PR spouse living outside Canada with Canadian spouse

[kristy89]

Hi,
I am have got my PR card living with my husband(Canadian citizen) outside Canada. Please help find answers with following questions:-

1) After soft landing and received PR card, does one has to come to Canada every six months for stamping for future PR renewal?

2) I have got PR in 2019 and we are planning to move to Canada in 2021, after such long period what documents are required for immi?

I know it says that one has to complete 730 days of five years of visa, but does it have to continuous 730 days or every entry counts into 730days

 

[Bs65]

Others will comment as well but the subject of living abroad with a Canadian spouse has been discussed here many times with lots of opinions.

1) answer is no there is no 6 month requirements but you are supposed meet the the 2 years in 5 years since your landing, not since your PR card issue.

2)If you landed in 2019 then provided you move by 2021 and then stay put and accumulate at least 2 years (not continuous) through 2024 then you will meet the residency obligation at least for the first 5 years.

After the first 5 years the 2 years out of 5 is a rolling 5 years every time you enter the country again. In theory you could move in 2022, near 3 years from your initial landing but then you would need to stay put for 2 years.

So there is a rule that says if a PR accompanies a citizen abroad then they can continue to meet their RO but this is subject to interpretation that the PR actually spent some time living in Canada before moving abroad. As said there are many viewpoints on this how IRCC interpret.

For the final point in the 5 years from initial landing you need to accumulate 2 years residency, not continuous. After first 5 years then every time you enter then you need to have 2 years in the 5 years before each new entry

 

[dpenabill]

Hi,
I am have got my PR card living with my husband(Canadian citizen) outside Canada. Please help find answers with following questions:-

1) After soft landing and received PR card, does one has to come to Canada every six months for stamping for future PR renewal?

2) I have got PR in 2019 and we are planning to move to Canada in 2021, after such long period what documents are required for immi?

I know it says that one has to complete 730 days of five years of visa, but does it have to continuous 730 days or every entry counts into 730days

In terms of complying with the PR Residency Obligation based on days actually IN Canada, the response by @Bs65 largely covers this.

If you follow through with your plans, to come to Canada to live sometime during 2021, you will need your passport plus your PR card to board a flight to Canada.

At the border, at the PoE when you arrive, same documents will readily satisfy the border officials.

Technically a PR card is not necessary at the PoE, but it is the best document to present to show you are a Canadian when you arrive at the PoE (note, PRs are "Canadians," noting for example that the recent government efforts to bring "Canadians" back to Canada from the Wuhan, Hubei region in China, due to the Covid-19 outbreak, explicitly included and referred to some PRs as among those "Canadians" being repatriated).

For IRCC information specifically about the RO, see the rather new Program Delivery Instructions (PDIs) governing Permanent resident status and determination (just adopted on February 5, 2020):

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2020-pr-status-determination.html

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/permanent-resident-determination.html

The latter web page specifically discusses "PR Residency requirements," more often referred to as a PR's "Residency Obligations" (RO).


Possibility of Qualifying For Credit Toward RO For Days Abroad Accompanying Canadian Citizen Spouse:

@Bs65 also references circumstances in which a Canadian PR will be given credit toward RO compliance based on days spent abroad accompanying a Canadian citizen spouse. The PDIs referenced above state the basic rule for this.

But as @Bs65 alludes, actually qualifying for this credit can be complicated and be affected by various factors such as whether or not it is clear the PR moved abroad with the Canadian citizen.

If you actually move to Canada and establish a more or less permanent residence here (in fact residence, not merely resident status) as you plan, sometime during 2021, there will be NO need to consider whether you might qualify for credit for the days you were living abroad with your Canadian citizen spouse . . . well, so long as you do not spend more than 1096 days outside Canada between the date you landed and the fifth year anniversary of that date.

Since you did a "soft" landing, it is apparent you were not resident in Canada before moving abroad accompanying a Canadian citizen spouse, so your situation suggests it would be far safer to follow through with your plans to actually move to Canada in time to comply with the RO based on actual presence in Canada, no reliance on any credit for time abroad accompanying your Canadian citizen spouse.

If you apprehend that you might not actually make the move to Canada in this time frame, before relying on the accompanying-a-Canadian-spouse-abroad-credit you may want to consider available information about how CBSA and IRCC approach this issue.

