residency obligation

[toronto_man]

All,

If one was not compliant with residence obligation by the time of sending application for PR renewal but became fully compliant by the time of receiving the RQ from CIC - is there a risk to be reported?

Thanks

 

[scylla]

Yes - there's absolutely a risk. Time spent living in Canada after the application was submitted isn't counted. Only the days up to the time the original application was received by CIC are considered.

 

[toronto_man]

i understand that time after application is not counted for deciding whether to renew the PR card or not - but why days after the application will not count for general residency determination if no order is issued yet? Isn;t determination consider last 5 years from now? can you clarify?

 

[dpenabill]

Correct: if at the time of making the application, the PR was short of meeting the PR Residency Obligation, that would be grounds to deny the application.

If in the meantime the PR has come into compliance, the PR can make a new application for a PR card, which should be granted.

There is always the risk that applying with less than 730 days presence will trigger not just a residency determination for the purpose of the PR card application, but the commencement of removal proceedings. The relevant date for determining compliance with the Residency Obligation for this procedure, however, will be the date of the report commencing the removal proceeding. This should not relate back to the date the PR card application was made. So, if a PR comes into compliance after applying for the PR card, but before any formal process to remove the PR (for inadmissibility due to a breach of the PR RO) has been commenced, the PR should be OK and not lose PR status.

In practice, my sense is that mostly an application for a PR card before being in compliance is a waste of time and money, unless the PR is way short of meeting the RO, or the PR leaves Canada while the PR card application is in process. In the latter two circumstances the risk of losing PR status is high.

 

[PUJA]

What if the application is made at 745 days in Canada at the date of application?

 

[Alurra71]

Correct: if at the time of making the application, the PR was short of meeting the PR Residency Obligation, that would be grounds to deny the application.

If in the meantime the PR has come into compliance, the PR can make a new application for a PR card, which should be granted.

There is always the risk that applying with less than 730 days presence will trigger not just a residency determination for the purpose of the PR card application, but the commencement of removal proceedings. The relevant date for determining compliance with the Residency Obligation for this procedure, however, will be the date of the report commencing the removal proceeding. This should not relate back to the date the PR card application was made. So, if a PR comes into compliance after applying for the PR card, but before any formal process to remove the PR (for inadmissibility due to a breach of the PR RO) has been commenced, the PR should be OK and not lose PR status.

In practice, my sense is that mostly an application for a PR card before being in compliance is a waste of time and money, unless the PR is way short of meeting the RO, or the PR leaves Canada while the PR card application is in process. In the latter two circumstances the risk of losing PR status is high.

I just bolded that statement so it could be clarified. If a PR has sent in an application and he/she was short of days for meeting the RO and since lodging the application came into RO he/she would FIRST need to withdraw the previous application and then lodge a new application. If the first application is not withdrawn a decision can be made based on that information without having to look at the 2nd application. The risk of losing PR for filing without meeting the RO is certainly much higher than filing with enough days (730) and extra for a buffer.

 

[Alurra71]

What if the application is made at 745 days in Canada at the date of application?

Since RO is 730 days, then yours was sent with a 15 day buffer on top of that. You should be fine as long as you are sure on your day count.

 

[toronto_man]

thanks all for answers

I guess even if first application is short of dates, they won;t usually issue removal order or start the process without sending a RQ or ask for interview - correct? i assume if they issue something like this, they would have notified the person upfront - correct?

and even if they start the removal process based on the first application, i assume one can challenge it easily given he became very compliant in the mean time - correct?

 

[toronto_man]

I just bolded that statement so it could be clarified. If a PR has sent in an application and he/she was short of days for meeting the RO and since lodging the application came into RO he/she would FIRST need to withdraw the previous application and then lodge a new application. If the first application is not withdrawn a decision can be made based on that information without having to look at the 2nd application. The risk of losing PR for filing without meeting the RO is certainly much higher than filing with enough days (730) and extra for a buffer.

but if they already start a RQ and a residency determination investigation as a result of the PR card application, i guess it will be hard to withdraw the PR application at this stage as they already initiated investigation - correct? with investigation, they are not investigating the PR application anymore, they are checking if the person compliant or not ..i am just thinking loudly and would like to hear from people who passed through same experience

 

[dpenabill]

Bottom-line: for a PR who is in Canada, who is now in compliance with the PR Residency Obligation, and who has not, as yet, had a 44(1) Report made against him or her, is not in breach of the PR RO and thus is not at risk for losing PR status based on a breach of the PR RO (subject, of course, to presenting evidence and documentation showing actual compliance, if and when the time comes for doing that).

