applicant is not able to meet the RO because of Covid then that explanation should suffice specially for PRs depending on 2020 and 2021 for completion of their ROs. Infact it should be a no questions asked checkbox on the PR renewal form by now rather than going through the highly unpredictable humanitarian route which requires all sorts of explanations and evidence for RO proof which puts the PR totally up in the air. Would you be comfortable going down the humanitarian route to save your PR status? I doubt it and I don't think anyone else would be either.

Furthermore, Nobody knows when Covid is going to end, it's gone on for more than a year now even with vaccines. The vaccines aren't foolproof otherwise Canada wouldn't expecting Covid testing and quarantine restrictions for people with vaccinations.
And everytime they think they have Covid under control, it just mutates into a more virulent form which then goes on an infection rampage like it's happened in India now and happened in UK and South Africa in the past. Canada has issued a 1 month travel ban on India and Pak and are expected to extend the ban because Covid is not abating in India even with lockdowns.

Canada is looking at issuing vaccine passports because of Covid, so why can't they update the RO for the same when these changes are clear proof that Covid is massively impacting everyone?

It's simple , Any PR holder who is depending on 2020 onwards to meet their RO should have their RO relaxed without explanations.

Currently, Canada expects every travelers ( vaccinated or partially vaccinated or not vaccinated) to provide negative covid test and 14 days quarantine and other restrictions.

 

[armoured]

@armoured The point I'm making is that if the applicant is not able to meet the RO because of Covid then that explanation should suffice specially for PRs depending on 2020 and 2021 for completion of their ROs.

I do see your point; I just think it is highly unlikely - the policy is that time abroad does not count towards RO, and that requirement is in law.

The other side of that is that in practice the residency obligation is already flexible (2 in 5 is not a high bar), and this is further 'relaxed' by considerable lenience for circumstances.

Providing an explanation is hardly an imposition. And so far, there is little indication that 'because covid' is not being treated as a real reason.

And I did note that eventually I can see an argument for some kind of policy about PR card renewal, to deal with eg cases where a PR is continuously in Canada and mostly remaining in Canada but unable to renew PR card. (Which - let's be clear - right now means two years in Canada, plus time to renew the card). And one of the reasons that is an issue is partly about the documentation PRs need at the provincial level to access important provincial services, so it's possible an agreement with the provinces would obviate that. (Some will make the argument that need to get PRTD is a serious constraint, which, fair enough, it is a hassle)

I also see your point about uncertainty. I don't entirely disagree with that - there is an argument that making public some simplified approach would be beneficial (eg 'IRCC will treat "covid time" [dates] as sufficient for issuing PRTD'); but I've mentioned before, actually formulating the language for this is not easy, particularly while covid still ongoing. (The goal of such a policy would more likely be to make administration easier for IRCC, basically).

But your idea that they will just 'give' everyone eg 500 days RO? Not possible (in my reading) under law, and they are not going to change the law for this. Not going to happen.

[I think some of the moves IRCC is doing right now - the recently announced programs - indicate the direction they are more likely to take: make it easier for those in Canada and with attachments to Canada under non-permanent status to convert their status into a permanent status. That's just my reading of the tea leaves, and I could be wrong. That doesn't mean they'll make it harder for existing PRs to return, just that the focus will be on those who are demonstrating they wish to live and work in Canada by actually doing so to remain.]

 

[Naheulbeuck]

More and more people are going to find it hard to meet the RO now because of multiple direct and indirect reasons due to Covid. An example of an indirect reason would be jobs. I hope they will review the RO in light of the pandemic.

Plain wrong through and through.

This is just a mistake and this is one many people make about the RO. The purpose of PR is to settle permanently in Canada, hence the name permanent residence. Acquiring PR means that you plan to come live permanently in Canada, hence why they ask for proof of intent when you apply from abroad.

The RO, is lenient. Despite the actual goal of permanently residing in Canada, it gives people the possibility to reside outside 3 years in any 5 years period.