See, for example, the discussion of this issue in the topic titled:
"Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE"
Find here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

As @Bs65 observed, there are many varying opinions about this subject in this forum. Generally it would be prudent to ignore personal opinions and focus on actual information and transparent analysis readily judged on its face. What @Bs65 did not reference is that there are indeed many of us here who make a concerted effort to NOT express opinions, but rather to focus on reliably-sourced information and clearly stated analysis based on reliable information (preferably official or at least authoritative sources). In the topic referenced and linked above, for example, I and others address, cite, and link scores of OFFICIAL sources of information about this subject.

For example, again as @Bs65 observed, there are many varying opinions about this subject in this forum . . . BUT what any PR potentially affected by issues related to qualifying for the accompanying-Canadian-citizen-abroad-credit NEEDS to know, is that there are actually VARYING viewpoints AMONG OFFICIALS regarding what is required to qualify for this credit, including different approaches among both IRCC and CBSA officials, as well as IAD Panels and Federal Court Justices, and even some variably in what is argued by the Minister's representatives before tribunals like the IAD and the Federal Court.

To be clear, this is NOT my opinion. The various approaches are specifically applied by respective officials, and also expressly referenced and described in numerous official sources. Many of which are cited and linked in the topic referenced and linked above.

Thus, the approach taken by officials in any given specific case can be any of the following:

-- credit is available for any days the PR was ordinarily living together with the Canadian citizen spouse abroad​

-- credit may depend on who-accompanied-whom​

-- does not matter who-accompanied-whom but there must be a temporal connection in when BOTH moved from Canada to another country (that is, credit depends on couple moving from Canada together or at least within a reasonable amount of time)​

If the official approaches the credit depending on who-accompanied-whom, there are further variations in how this is evaluated.

It is impossible to predict which approach any given official will apply, except to note that generally it appears the most often applied approach is allowing the credit for any days the PR was ordinarily living together with the Canadian citizen spouse abroad UNLESS there are some notable circumstances triggering a more strict approach. One such situation is where it is readily apparent the PR never established in fact residence in Canada before moving abroad (hard to accompany someone moving out of Canada if you were not living in Canada first).

Which leads to some particular observations if, as it appears, you are a spouse sponsored PR and your sponsor was living abroad when the PR application was made . . . which I will post separately in the next post.

 

[dpenabill]

Continued from prior post . . .

Observation, caution, IF PR was spouse sponsored while spouse was living abroad:

These observations are NOT relevant UNLESS you are a spouse sponsored PR and your spouse was already living abroad when the PR application was made.

And, so long as you follow through and do in fact make the move to Canada by sometime during 2021, what I describe here is NOT likely to affect you.

I am offering these observations, including a caution, because it appears you may have been sponsored for family class PR and your sponsoring spouse was already living abroad, as suggested by the fact you are currently living abroad with your spouse and you did a "soft" landing. And because plans to come to Canada by such and such a date are very, very often delayed and sometimes delayed by a lot. [Note: There is no shortage of tales of woe told in this forum by PRs who did a soft landing with plans to come to Canada to stay well within the first three years (that is, in time to meet their RO), but then there was this or that, or some other thing, delaying the move, resulting in a failure to comply with the RO and, consequently, the loss of PR status.]

In particular, if you are a sponsored spouse PR and your sponsor was living abroad when the application was made, another issue may lurk somewhat in the shadows. This might not be an issue at all for you. Depends on the particular facts and circumstances attendant the process pursuant to which you became a PR. BUT IF, with an emphasis on IF this is the situation, that is, IF you were sponsored by your spouse while your spouse was living abroad, the spouse's application to qualify as a sponsor required the submission of information documenting concrete plans for relocating to Canada. Obviously, if there were any misrepresentations made in those submissions, that would put your PR status at risk. PR obtained by misrepresentation is forever grounds to revoke PR status, or even revoke citizenship later obtained.

