Hey Visa Vets,
Curious case on my end. Landed in Oct 2018 from Dubai, but had to fly back due to my mothers health. Have extensive paperwork from all the hospital visits.
Fast forward to 2019 Oct, and I had an heart issue too which came with its own hospital visits. Took a while to figure out what it was, nearly placed a pacemaker (thankfully did not need to).
Finally, plan to move in March 2020, but COVID hits with full force. All plans thrown out the window.
Three years will be done in Oct 2021 and I have about 15 days in Canada total.
Which options could work? I’m guessing best move is to close my eyes and move now (along with substantial savings since I was in Dubai and earning) which will help me better settle in TO.
Option 1: Move before Oct, potentially through my existing company since they have office there. Not easy considering COVID is slowing down hiring and lockdown is still in full force.
Option 2: Move next year in March 2022 (3.5 years out of CA), and stay a full 3 years (750 days and few more) before renewing my expired PR. Potentially, NOT be able to fly back to Dubai in case of any emergencies (maybe I can call my parents over, and not worry about traveling outside Canada).
Option 3: Apply for H&C now, explaining everything to an officer. Don’t know if this is even a thing.
Interested to know your opinions on this one.
Other details that may be interesting:
Have a great job here in Dubai. Pays well and excellent insurance. Single, with parents and brother in UAE. Move feels iffy in COVID situation but don’t want to throw away my PR. Was also thinking of EU and potential of PR through Portugal D7/D2 visas.
Largely agree with response by
@bellaluna . . . except in regards to "
Option 3."
Overall (except in regards to Option 3), the basics are not complicated:
For purposes of keeping Canadian PR status, the best approach is to comply with the Residency Obligation. If that is not possible, next best approach is to come to Canada to stay as soon as possible, knowing that failing to comply with the RO
NECESSARILY involves some
RISK of losing it, and recognizing the extent of the risk depends primarily on the number of days spent outside Canada (reasons for remaining abroad can be a big factor, but the dominant factor is simply comparing number of days IN Canada to days OUTSIDE).
What you decide to do is a very PERSONAL decision, and depends a lot on YOUR personal priorities. That's one of those things about real life: sometimes we must make difficult choices, and sometimes make those choices subject to more than a little uncertainty as to how things will turn out.
I will address Option 3 further because it offers an opportunity to clarify, with some emphasis, that H&C relief for a failure to comply with the PR Residency Obligation is an EXCEPTION.
Option 3: Apply for H&C now, explaining everything to an officer. Don’t know if this is even a thing.
This is NOT an option, not "now" anyway. So, it is indeed not "
even a thing," so to say.
There is no procedure for obtaining relief (H&C or otherwise) from a failure to comply with the Residency Obligation in advance of a breach of the RO. After all, in addition to there being no need (and thus no basis) for H&C relief until the RO has been breached, the key factor in whether H&C relief is appropriate is the extent of the breach (how long the PR has been outside Canada in excess of 1095 days within the relevant time period) and this is based on the date of the examination.
And, generally, with some exceptions, a PR needs to be coming to Canada to stay for there to be a H&C decision allowing relief from a breach of the RO. The exceptions are complicated and rarely a good option, so I will leave that subject for another day.
Bottom-line is that there is NO PROSPECTIVE relief for failing to comply with the RO.
That said, a PR can trigger an examination regarding RO compliance, such as by showing up at a Port-of-Entry (PoE) to re-enter Canada, or by applying for something which depends on the individual's PR status, like applying for a new PR card or applying to sponsor a family member, or by applying for a PR Travel Document at a visa office abroad.
But only if the PR is in breach of the RO at that time, the date of the examination, might that in effect force the examining officer to consider whether H&C relief is appropriate, allowing the PR to retain PR status DESPITE failing to comply with the RO. And that decision-making will be based on that date, NOT some prospective future date. Again, there is NO PROSPECTIVE relief for failing to comply with the RO.
Some Further Observations:
BUT beyond that, this subject invites some further observations which may help illuminate nuances underlying how and why some PRs in breach of the RO are OK, while others do not fare so well.
As already noted, a PR can trigger an examination regarding RO compliance, such as by showing up at a PoE to re-enter Canada, or by applying for something which depends on the individual's PR status, like applying for a new PR card or applying to sponsor a family member, or by applying for a PR Travel Document at a visa office abroad.
And again, only if the PR is in breach of the RO at that time, the date of the examination, might that in effect force the examining officer to consider whether H&C relief is appropriate, allowing the PR to retain PR status DESPITE failing to comply with the RO.
Even then, depending on the context, where the respective officer is inclined to act favourably toward the PR (that is to not make a decision terminating PR status, or stated another way, is inclined to give the PR a chance to keep PR status), it is apparent that CBSA officers (at a PoE, attendant examination of a PR returning to Canada), and to some extent even visa officers abroad making PR TD decisions, are sometimes (my sense is often) exercising discretion to allow the PR to keep status (not issue a formal 44(1) Report during the PoE examination, or grant the PR TD application) rather than making a formal H&C decision. This has the effect of putting off any formal H&C decision pending what the PR does after that . . . in effect giving the PR a chance to stay in Canada (or come and stay in the PR TD context) and get back into compliance. That is (again,
in effect, not formally), it is a form of conditional relief, allowing the PR to keep status conditioned on the PR then actually settling and staying in Canada. This means, looking at the other side of this, if the PR leaves Canada while still in breach of the RO, that PR will again be subject to examination for RO compliance when the PR next returns to Canada (or applies for a PR TD in order to return to Canada).
This is NOT described or even alluded to in official sources of IRCC information. The IRCC Help Centre is not going to say this. For good reasons, and for anyone who follows bureaucratic decision-making, fairly obvious reasons. This process has the effect of allowing more flexibility and leniency IN FAVOUR of PRs than what the law, rules, and official policy prescribes.
For many PRs, especially those running into obstacles delaying when they can actually make the move to settle in Canada a *
little* longer than the RO allows, this is a good thing. It is another layer of flexibility and leniency over and above the rather generous amount of flexibility and leniency hardwired into the 2/5 RO rule itself.
The number of PRs who appear to RELY on this seems to be remarkably high. It is obvious many are taking a big risk doing so.
There are downsides to this kind of discretion. Whenever there is that much unstructured discretion the potential for unfair discrimination looms large. And it is almost certain it otherwise results in disparate results, not due to discrimination but rather due to the vagaries of decision making by different officers, meaning different PRs in very similar circumstances can encounter totally different outcomes, some waived through the PoE, others subject to a decision terminating PR status and issued a Removal Order. In the current scheme of things, this tends to give more PRs a better chance to keep PR status despite failing to comply with the RO, so there is not a lot of pushback or dissent. But it does have at least two negative consequences:
-- again, it results in disparate results which is inherently unfair, but
-- more significantly, it has led to lots of anecdotal reporting suggesting it will be OK, leading some to actually rely on it being OK, and then for some it is NOT OK
I try to not weigh in about what the policy should be.
I recognize how difficult it can be to strike a balance between
-- allowing sufficient flexibility and leniency to give PRs who are really trying to settle in Canada a chance to do so even if they encounter difficulty meeting the RO within the first few years after landing, versus
-- having and applying rules which are definite enough that PRs know what the limits actually are
And of course something like a global pandemic tends to really knock things off track, making things more difficult, more confusing, less certain.