This is true regardless of the date the PR applied for a new PR card. That is, this is true even if as of the date the PR applied for the PR card the PR was in breach of the PR RO.

And, to be clear, the PR will be given an opportunity to appear at an interview with CIC before a 44(1) Report is made (thus it is important to be sure CIC has the correct address to send notice of a time to appear for an interview).

If a PR applies for a new PR card with less than 730 days present in Canada but the PR comes into compliance before the day of the interview, appears at the time scheduled for an interview, and submits sufficient evidence/documentation to show presence in Canada for 730 days within the five years immediately preceding THAT date (thus, yes, counting days in Canada between the date the application was made and up to the day of the interview), no 44(1) Report should be made, no Removal Order issued, PR status is retained.

Generally CIC will not make a negative determination on a PR card application in a paper review.

Thus, so long as the PR can actually document compliance, once the PR is in compliance it does not matter if the PR card application is approved or denied. If it is denied, the PR can make another application and should be both issued and delivered a new PR card.



Relative to loss of PR status for a breach of the PR Residency Obligation, there are really only two procedural paths:

-- application for PR Travel Document by PR abroad which is denied

-- issuance of a Removal Order (which is defined to be a "departure order") based on a 44(1) Report of Inadmissibility

I just bolded that statement so it could be clarified. If a PR has sent in an application and he/she was short of days for meeting the RO and since lodging the application came into RO he/she would FIRST need to withdraw the previous application and then lodge a new application. If the first application is not withdrawn a decision can be made based on that information without having to look at the 2nd application. The risk of losing PR for filing without meeting the RO is certainly much higher than filing with enough days (730) and extra for a buffer.

If the PR card application has been denied because the PR was not in compliance with the PR Residency Obligation, for a PR who has in the meantime come into compliance with the PR RO, there is no need to withdraw it before making another application.

Generally (with some exceptions depending on the circumstances), for an applicant who has come into compliance with the PR Residency Obligation before a decision on the PR card application has been made, there is no reason to withdraw the application. The application may be denied, in which case the PR can make a new application, or in some cases it appears CIC will go ahead and deliver (not just issue) a new PR card (reports are too sporadic to identify what makes the difference).

thanks all for answers

I guess even if first application is short of dates, they won;t usually issue removal order or start the process without sending a RQ or ask for interview - correct? i assume if they issue something like this, they would have notified the person upfront - correct?

and even if they start the removal process based on the first application, i assume one can challenge it easily given he became very compliant in the mean time - correct?

but if they already start a RQ and a residency determination investigation as a result of the PR card application, i guess it will be hard to withdraw the PR application at this stage as they already initiated investigation - correct? with investigation, they are not investigating the PR application anymore, they are checking if the person compliant or not ..i am just thinking loudly and would like to hear from people who passed through same experience

The local office cannot summarily make a 44(1) report based on the PR card application. Moreover, the relevant time period during which presence in Canada counts is the five years preceding the date the 44(1) Report is made. Any time spent in Canada within five years prior to that date, including time in Canada after applying for a new PR card, counts toward compliance with the PR RO.

Operational Bulletin 536, and the Operational Manual ENF 23 Loss of permanent resident status, and the Operational Manual ENF 27 Permanent Resident Card, among other sources at CIC, offer some insight.

In particular, the triggering event for loss of PR status due to a breach of the PR Residency Obligation is the making of a 44(1) Report.

The procedure for writing reports is prescribed in ENF 5 Writing 44(1) Reports

(Loss of PR status arising from a denied PR Travel Document is a separate process.)

