PR Renewal Residency obligation not fulfilled

[KRM67]

You can make an application for a new PR card even if you have not complied with the PR Residency Obligation. Since you are in breach of the RO, however, odds are very high that at the very least processing that application will be non-routine. Or, it could result in being issued a Removal Order based on RO breach. But yes, despite your being in breach of the RO, IRCC can decide to issue a new PR card based on H&C reasons.

That is, you are correct, that it is possible to apply for and be issued a new PR card for H&C reasons.

I did not address this for multiple reasons. As I previously noted, chance you can keep your PR status (getting new PR via sponsorship is separate matter) depends mostly on traveling to Canada while you still have a valid PR card, and then how it goes upon arrival at the PoE will be a big, big clue about how good your chances are.

There are other way less probable possibilities, such as, after your PR card expires, applying for PR Travel Document relying on H&C grounds. If that is granted, for example, then you can also probably apply for and be issued a new PR card (H&C decision for PR TD is not absolutely binding when you apply for a new PR card, but close). The probability of this succeeding, however, that is the chance of being issued a PR TD based on H&C grounds, is low enough it is probably not an option worth considering . . . unless you need to delay coming to Canada past the expiration date of your PR card.

In any event, again, your next step at this stage is to return to Canada before the PR card expires. And how it goes when you arrive will largely tell the tale. Either way, however, whether you are issued a Departure Order or allowed into Canada without being Reported, the SAFEST approach then, if keeping PR status is a priority, is to STAY . . . not leave and not apply for a new PR card UNTIL you have been IN Canada for at least 730 days within the preceding five years, or at least are close to that before you apply for a new PR card.

OTHERWISE . . . as I previously noted . . . OTHERWISE "see a reputable and experienced immigration lawyer."

Leading to . . .



Yep. One of the "otherwise" considerations is whether it is practical or even feasible to stay put in Canada until you are in compliance with the RO. You indicate this is at the least not optimal and perhaps not even practically realistic. So, yes, in this situation you will likely be relying on giving up PR status and applying again as a sponsored spouse . . . OR, going to a qualified immigration lawyer to determine what other options you have, including the possibility of applying for a new PR card based on H&C reasons.

But it gets complicated. Especially since the odds are high that a PR card application will, at best, get bogged down in non-routine processing, which would make it difficult for you to travel abroad in the meantime.

One irony, and example of the various complications, is that if you are issued a Departure or Removal Order upon arrival, and you appeal, you can apply for and have a good chance you will be issued a one-year PR card. So you could come and go while the appeal is pending, and while your best chance of the appeal resulting in a favourable outcome depends on staying in Canada, if you mostly stay in Canada pending the appeal that could still give you a decent shot. (With the fall-back sponsorship option if necessary.)

In contrast, last I knew, if you are not Reported and issued a Departure Order, and you then apply for a new PR card anyway, you could not get the one-year PR card pending that application. So if you leave Canada, you will need a PR TD (or travel via the states and come to Canada across a land border), putting you back into a situation likely to result in having to appeal anyway.

Again, this is just ONE example of various complications if coming and staying is not in the cards . . . either pending an appeal if Reported at the PoE, or otherwise waiting to get into RO compliance if you are not Reported at the PoE.

And I also glossed over the possibility that you are issued a 44(1) Report at the PoE but then, upon presenting your H&C explanations, the second officer (technically the "Minister's Delegate," but in practice just another CBSA officer) could decide to NOT issue a Departure Order. This would be a favourable H&C decision that would also indicate good odds of being issued a new PR card for those H&C reasons. But I glossed over this because it is among the less likely scenarios and, moreover, it falls under the category of learning how things are going to go upon your arrival at the PoE.

That is, basically there are many uncertainties, but the situation will be clearer when you actually come and find out what happens at the PoE upon your arrival . . . and make decisions about where to go from there, depending on what happened at the PoE.

Hi,

I returned to Canada this week while my PR Card is still valid. The CBSA officer at PoE decided not to report me. The thing that worked in my favour was that my wife and son who are both Canadian citizens, visited me at overseas location and stayed with me for an year, this period he counted as physical presence and boosted my physical presence days in last 5 years to about 1 years and 6-7 months and brought me pretty close to RO days.

He also advised me that the best thing for me was to stay in Canada for 2 years and then apply for PR card or if I do need to travel I should consult a lawyer for H&C application.

I currently am working for the overseas company from home, but they would prefer if I could do short visits 2-3 times a year. So I am thinking of applying for PR card renewal on H&C grounds through a lawyer.

