Returning to Canada strange story - need next action

[Dave4236]

Returning to Canada strange story here – looking for advice on next action

Landed Immigrant from 1977 to 1984 as sponsored by Canadian wife. Returned to USA with Canadian wife in 1984. Started to look into retirement in Canada in 2012 so asked CBSA when crossing if old Landed Immigrant status was valid. I was told, with no actual checking, that NO and would need to apply again.

Applied in March 2015 for Sponsored Immigration. Sponsorship was approved and application is currently In-Process. Stopped again at border to ask questions of CBSA in August. Officer said that I did NOT need the application and it should have been caught as an error. That because I was still WITH my Canadian wife I was still a Permanent Resident. He stamped my current USA passport with the CBSA stamp and put in “PR” with my original IMM1000# and its 1977 date.

Now when I go to the eCAS I have two items. The Immigration Application is shown as In-Process and still needs meds. I also am showing a PR Card that has the status of Decision Made. That one shows that application was made, approved and will be sent. Those events all have the same date, the Saturday that I had stopped at CBSA.

I sent in a valid Canadian mailing address soon after that since they only had my USA address. I then get in late September a form email that the Immigration application still needs meds and further proof that my wife really will return to Canada. No mention of the Canada mail address or the PR Card approved.

So what should I do here?

 

[david1697]

THIS IS NOT A LEGAL ADVISE. I MERELY POST MY PERSONAL "LAYMAN" OPINION. NO DECISION WITH LEGAL CONSEQUENCES CAN BE MADE READING MY IDLE SPECULATION, THOUGHTS AND OPINIONS SHARED.


I think you should withdraw your PR app. It's very odd that it went so far as CIC requesting meds.

The way the laws are written (although written in plain English), they may sound to an untrained in legal field person like a complex set of algorithmic formulas (ex.: if A do B, but if A has C then look at D and do E, however if D has F which refers to B and explains H then do G. But G is not valid if H preceded by A and etc.). Majority of people in charge of applying these complex laws and regulations are ordinary folks who had may be 2 or 3 weeks of training on extremely large volume of subjects, and they are now in charge of enforcing all these laws, as well as granting the benefits/admitting applicants to Canada, etc. Mistakes can and do happen.

Above all make sure you are entitled to the PR status confirmed by the Border Agent. If the guy who stamped your passport "PR" made a mistake, and by relying on it you abandon your pending PR application, then you may find yourself loosing both your status and application. You may then really need to start it all over from the scratch.

But assuming there was no mistake made (and you are entitled to maintain your PR status, which you presumably never lost), then you will need to deal with the formal withdrawal of your pending PR app. This may be as simple as sending a letter with specific request, or just not doing your medicals.
However, it may also get more complicated , with 2 separate records of you being created in the system and causing you a major pain when you next time travel out of and return to Canada. Dumbfounded POE officers may even arrest and detain you, thinking you have multiple ID's and are a fraudulent criminal.

Good luck

 

[Leon]

Withdraw your application based on having made a mistake in applying as you did not know that living outside Canada with your Canadian citizen wife would have protected your PR status all these years.

Then apply for a PR card based on that you have spent the past 5 years living with your Canadian citizen wife outside Canada. I know eCAS says you already applied for a PR card and it will be sent but unless you filled out an application and provided photos for a PR card, I don't think you will be getting one.

Your SIN will be dormant after not having used it in many years and so will your wife's so you both have to go to Service Canada and have them reactivated.

 

[Dave4236]

About my claim for PR status itself. Is there any “gotcha” of the old rules that could pop up to invalidate a PR status now? It seems, at least to me now that I very clearly meet the “current” rules. I can easily demonstrate that my Canadian citizen wife and I have been together not just 5 years but 43 years if necessary with many document tracks. However, I think that at the time I departed Canada (1984) the residency requirements were something quite different. I seem to recall something like 6 out of 12 months and I have no idea if there was a spouse loop-hole to it. When I left Canada I paid taxes for my last year of residency, but did not file anything with the border or tell Immigration and Manpower that I was leaving. I just moved to the USA and that was it. Was there any automatic old denial of status system that might come into play now?