Reminder: once the 44(1) Report is made (if a 44(1) Report is made), time in Canada after that does not count toward compliance with the PR RO. Generally such a PR should be issued a one-year PR card rather than a five year card. (Note, however, that remaining in Canada while any appeal of a Removal Order is pending can be a positive factor considered when the matter comes before IAD on appeal.)




Regarding PRs not in compliance after making a PR card application:

The PR who goes abroad while the application is pending will typically need to apply for a PR Travel Document from abroad, at serious risk that will result in loss of PR status. Even if the PR Travel Document is issued and the PR comes to Canada, there is supposed to be a flag in FOSS which is supposed to cause the PR to be examined in secondary at the POE, which can still result in a 44(1) Report. This scenario is explicitly covered in Operational Bulletin 536.

If the PR is in Canada and is not in compliance as of the date an interview is scheduled, it is important to not only bring all evidence regarding time present in Canada, but documentation to support any H&C reasons why the individual should be allowed to retain PR status. There may be some flexibility at this stage.

My impression, following the timelines of numerous PRs who have been subject to residency examinations or determinations in the processing of the PR application, is that once the PR is in Canada and is staying in Canada, CIC is not particularly anxious to proceed to remove the PR based on a breach of the PR RO. This changes if CIC perceives fraud, abuse of the system, gaming the system, or such.

A PR should not count on leniency or flexibility, but rather should wait until being in full compliance with the PR RO before applying for the PR card. For those who are close to being in compliance, however, it appears the odds are good CIC will not move quickly but rather will take enough time for the PR to come into compliance before an interview is scheduled. It is as if CIC is watching to see if the individual is actually settled in Canada, intending to actually live in Canada, and if so, CIC may lean toward letting a technical breach of the PR RO slide, but only up to a point (a point which is not defined, and probably not the same for everyone; someone with extensive family in Canada with at least a somewhat understandable excuse for not settling in Canada sooner probably gets more leniency than a person whose family is abroad and who decided to stay at a job abroad; a practicing doctor probably gets more leniency than a retail clerk, all other things being equal).

 

[hnjsh]

Hi..my sister got PR in 2013 .did soft landing for a month and never returned back.recently she applied for PRTD on h&c grounds which got approved.she has 2 small kids.now she wants to come to canada & wants to settle here..she is not compliance with RO as only stayed for 30days.what will be her chances to get approved for PR Renewal ? exactly what she needs to do after coming to canada.for staying in canada she only has Expired PR card & sin number as I.D.how can she include her children in PR application ? if anyone could guide me it will be easier for me.thank you in advance

 

[canuck78]

Hi..my sister got PR in 2013 .did soft landing for a month and never returned back.recently she applied for PRTD on h&c grounds which got approved.she has 2 small kids.now she wants to come to canada & wants to settle here..she is not compliance with RO as only stayed for 30days.what will be her chances to get approved for PR Renewal ? exactly what she needs to do after coming to canada.for staying in canada she only has Expired PR card & sin number as I.D.how can she include her children in PR application ? if anyone could guide me it will be easier for me.thank you in advance

She would need to move to Canada, wait 2 years and then she will qualify to sponsor her children.

 

[dpenabill]

Hi..my sister got PR in 2013 .did soft landing for a month and never returned back.recently she applied for PRTD on h&c grounds which got approved.she has 2 small kids.now she wants to come to canada & wants to settle here..she is not compliance with RO as only stayed for 30days.what will be her chances to get approved for PR Renewal ? exactly what she needs to do after coming to canada.for staying in canada she only has Expired PR card & sin number as I.D.how can she include her children in PR application ? if anyone could guide me it will be easier for me.thank you in advance

There are many more factors to consider in this scenario. How and why the H&C case persuaded a visa office to issue a PR TD is among them. But there are others.

Generally I'd disagree with the observation by @canuck78 about having to wait two years for a returning PR who clearly was issued a PR TD for H&C reasons. That decision generally means, in effect, the PR is in status and that is all that is necessary to meet that element (there are additional elements of course) of qualifying to be a sponsor, that is, having valid PR status. (I assume the reason for the two year wait comment was about getting to Canada and back into compliance with the RO before being eligible to sponsor . . . but a formal H&C decision overcomes that.)