Thanks,

 

[armoured]

I returned to Canada this week while my PR Card is still valid. The CBSA officer at PoE decided not to report me. The thing that worked in my favour was that my wife and son who are both Canadian citizens, visited me at overseas location and stayed with me for an year, this period he counted as physical presence and boosted my physical presence days in last 5 years to about 1 years and 6-7 months and brought me pretty close to RO days.

He also advised me that the best thing for me was to stay in Canada for 2 years and then apply for PR card or if I do need to travel I should consult a lawyer for H&C application.

Congratulations.

I would caution - with respect to the part that I bolded above - that I don't believe you can count on this as being a formal 'decision' which would necessarily apply in any future examinations/interactions with IRCC.

Or put differently, I don't believe there is a 'tally sheet' in which you've been given credit for those days in a way that can be relied upon. The CBSA officer decided to approach this way this time, but eg IRCC could decide to approach it differently in future.

It seems otherwise you're aware of the issues and potential ways forward.

 

[dpenabill]

Hi,

I returned to Canada this week while my PR Card is still valid. The CBSA officer at PoE decided not to report me. The thing that worked in my favour was that my wife and son who are both Canadian citizens, visited me at overseas location and stayed with me for an year, this period he counted as physical presence and boosted my physical presence days in last 5 years to about 1 years and 6-7 months and brought me pretty close to RO days.

He also advised me that the best thing for me was to stay in Canada for 2 years and then apply for PR card or if I do need to travel I should consult a lawyer for H&C application.

I currently am working for the overseas company from home, but they would prefer if I could do short visits 2-3 times a year. So I am thinking of applying for PR card renewal on H&C grounds through a lawyer.

Thanks,

I am absolutely on board with turning to a reputable, licensed professional with experience, for help. Not to follow blindly, as it is important for an individual to be as well informed and judicious in decision-making as they can. Armed with a little knowledge (but noting, yes, some lawyers tend to think a little knowledge is a dangerous thing for their clients; I do not agree with the lawyers in everything), employing the services of a trusted attorney tends to be about the most prudent course a PR with RO issues can pursue.

Otherwise, I concur with the caution underlying the comments by @armoured . . . including, especially, in regards to getting credit for days your citizen spouse was accompanying you abroad.

Moreover, unless the decision to issue a new PR card is explicitly based on H&C grounds (not sure how this is documented when it happens), remember that possession of a valid PR card does not start the clock anew . . . when a PR is examined for RO compliance, the date of issue or expiration on a PR card is NOT RELEVANT. So, even if you obtain a new PR card, you could still encounter RO compliance screening upon arrival at a Port-of-Entry each time you return to Canada, and compliance will ordinarily be calculated based on days in Canada within the five years immediately preceding THAT DAY.

If you are mostly staying in Canada now, with family well settled in Canada, that should help considerably.

And of course you have the back-up option of being sponsored for PR if you happened to lose status for failing to comply with the RO.

So in many regards the "plan" makes sense. With some risks. No guarantees. Proceeding with the help of a lawyer seems the prudent way to go.

 

[KRM67]

I am absolutely on board with turning to a reputable, licensed professional with experience, for help. Not to follow blindly, as it is important for an individual to be as well informed and judicious in decision-making as they can. Armed with a little knowledge (but noting, yes, some lawyers tend to think a little knowledge is a dangerous thing for their clients; I do not agree with the lawyers in everything), employing the services of a trusted attorney tends to be about the most prudent course a PR with RO issues can pursue.

Otherwise, I concur with the caution underlying the comments by @armoured . . . including, especially, in regards to getting credit for days your citizen spouse was accompanying you abroad.

Moreover, unless the decision to issue a new PR card is explicitly based on H&C grounds (not sure how this is documented when it happens), remember that possession of a valid PR card does not start the clock anew . . . when a PR is examined for RO compliance, the date of issue or expiration on a PR card is NOT RELEVANT. So, even if you obtain a new PR card, you could still encounter RO compliance screening upon arrival at a Port-of-Entry each time you return to Canada, and compliance will ordinarily be calculated based on days in Canada within the five years immediately preceding THAT DAY.

If you are mostly staying in Canada now, with family well settled in Canada, that should help considerably.

And of course you have the back-up option of being sponsored for PR if you happened to lose status for failing to comply with the RO.

So in many regards the "plan" makes sense. With some risks. No guarantees. Proceeding with the help of a lawyer seems the prudent way to go.

Thanks @dpenabill for the help you have been giving. I also believe the best way forward is to go through an immigration lawyer and that is what I am planning to do.

Thank you all, will update on progress, particularly where the process has reached some sort of a conclusion.