Now you assume that since you can you should and that therefore when something unforeseen happens, you should be allowed for more. This is plainly wrong. The leniency of the RO, 2 out of 5 years in Canada, exists already to help PR deal with unforeseen situations. Covid fits exactly the purpose of the existing leniency.

Furthermore, the H&C process exists for people who really had extended circumstances that prevented them to meet the RO, but those should be fairly limited, not "I wanted to spend 2.5 years out of the country because it was convenient for me, and then horror something actually unforeseen, out of my own control happened and I couldn't meet the RO, well it wasn't my fault you know, how could I have known while I was taking a risk 2.5 years ago that a risk came with consequences!"

The fact that many people use that leniency for their own personal convenience does not mean that they should be allowed to tick a box for unforeseen circumstances, it just means that they are the kind of people who when given an inch take a mile.

Remember that Canada is not forcing you to live permanently in Canada, it is a choice you make when you apply for PR, and it is a choice you make when you cut it close that yes if something unforeseen now happens, you may lose your PR. You request that people should be able to make choices, and then amend the consequences to better fit their needs, well that's not how it should or does work.

And as mentioned before, and highlighted by Armoured, the leniency is already likely extended, but in cases of people being close to failing their RO before covid, I would not be surprised to see refusals, it is going to be about the facts of each case and whether someone was pushing it already before covid.

 

[canuck78]

@armoured The point I'm making is that if the applicant is not able to meet the RO because of Covid then that explanation should suffice specially for PRs depending on 2020 and 2021 for completion of their ROs. Infact it should be a no questions asked checkbox on the PR renewal form by now rather than going through the highly unpredictable humanitarian route which requires all sorts of explanations and evidence for RO proof which puts the PR totally up in the air. Would you be comfortable going down the humanitarian route to save your PR status? I doubt it and I don't think anyone else would be either.

Furthermore, Nobody knows when Covid is going to end, it's gone on for more than a year now even with vaccines. The vaccines aren't foolproof otherwise Canada wouldn't expecting Covid testing and quarantine restrictions for people with vaccinations.
And everytime they think they have Covid under control, it just mutates into a more virulent form which then goes on an infection rampage like it's happened in India now and happened in UK and South Africa in the past. Canada has issued a 1 month travel ban on India and Pak and are expected to extend the ban because Covid is not abating in India even with lockdowns.

Canada is looking at issuing vaccine passports because of Covid, so why can't they update the RO for the same when these changes are clear proof that Covid is massively impacting everyone?

It's simple , Any PR holder who is depending on 2020 onwards to meet their RO should have their RO relaxed without explanations.

Unless you are living in a country where air travel has stopped you have had the ability to return to Canada. For example although India may now have a travel ban there has been significant travel between Canada and India during the majority of the past year. We see this over and over again on this forum, people wait until the 3 year mark to return to Canada but then want leniency because something comes up at the last minute or they have a family emergency during the 2 year requirement. People need to plan for buffer time in their plans to meet their RO but people never think anything will happen to them.

 

[armoured]

Now you assume that since you can you should and that therefore when something unforeseen happens, you should be allowed for more. This is plainly wrong. The leniency of the RO, 2 out of 5 years in Canada, exists already to help PR deal with unforeseen situations. Covid fits exactly the purpose of the existing leniency.

Furthermore, the H&C process exists for people who really had extended circumstances that prevented them to meet the RO, but those should be fairly limited
...
...but in cases of people being close to failing their RO before covid, I would not be surprised to see refusals, it is going to be about the facts of each case and whether someone was pushing it already before covid.

Unless you are living in a country where air travel has stopped you have had the ability to return to Canada. For example although India may now have a travel ban there has been significant travel between Canada and India during the majority of the past year. We see this over and over again on this forum, people wait until the 3 year mark to return to Canada but then want leniency because something comes up at the last minute...