Some deviation from those plans, even significant delays in actually relocating to Canada, do not appear to trigger misrepresentation proceedings, at least not very often, based on what is seen in forum reporting or in IAD decisions regarding actual cases where PR status has been revoked for misrepresentation. Since people's plans often change, it would be difficult for IRCC or CBSA to prove misrepresentation in the application just because the couple did not follow through in relocating to Canada as represented in the PR application process. And, in particular, even if your current plan bears little resemblance to the plan described in the application, if you do indeed make the move to Canada by sometime during 2021, the odds of this even being questioned should be REMOTE.

BUT, if you are a sponsored spouse, and your sponsor was living abroad when sponsoring you, AND if you delay coming to Canada to live three years or more after the date of your landing, this leads back to potential complications IF and WHEN you needed to rely on credit toward the RO based on accompanying a Canadian citizen spouse abroad. That is, IF for example you do not make the move to Canada in time to comply with the PR RO based on days actually present IN Canada, the RISK of problems could be much greater due to the COMBINATION of (1) not following through with relocating to Canada as planned or within a year or so of what was the plan, and (2) otherwise not having actually moved from Canada to the other country, either together or at least both moving from Canada approximately around the same time. That is, the combination of these factors could dramatically elevate the RISK of losing PR status. The stated grounds would likely be rooted in denying credit toward the RO, for time abroad accompanying a Canadian citizen spouse, BUT there is a significant risk this will be in part aggravated or perhaps even driven by some suspicion about the honesty or genuineness of the representations made about plans to relocate to Canada as represented in the PR application.

There are A LOT OF CONTINGENCIES underlying those observations and the caution. For now, if the situation is applicable, the main thing is to be AWARE how important it might be that you make the move to Canada in time to meet the RO based on actual presence in Canada. IF it looks like it may take longer to move here, THEN you may want to revisit this subject and consider these things more closely.

 

[iyerrb123]

Hi kristy89 -

From what I'm reading about your case you have nothing to worry about.

You dont have to come to Canada every 6 months for stamping and you only need your passport and PR card while coming back in 2021 and no other documents for immigration.

Here is why you dont have to worry about 730 days in your case :-

As long as you are a Canadian Permanent Resident living outside of Canada with your spouse(Canadian Citizen) EVERY DAY counts towards physical presence in Canada for 730 days of residency obligation(RO)

You said you got PR in 2019, so technically you are meeting your residency obligation from 2019 to 2021(2 years/730 days) while living abroad with your CANADIAN CITIZEN SPOUSE. After you move to Canada in 2021 you are going to add bonus days to your 730 days, so you will be way above the 730 day mark

730 Days need not be continuous, it can be in any form. But if you think carefully, you are continuously with your spouse abroad and then you are coming together back to Canada so in your case it is 730 days continuously

There are multiple resources from Canadian Govt. that verify this fact

1. https://laws-lois.justice.gc.ca/eng/acts/i-2.5/section-28.html
2. Page 25 - Section 7.5 - https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf23-eng.pdf
3. https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/terms-definitions-related-permanent-residence.html#a

 

[k.h.p.]

Hi kristy89 -

From what I'm reading about your case you have nothing to worry about.

You dont have to come to Canada every 6 months for stamping and you only need your passport and PR card while coming back in 2021 and no other documents for immigration.

Here is why you dont have to worry about 730 days in your case :-

As long as you are a Canadian Permanent Resident living outside of Canada with your spouse(Canadian Citizen) EVERY DAY counts towards physical presence in Canada for 730 days of residency obligation(RO)

You said you got PR in 2019, so technically you are meeting your residency obligation from 2019 to 2021(2 years/730 days) while living abroad with your CANADIAN CITIZEN SPOUSE. After you move to Canada in 2021 you are going to add bonus days to your 730 days, so you will be way above the 730 day mark

730 Days need not be continuous, it can be in any form. But if you think carefully, you are continuously with your spouse abroad and then you are coming together back to Canada so in your case it is 730 days continuously

There are multiple resources from Canadian Govt. that verify this fact

1. https://laws-lois.justice.gc.ca/eng/acts/i-2.5/section-28.html
2. Page 25 - Section 7.5 - https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf23-eng.pdf
3. https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/terms-definitions-related-permanent-residence.html#a

Please read @dpenabill's analysis above. The credit for living with a Canadian spouse is more complex, sometimes, than just living with them abroad.