The current feeling that I get is that what was then was then. Now there are particular Rights and Obligations of the PR status. The individual is responsible for maintaining those Obligations, but there are also Rights and that PR status cannot be taken away without specific and deliberate government action with the individual.

So with having maintained current residency requirements by being with the Canadian citizen spouse and not having any direct and specific denial of status, there should not be any issue???

Any and all comments will be appreciated.

 

[Lammawitch]

There is no "gotcha" .

 

[Leon]

About my claim for PR status itself. Is there any “gotcha” of the old rules that could pop up to invalidate a PR status now? It seems, at least to me now that I very clearly meet the “current” rules. I can easily demonstrate that my Canadian citizen wife and I have been together not just 5 years but 43 years if necessary with many document tracks. However, I think that at the time I departed Canada (1984) the residency requirements were something quite different. I seem to recall something like 6 out of 12 months and I have no idea if there was a spouse loop-hole to it. When I left Canada I paid taxes for my last year of residency, but did not file anything with the border or tell Immigration and Manpower that I was leaving. I just moved to the USA and that was it. Was there any automatic old denial of status system that might come into play now?

The current feeling that I get is that what was then was then. Now there are particular Rights and Obligations of the PR status. The individual is responsible for maintaining those Obligations, but there are also Rights and that PR status cannot be taken away without specific and deliberate government action with the individual.

So with having maintained current residency requirements by being with the Canadian citizen spouse and not having any direct and specific denial of status, there should not be any issue???

Any and all comments will be appreciated.

Immigration made a set of rules just for you

Here goes:

Pursuant to A28(2), a permanent resident complies with the residency obligation provisions with respect to a five-year period if, for at least 730 days in that five-year period, the permanent resident is physically present in Canada, or:
 is outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or is a child accompanying a parent;
 is outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province;
 is an accompanying spouse, common-law partner or child of a permanent resident who is outside Canada and is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province.

And:

For persons who have been permanent residents of Canada for more than five years, the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office. A28(2)(b)(ii) precludes a visa officer from examining any period other than the most recent five-year period immediately before the date of receipt of the application.

Even if a person had resided away from Canada for many years, but returned to Canada and resided there for a minimum of 730 days during the last five years, that person would comply with the residency obligation and remain a permanent resident. An officer is not permitted to consider just any five-year period in the applicant’s past, but must always assess the most recent five-year period preceding the receipt of the application.

So they can not say that you lost your PR based on some rules that were in effect back then. Since you haven't officially lost your PR yet, you still have it and the rules say that the only period they can look at in your case is the past 5 years and as long as you spent at least 730 days in the past 5 years accompanying your Canadian spouse in another country, you are ok.

These quotes by the way come from a document called operational manual OP10 Permanent Residency Status Determination. You can find it here: http://www.cic.gc.ca/english/resources/manuals/ under Overseas processing or directly here: http://www.cic.gc.ca/english/resources/manuals/op/op10-eng.pdf What I quoted is on pages 11 and 12.

 

[Dave4236]

Thank you Leon, that is not only hugely helpful, but also very comforting. There has been this unfounded, but nagging fear at the back of our minds of showing up at the border with the moving van and then being refused. It is amazing also just how different things are handled between the US and Canada immigration.

 

[Msafiri]

...... I also am showing a PR Card that has the status of Decision Made. That one shows that application was made, approved and will be sent. ...

Did you ever apply for a PR card? As advised you are still a PR. Sometimes CIC's record keeping especially for PRs landed pre the 90s isn't the best. They should have realised you were a PR and returned your new PR application paperwork and fees. Write to CIC and cancel this new PR application - you can ask for a refund...you may get it based on admin errors on CIC's part. If you ignore it they will just blame you for not following instructions. Good luck and welcome back.

 

[KENQ]

Hi, I am in a similar situation. Is anyone still monitoring this thread? Thanks!