I don't disagree with either of you here, at least not outright. But I'd also add there's nothing wrong with PAs outside and not compliant with the RO hoping for, requesting, and being granted additional leniency in the form of H&C relief. What they don't 'get' is certainty about outcomes.

And speculation about how strict IRCC/CBSA/IAD on appeal will be with respect to those who were outside Canada longer and did not return to Canada during covid is ... speculation. It will likely be looked at in more detail acc to individual circumstances (eg some may get serious consideration about choosing not to return to Canada because of covid fear or health concerns or whatever - it likely will not be limited just to cases of outright travel bans, although those are undoubtedly a more serious reason for H&C relief).

What we can say with a very high degree of confidence is this: those who wish certainty about how they will be treated under the residency obligation have a pretty simple route - stay in compliance with the residency obligation. If you do so, you will have certainty about ability to travel, enter, renew your card, etc. You will have no need for any additional discretionary leniency or H&C relief - period. This includes planning for and 'building in' enough residency days in Canada to account for family responsibilities and 'ordinary' life events or unforeseen circumstances. (And for truly compelling unforeseen circumstances, H&C relief is at least somewhat predictable - no-one who became out of compliance because of being in a coma, for example, has likely ever been refused).

Everyone else: yes, you will face some uncertainty about what happens when examined eg at the border or when applying to renew a card or when abroad and requesting a PRTD. You will face some risk about what will happen, and - at times - difficult situations or concerns.

Under the current RO compliance regulations, it really is that simple; if uncertainty is a serious problem, and you wish to avoid it, remain compliant with the RO. The existing lenience (the two-in-five) of the RO provides for certainty under a rather broad range of circumstances, with some additional forbearance - but not certainty - provided for in the other parts of the regs.

 

[cic86]

I do see your point; I just think it is highly unlikely - the policy is that time abroad does not count towards RO, and that requirement is in law.

The other side of that is that in practice the residency obligation is already flexible (2 in 5 is not a high bar), and this is further 'relaxed' by considerable lenience for circumstances.

Providing an explanation is hardly an imposition. And so far, there is little indication that 'because covid' is not being treated as a real reason.

And I did note that eventually I can see an argument for some kind of policy about PR card renewal, to deal with eg cases where a PR is continuously in Canada and mostly remaining in Canada but unable to renew PR card. (Which - let's be clear - right now means two years in Canada, plus time to renew the card). And one of the reasons that is an issue is partly about the documentation PRs need at the provincial level to access important provincial services, so it's possible an agreement with the provinces would obviate that. (Some will make the argument that need to get PRTD is a serious constraint, which, fair enough, it is a hassle)

I also see your point about uncertainty. I don't entirely disagree with that - there is an argument that making public some simplified approach would be beneficial (eg 'IRCC will treat "covid time" [dates] as sufficient for issuing PRTD'); but I've mentioned before, actually formulating the language for this is not easy, particularly while covid still ongoing. (The goal of such a policy would more likely be to make administration easier for IRCC, basically).

But your idea that they will just 'give' everyone eg 500 days RO? Not possible (in my reading) under law, and they are not going to change the law for this. Not going to happen.

[I think some of the moves IRCC is doing right now - the recently announced programs - indicate the direction they are more likely to take: make it easier for those in Canada and with attachments to Canada under non-permanent status to convert their status into a permanent status. That's just my reading of the tea leaves, and I could be wrong. That doesn't mean they'll make it harder for existing PRs to return, just that the focus will be on those who are demonstrating they wish to live and work in Canada by actually doing so to remain.]

Providing an explanation is not an issue but leaving the PR status upto chance is because you're at the mercy of the immigration officer who will determine whether your reasons are valid or not.

You're right in that the focus is on people who are currently in Canada which can be clearly seen from the recent PR handouts for people currently residing in Canada, so I would say it's not a question of the difficulty of implementing it, rather a lack of political will. Vaccine passports are not easy to implement either but they're going for it.