 

[iyerrb123]

Please read @dpenabill's analysis above. The credit for living with a Canadian spouse is more complex, sometimes, than just living with them abroad.

Please read the bold content below from what we have in the Canadian Govt. rule book. Canadian Govt. states they dont have to know the purpose of why you are outside of Canada as long as you prove you have been outside of Canada living with your spouse. I guess you can prove RO by showing rental agreements/tax filings/utility bills from abroad to prove you were with your Canadian citizen spouse and you dont have to explain why you are not in Canada

Page 25 - https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf23-eng.pdf

7.5 Accompanying a Canadian citizen outside Canada

R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or commonlaw partner or parent.

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.

 

[dpenabill]

As long as you are a Canadian Permanent Resident living outside of Canada with your spouse(Canadian Citizen) EVERY DAY counts towards physical presence in Canada for 730 days of residency obligation(RO)

Please read the bold content below from what we have in the Canadian Govt. rule book. Canadian Govt. states they dont have to know the purpose of why you are outside of Canada as long as you prove you have been outside of Canada living with your spouse. I guess you can prove RO by showing rental agreements/tax filings/utility bills from abroad to prove you were with your Canadian citizen spouse and you dont have to explain why you are not in Canada

Page 25 - https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf23-eng.pdf

7.5 Accompanying a Canadian citizen outside Canada

You are (1) quoting an outdated source, (2) misinterpreting or erroneously citing some sources (Section 28 IRPA, for example, does NOT say that a PR gets credit for time living with a citizen spouse abroad; more re this below), and (3) otherwise relying on a particular interpretation of Section 28(2)(a)(ii) IRPA and Regulation 61(4) IRPA Regulations which has been REJECTED by numerous OFFICIALS, and is contrary to the position often (if not always) advanced by the Ministers of Public Safety and IRCC.

As best we can unravel how various officials are approaching the PR-accompanying-citizen-partner-credit, there are generally THREE different and INCONSISTENT approaches to this among the officials (ranging from CBSA PoE officers to IRCC ID officers and IRCC visa office officials, as well as various IAD panels and Federal Court justices), including:

-- credit depends on who-accompanied-whom, OR​

-- the Temporal-Nexus approach where it does not matter who-accompanied-whom but there must be a temporal connection in when BOTH moved from Canada to another country (that is, credit depends on couple moving from Canada together or at least around the same time), OR​

-- credit is available for any days the PR was ordinarily living together with the Canadian citizen partner abroad​

Moreover, at least in appeals before the IAD, it appears that the Ministers for both IRCC and Public Safety, are consistently arguing that the credit is available ONLY if the PR is the one accompanying the citizen, NOT when the citizen is the one accompanying the PR.

Notwithstanding the variable approaches, so far it still appears to be the case that USUALLY, who-accompanied-whom does NOT matter. Generally, as long as the PR and citizen partner are "ordinarily residing together" abroad, the time they are living together counts.

BUT, as many sources otherwise show, there are circumstances in which Canadian officials will consider who-accompanied-whom and DENY credit unless it is the PR accompanying the citizen, not the other way around. And other cases in which the timing of the move abroad looms as the deciding factor.

As @k.h.p. aptly cautioned, qualifying for credit toward Residency Obligation compliance can be more complicated (actually a lot more complicated) than merely showing a genuine relationship and living together.

In any event, make no mistake, it is NOT the case that a PR will for sure get RO credit for time living together with a Canadian citizen partner abroad. It is WAY wrong to advise PRs otherwise. WAY WRONG. Following this post, in addition to addressing some of this more particularly, I will cite and link numerous OFFICIAL sources reflecting what I have said above.

BEFORE you do any further sharing of what could be disastrously misleading advice PLEASE at least read some of those OFFICIAL sources.


Recent Example of Interpretation and Application of Law, Denying RO Credit Based on a Who-Accompanied-Whom Analysis:

See Gehrke v Canada, 2019 CanLII 124068 (CA IRB), http://canlii.ca/t/j4cms

Similar to what is reported in numerous other OFFICIALLY published, OFFICIAL IAD decisions, just this LAST year the IAD dismissed the appeal of a PR who was reported at a PoE for a breach of the RO upon arrival in Canada, conclusively terminating the PR's status, DENYING credit toward the RO for the time the PR was living abroad with his Canadian citizen spouse, even though the couple were married and living together for essentially the entire five year period, and more before that, and living together in a common-law relationship for many years prior to that.