But we have seen some routine PR TDs issued even to PR's applying for one based on H&C reasons despite the Residency Obligation. If the PR TD does not include the coding for the H&C decision, that alone can make decision-making more complicated.

And of course it is crucial to actually return to and settle in Canada within the time the PR TD is valid.

Having children makes the return to Canada more complicated and likely more difficult . . . and this year's circumstances likely add a lot to the difficulty.

Just scratching the surface, it makes a difference if the children are carrying visa-exempt passports which might enable her to bring them with her and seek to have them given extended visitor status upon arrival, pending further applications. Otherwise immigration applications for temporary resident visas would need to be applied for and obtained, or she would have to come to Canada without her children and apply so they could join her later. And of course that is IF successful.

And she would need to be self-supporting (at least not on public assistance) upon arrival, and while in Canada, to be eligible to sponsor children.

Frankly, this forum is not well equipped to address matters this complicated. To do any more than scratch the surface of what needs to be considered would require sharing far more personal information than anyone should share in a venue like this . . . and even then, posts here cannot and should not be considered expert opinion let alone competent advice.

Overall, as a PR who has been issued a PR TD, she should be able to come to Canada and live here. Even apply for a new PR card IF the PR TD was issued with the H&C coding (others should remember what that is better than me). And thus live here. But sponsoring dependents is a separate process. She MUST be in Canada to do that. Her PR status must be good to do that. She cannot be on public assistance. And in the near term, bringing the children to Canada with her, could be tricky or possibly even very difficult.

 

[hnjsh]

She would need to move to Canada, wait 2 years and then she will qualify to sponsor her children.

but what about the expired PR CARD , health coverage & what would be the next steps after returning to canada for PR card renewal ? i dont know how they issue new pr card in my case

 

[hnjsh]

There are many more factors to consider in this scenario. How and why the H&C case persuaded a visa office to issue a PR TD is among them. But there are others.

Generally I'd disagree with the observation by @canuck78 about having to wait two years for a returning PR who clearly was issued a PR TD for H&C reasons. That decision generally means, in effect, the PR is in status and that is all that is necessary to meet that element (there are additional elements of course) of qualifying to be a sponsor, that is, having valid PR status. (I assume the reason for the two year wait comment was about getting to Canada and back into compliance with the RO before being eligible to sponsor . . . but a formal H&C decision overcomes that.)

But we have seen some routine PR TDs issued even to PR's applying for one based on H&C reasons despite the Residency Obligation. If the PR TD does not include the coding for the H&C decision, that alone can make decision-making more complicated.

And of course it is crucial to actually return to and settle in Canada within the time the PR TD is valid.

Having children makes the return to Canada more complicated and likely more difficult . . . and this year's circumstances likely add a lot to the difficulty.

Just scratching the surface, it makes a difference if the children are carrying visa-exempt passports which might enable her to bring them with her and seek to have them given extended visitor status upon arrival, pending further applications. Otherwise immigration applications for temporary resident visas would need to be applied for and obtained, or she would have to come to Canada without her children and apply so they could join her later. And of course that is IF successful.

And she would need to be self-supporting (at least not on public assistance) upon arrival, and while in Canada, to be eligible to sponsor children.

Frankly, this forum is not well equipped to address matters this complicated. To do any more than scratch the surface of what needs to be considered would require sharing far more personal information than anyone should share in a venue like this . . . and even then, posts here cannot and should not be considered expert opinion let alone competent advice.

Overall, as a PR who has been issued a PR TD, she should be able to come to Canada and live here. Even apply for a new PR card IF the PR TD was issued with the H&C coding (others should remember what that is better than me). And thus live here. But sponsoring dependents is a separate process. She MUST be in Canada to do that. Her PR status must be good to do that. She cannot be on public assistance. And in the near term, bringing the children to Canada with her, could be tricky or possibly even very difficult.

thank u for explaining more...my PRTD approved on the h&c grounds so do u know anything further that what would be the next steps after returning to canada ? what are my chances for approval of new pr card ?