 

[armoured]

Providing an explanation is not an issue but leaving the PR status upto chance is because you're at the mercy of the immigration officer who will determine whether your reasons are valid or not.

You can see my post above: those who are asking for discretionary relief for not being in compliance with the residence obligation are subject to the discretion of those examining, with rights of appeal, etc.

You can call this being 'at the mercy of', but consider that the alternative is ... no mercy; and blind implementation of the clearly written, already-lenient rules. You are welcome to decide which you would prefer, of course.

Those who wish not to leave it up to chance can avoid the uncertainty by ... remaining compliant with the residency obligation.

 

[canuck78]

Providing an explanation is not an issue but leaving the PR status upto chance is because you're at the mercy of the immigration officer who will determine whether your reasons are valid or not.

You're right in that the focus is on people who are currently in Canada which can be clearly seen from the recent PR handouts for people currently residing in Canada, so I would say it's not a question of the difficulty of implementing it, rather a lack of political will. Vaccine passports are not easy to implement either but they're going for it.

The focus on inland PR applicants is for new PRs not existing PRs. If you want to reduce your chances of being reported you should return to Canada as soon as possible.

 

[armoured]

You can see my post above: those who are asking for discretionary relief for not being in compliance with the residence obligation are subject to the discretion of those examining, with rights of appeal, etc.
...
Those who wish not to leave it up to chance can avoid the uncertainty by ... remaining compliant with the residency obligation.

A follow-up point on this: we often refer here to 'chance' or probability of a PR getting reported or PRTD denied or what happens in the process. Or uncertainty for the PR who is out of compliance and returns. But that's not correct, even though it's a reasonable way to summarize.

The point is: it's not random. It's not arbitrary. There is a system, process, guidelines for how officers should evaluate and implement, and there is an review (appeals) process that provides some feedback to those within the system about decisions (after the fact at least).

There may be/are review or similar processes before a final decision if eg a certain authority level is required for certain decisions - this is notably the case, for example, at ports of entry where a CBSA officer recommends and a Minister-Delegate must sign off - in what some contexts is called a "Second Set of Eyes" review.

But it is clear that decisions require judgment. In other words, some balancing or weighing of various factors (call them H&C or reasons generally).

@dpenabill has noted here that one of those factors that may have significant weight is credibility. That is, does a PR in examination appear credible - which may include such simple factors as 'does the PR appear honest and appear to present a truthful, consistent and possibly coherent narrative.'

All of this, as noted, subject to (in most cases) appeal or post-facto review.

This was characterized above as being "at the mercy of" an officer. This can be rephrased in a couple of important ways: as I noted, if one is asking for something under discretionary authority, it is almost a truism that this involves someone using discretion to make a decision.

This doesn't mean that decisions can't be wrong or appear arbitrary, mistakes can be made, outside factors can influence decisions, etc. Some of these elements - notably credibility - are hard to judge from the outside or out of context.

But again: this doesn't mean they are random or it is just left up to chance (even if there may be an element of chance, eg there are two CBSA officers on duty and one is more strict than the other, and you get the more strict one).

In referring to it here, we refer to 'chance' or luck or probabilities or whatever. Partially, this is shorthand: we do not know and cannot know all of the information relevant to a file - CBSA officers know much more than we do. We do not and cannot know whether an applicant here has left out critical information. Does the PR have a flag on their file from some previous interaction (known to them or not?). And a multitude of other factors.

We also don't know what specific priorities or day-to-day things are happening at IRCC (are they sending alerts internally to 'watch out for' eg particular fraudulent patterns that have been discovered and that results in more serious examination).

This has to be boiled down and one of the ways it is boiled down or simplified in discussions is the word 'chance' or luck. It is not just luck - although there may be elements of chance - because there is a system. We don't know how the various weights in each individual case will be seen or considered by officers (or on appeal).