This ruling was explicitly based on a finding that it was the Canadian citizen who accompanied the PR and NOT the PR who accompanied the Canadian citizen.

The IAD panel stated:

"It is the Canadian citizen spouse who is the primary person or the cause for being outside Canada that would therefore allow the permanent resident spouse to accompany for the purposes of 61(4) of the Regulations."​

Moreover, in opposition to allowing the credit, as the Minister's representative has similarly argued in many, many other cases, the Panel also stated:

"The Minister goes on to describe in his written submissions that the appellant, for the purposes of subsection 61(4) of the Regulations, did not accompany his Canadian citizen spouse; rather, it was the opposite, that being the appellant’s Canadian spouse accompanied the appellant to Germany to live with him."​

To be clear, this interpretation and application of Section 28(2) IRPA, with consideration for subsection 28(2)(a)(ii) IRPA and subsection 61(4) in the IRPA Regulations (see https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-14.html#h-686425 ), is NOT an outlier. There are MANY OFFICIAL decisions which explicitly condition the accompanying-citizen-partner-credit based on who was accompanying whom, allowing the credit if the PR was accompanying the citizen partner, and NOT allowing the credit if in contrast it was the citizen accompanying the PR. That noted, there are some particular factors specific to this case which distinguish it from most others and illustrates how complicated this issue can be (a complicated tangent addressed elsewhere).

Similarly, and explicitly rejecting ENF - 23 in this regard, see Dadash-zadeh v Canada, 2018 CanLII 46499 (CA IRB), http://canlii.ca/t/hsldq where the IAD stated:

"I share the prevailing approach of the IAD that the test in subparagraph 28(2)(a)(ii) of the Act cannot be met merely by counting the number of days a permanent resident spends outside Canada in the company of a Canadian citizen who is their spouse or common-law partner without regard to who is accompanying whom."​

I am not sure that is actually the "prevailing approach of the IAD" (there are also many other decisions rejecting a who-accompanied-whom approach), but it is for sure a common approach . . . AND it appears to be the approach most often urged by the government, by the Minister, as it was in this case (some IAD panels have rejected the who-accompanied-whom approach urged by the Minister's representative).

Please consider sources cited in the next post as well.

 

[dpenabill]

As long as you are a Canadian Permanent Resident living outside of Canada with your spouse(Canadian Citizen) EVERY DAY counts towards physical presence in Canada for 730 days of residency obligation(RO)

Again, This is NOT Always True.

As noted above, the approach actually taken with a particular PR can vary, generally falling into one of the following three approaches:

-- credit depends on who-accompanied-whom, OR​

-- the Temporal-Nexus approach where it does not matter who-accompanied-whom but there must be a temporal connection in when BOTH moved from Canada to another country (that is, credit depends on couple moving from Canada together or at least around the same time), OR​

-- credit is available for any days the PR was ordinarily living together with the Canadian citizen partner abroad (does not matter who-accompanied-whom)​

And perhaps most importantly, as an indicator of the trend, at least in appeals before the IAD it appears that the Ministers for both IRCC and Public Safety, are consistently arguing that the credit is available ONLY if the PR is the one accompanying the citizen, NOT when the citizen is the one accompanying the PR.


SOME PARTICULARS:

The Operational Manual ENF - 23 Loss of Permanent Resident Status has NOT been updated since January 2015, more than FIVE YEARS AGO. It is a valuable resource but it is OUTDATED in some important respects. And it appears that IRCC is finally migrating these guidelines to the Program Delivery Instructions (PDIs) format, and in doing so simplifying them, leaving out a lot of the detail the Operational Manuals and Operational Bulletins provided.

And, in particular, just last month IRCC implemented new PDIs governing Residency Determinations. See https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/permanent-resident-determination.html in which the guidelines for residency determinations now only refer to credit for PRs accompanying citizen-partners, with no mention or suggestion that the credit is available if it is the citizen accompanying the PR.

Moreover, such Operational Manuals are mere guidelines, NOT law, NOT binding. And NUMEROUS OFFICIALLY published Immigration Appeal Division decisions have specifically REJECTED applying the guidelines you quote
(including the Dadash-zadeh decision cited and linked above) or otherwise interpreted and applied Section 28(2)(a)(ii) IRPA in a way that DENIED credit to PRs living abroad with a Canadian citizen spouse.

The specific reasoning in these cases varies. But the decisions in which credit for time together abroad has been DENIED are generally based on two approaches to the credit:

-- credit does NOT apply when the citizen-partner is accompanying the PR; only available IF the PR is accompanying the the citizen-partner; the "Who-Accompanied-Whom" approach​

-- credit does NOT apply UNLESS the couple were residing in Canada together and move abroad together, or at least relatively close in time; this is sometimes referred to as the "Temporal-Nexus" approach​

The "Who-Accompanied-Whom" approach appears to be more common than the "Temporal-Nexus" approach; noting nonetheless that credit for time "ordinarily living together" is probably, not for sure but probably, still the most common approach. For recent application of the "Temporal-Nexus" approach, see In'Airat v Canada, 2019 CanLII 124093 (CA IRB), http://canlii.ca/t/j4cls and Jiang v Canada, 2019 CanLII 128447 (CA IRB), http://canlii.ca/t/j4wmz

As noted in a post above, this issue has been addressed at-length and in-depth, with many, many citations and LINKS to OFFICIAL sources, including many far more current than ENF - 23, in a topic devoted to it in particular, titled "Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE"
Find here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/page-4
That discussion was started as an "UPDATE," and began in the summer of 2018 when there were increasing reports about PRs NOT getting credit for time abroad together with a spouse or common-law partner. Much has happened since. Be aware that many more decisions since then suggest, again, that the Ministers of both IRCC and Public Safety are now consistently arguing that who-accompanied-whom matters, and overall there appear to be many more cases in which the credit is being denied even when the PR and citizen were living together.

Perhaps the most salient and oft cited example of an actual case in which the who-accompanied-whom question resulted in being denied credit is the IAD decision in Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r

ALSO SEE:

Khan, 2015 CanLII 99397 (CA IRB), http://canlii.ca/t/grz8t

Han v Canada (Citizenship and Immigration), 2017 CanLII 14435 (CA IRB), http://canlii.ca/t/h2n4d

Caesar v Canada (Citizenship and Immigration), 2014 CanLII 99165 (CA IRB), http://canlii.ca/t/gnf7w

Rochecouste v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 60484 (CA IRB), http://canlii.ca/t/hst39

Kreidy v Canada (Citizenship and Immigration), 2017 CanLII 87454 (CA IRB), http://canlii.ca/t/hphj6

Dezfuli v Canada (Citizenship and Immigration), 2018 CanLII 89023 (CA IRB), http://canlii.ca/t/hv85q

Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), http://canlii.ca/t/hst3d


Contrary decisions (which reject consideration of who-accompanied-whom, and which I have previously cited and linked) include:

The Mustafa decision at http://canlii.ca/t/hs76z . .

Liong v Canada (Citizenship and Immigration), 2013 CanLII 98789 (CA IRB), http://canlii.ca/t/gj8wt

Auladin v Canada, 2015 CanLII 93049 http://canlii.ca/t/gndk9
(another factual temporal nexus case, which in effect sideline or reject the who-accompanied-whom question but do not necessarily allow credit just for time living abroad together)

 

[iyerrb123]

Again, This is NOT Always True.

As noted above, the approach actually taken with a particular PR can vary, generally falling into one of the following three approaches:

-- credit depends on who-accompanied-whom, OR​

-- the Temporal-Nexus approach where it does not matter who-accompanied-whom but there must be a temporal connection in when BOTH moved from Canada to another country (that is, credit depends on couple moving from Canada together or at least around the same time), OR​

-- credit is available for any days the PR was ordinarily living together with the Canadian citizen partner abroad (does not matter who-accompanied-whom)​

And perhaps most importantly, as an indicator of the trend, at least in appeals before the IAD it appears that the Ministers for both IRCC and Public Safety, are consistently arguing that the credit is available ONLY if the PR is the one accompanying the citizen, NOT when the citizen is the one accompanying the PR.