From the outside (eg here), this can seem to be 'chance' - or much more chance or probability - but the issue often is we don't know all of the factors (and cannot know them). We can give some rough guidance based on factors we do know - eg being only one day out of compliance is much less likely to be an issue than being 729 days out of compliance - but that's it.

To revert to previous point: if you don't wish to be subject to this (perceived) chance or uncertainty, the answer is still quite simple - stay in compliance. Once in Canada, remain in Canada until in compliance before having interactions with IRCC (at border or internally).

 

[dpenabill]

Let's be clear: The RO is NOT designed or intended to facilitate PRs living abroad for extended periods of time EVEN THOUGH it ALLOWS for that. What the law allows is not necessarily what the law intends, and this is particularly the situation in regards to the PR RO.

Make no mistake: the purpose for a grant of PR status is so the individual given PR status can settle and live IN Canada permanently.

The PR RO, in contrast, is intended to be liberal enough to give PRs the flexibility to deal with real life contingencies that compel spending extended periods of time abroad. It is intended to in effect take the government out of an individual's personal decision-making. A PR does NOT need to worry if the government approves or sanctions the reasons why a PR is compelled to spend so much time abroad . . . which the law allows, up to three years in five . . . that is, the PR does not need to explain or justify spending so much time abroad so long as the PR does not remain outside Canada for more than three years . . . before the fifth year anniversary of landing, or thereafter, within the last five years.

What about Covid-19 and the global pandemic?

The following observations are not intended to judge anyone, not their situation, not their choices. On the contrary, these observations are intended to make it more clear how and when relief from a failure to comply with the RO works. Even in the times of Covid-19.

Spoiler alert 1: as much leniency over and above the RO itself it appears border officials may be allowing, especially these days in the wake of this pandemic, PRs should recognize that there is a huge substantive difference between being in compliance and crossing that threshold into non-compliance. It's the difference between having valid PR status versus being in BREACH . . . as a MATTER of LAW. A PR in breach is *INADMISSIBLE* and is thus AT RISK of a decision terminating PR status UNLESS the PR PROVES he or she should be allowed relief based on Humanitarian and Compassionate considerations, which it should be well understood, demands meeting a rather stringent standard and ordinarily depends on showing very compelling reasons for why H&C relief should be given.

Spoiler alert 2: The PR RO is fixed. It is not changing. Not anytime soon. (And if changes were coming, odds are high that would be in the direction of a more strict rule, not a more lenient one.)

At this juncture it warrants mentioning that @armoured, @Naheulbeuck, and @canuck78 have offered important, illuminating observations above. I do not mean to belabor what they have appropriately observed.

More and more people are going to find it hard to meet the RO now because of multiple direct and indirect reasons due to Covid. An example of an indirect reason would be jobs. I hope they will review the RO in light of the pandemic.

PRs who have, as the grant of PR is intended, settled in Canada and are PERMANENTLY living in Canada, consistent with the reason why the Canadian government gave them PR status, should have no difficulty meeting the PR RO . . . regardless the impact of Covid, directly or indirectly.

So this observation, about "more and more people," is really ONLY about PRs who were living abroad before the pandemic began. This is a limited number. There was nothing wrong, let alone illegal, about them living outside Canada.

But living outside Canada is not in accord with the purpose of their PR, so to the extent there are RISKS involved, the PR is generally the party bearing those risks. As @cic86 repeatedly references, people cannot predict the future. What that means, though, in this context, is that those who make plans depending on how things will go in the future bear the risk the future might not be consistent with those plans.

A PR living abroad, any PR living abroad, should be (1) cognizant of the Residency Obligation, and (2) aware of the risk that stuff-happens. This is especially salient for those who are cutting-it-close. The more the PR is cutting-it-close, the bigger the risk stuff-happens which might interfere with that individual being able to meet his or her OBLIGATION to comply with Canada's rather generous PR RO . . . that is if that PR wants to retain PR status.

We should be clear about what the "obligation" is, leading to . . .

"I hope they will review the RO in light of the pandemic."​

I am not sure who "they" are in this statement, but whoever "they" are . . .

To be clear, the Residency Obligation is prescribed by statute. It is fixed. It is based on counting days. Compliance is not determined based on any subjective criteria at all. It is just an arithmetical calculation based on facts in existence.

It is possible that Parliament might consider a Bill to amend the statute but the prospect of that happening anytime in the near future is near nil . . . that is, to be frank, it is NOT going to happen. There is simply NO chance that the Immigration and Refugee Protection Act will be amended to revise the PR RO.

Otherwise . . . Neither IRCC nor CBSA have any authority, NONE at all, to review or amend or modify the RO. In light of the pandemic or in light of any thing else.

So the long and short, and sideview as well, is that the RO is fixed. It is based on counting days. Compliance is not determined based on any subjective criteria at all. It is just an arithmetical calculation based on facts in existence.

What that means is important. It means a failure to meet the RO, based on counting days, results in the PR being in BREACH of the RO as a MATTER of LAW. The PR in breach is inadmissible . . . UNLESS the PR has a persuasive H&C case.

That is, Covid or otherwise, for those PRs who fail to comply with the RO, keeping their PR status is dependent on a favourable H&C decision (be that formal, or an informal waive through the Port-of-Entry). NO WAY AROUND THAT. That is the law.

The point I'm making is that if the applicant is not able to meet the RO because of Covid then that explanation should suffice specially for PRs depending on 2020 and 2021 for completion of their ROs. Infact it should be a no questions asked checkbox on the PR renewal form by now rather than going through the highly unpredictable humanitarian route which requires all sorts of explanations and evidence for RO proof which puts the PR totally up in the air.

So far, assuming Covid-19 has been a compelling reason for a particular PR to remain outside Canada, it is simply NOT the case that Covid-19 alone can fully explain why a PR has been outside Canada for more than three years. At most, at the very best, Covid can explain just two things:

-- that it is the reason for remaining outside Canada for 15 months as of now . . . (which could get longer as we go but it should be recognized that the weight of this "reason" for continuing to remain abroad is likely to be diminishing significantly in the coming months)​

-- that it is the reason why a planned move to Canada was delayed . . . again, for up to 15 months as of now​

The caveat that those are "at most, at the very best," is not a casual or insignificant limitation. Canada has not, not in any way, blocked PRs from returning to Canada during this pandemic. The extent to which covid-19 MIGHT explain why a PR remained abroad, or otherwise delayed moving or returning to Canada, is absolutely PERSONAL. Canada not only allowed PRs to come to Canada during this pandemic, but early on had engaged in proactive measures to facilitate PRs returning to Canada.

That said, and noted, sure, yes, for many PRs who were living abroad when the pandemic started, even though the Canadian government was OK with the PR coming to Canada, for this or that individual PR the impact of the global pandemic is at least a significant part of the explanation for why that individual did not return to Canada sooner. And for sure, the availability of employment in Canada undoubtedly figured into this for many.

Every indication is that government officials, be that CBSA border officials, IRCC Visa Office officials abroad, and IRCC processing agents and officers handing PR card applications, will take this factor into account if and when a particular PR is examined for RO compliance and determined to be in breach, and is thus depending on H&C relief.

As @armoured has aptly described, this process is "not random. It's not arbitrary. There is a system, process, guidelines for how officers should evaluate and implement, and there is an review (appeals) process . . . " Indeed, there are literally hundreds of IAD decisions which address, describe, and apply the manner in which H&C factors are considered. And more than a few Federal Court decisions addressing this.

Overall, in general, so far as we can discern based on rather limited anecdotal reporting, but also noting the absence of anecdotal reporting suggesting otherwise, it appears the odds favour a rather lenient if not overtly generous approach to enforcing the PR RO.

But, in contrast, there is NO indication that covid will result in any across-the-board waiver of the PR RO. It will be a factor. At best, at most.