SOME PARTICULARS:

The Operational Manual ENF - 23 Loss of Permanent Resident Status has NOT been updated since January 2015, more than FIVE YEARS AGO. It is a valuable resource but it is OUTDATED in some important respects. And it appears that IRCC is finally migrating these guidelines to the Program Delivery Instructions (PDIs) format, and in doing so simplifying them, leaving out a lot of the detail the Operational Manuals and Operational Bulletins provided.

And, in particular, just last month IRCC implemented new PDIs governing Residency Determinations. See https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/permanent-resident-determination.html in which the guidelines for residency determinations now only refer to credit for PRs accompanying citizen-partners, with no mention or suggestion that the credit is available if it is the citizen accompanying the PR.

Moreover, such Operational Manuals are mere guidelines, NOT law, NOT binding. And NUMEROUS OFFICIALLY published Immigration Appeal Division decisions have specifically REJECTED applying the guidelines you quote
(including the Dadash-zadeh decision cited and linked above) or otherwise interpreted and applied Section 28(2)(a)(ii) IRPA in a way that DENIED credit to PRs living abroad with a Canadian citizen spouse.

The specific reasoning in these cases varies. But the decisions in which credit for time together abroad has been DENIED are generally based on two approaches to the credit:

-- credit does NOT apply when the citizen-partner is accompanying the PR; only available IF the PR is accompanying the the citizen-partner; the "Who-Accompanied-Whom" approach​

-- credit does NOT apply UNLESS the couple were residing in Canada together and move abroad together, or at least relatively close in time; this is sometimes referred to as the "Temporal-Nexus" approach​

The "Who-Accompanied-Whom" approach appears to be more common than the "Temporal-Nexus" approach; noting nonetheless that credit for time "ordinarily living together" is probably, not for sure but probably, still the most common approach. For recent application of the "Temporal-Nexus" approach, see In'Airat v Canada, 2019 CanLII 124093 (CA IRB), http://canlii.ca/t/j4cls and Jiang v Canada, 2019 CanLII 128447 (CA IRB), http://canlii.ca/t/j4wmz

As noted in a post above, this issue has been addressed at-length and in-depth, with many, many citations and LINKS to OFFICIAL sources, including many far more current than ENF - 23, in a topic devoted to it in particular, titled "Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE"
Find here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/page-4
That discussion was started as an "UPDATE," and began in the summer of 2018 when there were increasing reports about PRs NOT getting credit for time abroad together with a spouse or common-law partner. Much has happened since. Be aware that many more decisions since then suggest, again, that the Ministers of both IRCC and Public Safety are now consistently arguing that who-accompanied-whom matters, and overall there appear to be many more cases in which the credit is being denied even when the PR and citizen were living together.

Perhaps the most salient and oft cited example of an actual case in which the who-accompanied-whom question resulted in being denied credit is the IAD decision in Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r

ALSO SEE:

Khan, 2015 CanLII 99397 (CA IRB), http://canlii.ca/t/grz8t

Han v Canada (Citizenship and Immigration), 2017 CanLII 14435 (CA IRB), http://canlii.ca/t/h2n4d

Caesar v Canada (Citizenship and Immigration), 2014 CanLII 99165 (CA IRB), http://canlii.ca/t/gnf7w

Rochecouste v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 60484 (CA IRB), http://canlii.ca/t/hst39

Kreidy v Canada (Citizenship and Immigration), 2017 CanLII 87454 (CA IRB), http://canlii.ca/t/hphj6

Dezfuli v Canada (Citizenship and Immigration), 2018 CanLII 89023 (CA IRB), http://canlii.ca/t/hv85q

Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), http://canlii.ca/t/hst3d


Contrary decisions (which reject consideration of who-accompanied-whom, and which I have previously cited and linked) include:

The Mustafa decision at http://canlii.ca/t/hs76z . .

Liong v Canada (Citizenship and Immigration), 2013 CanLII 98789 (CA IRB), http://canlii.ca/t/gj8wt

Auladin v Canada, 2015 CanLII 93049 http://canlii.ca/t/gndk9
(another factual temporal nexus case, which in effect sideline or reject the who-accompanied-whom question but do not necessarily allow credit just for time living abroad together)

I highly appreciate your insights, this is a big eye opener for me.