RO not met + card expired = Trouble

[armoured]

Great comment. Thanks a lot. Now I understand that i could try to get to the border because: - for sure i will be authorized to enter the country, but with in the best case a warning

My personal view is, in brief:
-if you decide to try at land border, you will at least know quickly whether you have been let off with a warning/waved through OR issued the 44(1) report. That is a decision point, where you can make one decision (some might indeed decide that appealing is a testing process).
-after that, the 'settlement issues' mentioned by others - getting a job, etc - are (again, IMO) probably the most challenging and the biggest factor in how things go long term. That can vary a lot from individual to individual case, commitment, etc. I'm not comfortable with telling others what makes sense for them.

Good luck/good decision making.

 

[canuck78]

Would add for proof of an H&C situation , especially if having to appeal, you must show that you had no choice but to remain abroad and returned as soon as possible. Inability to find employment would not be viewed as an H&C reason. Serious illness of a family member with no other family available to care the individual is a common reason for H&C. You do need documentation proving this.

 

[armoured]

Would add for proof of an H&C situation , especially if having to appeal, you must show that you had no choice but to remain abroad and returned as soon as possible. Inability to find employment would not be viewed as an H&C reason. Serious illness of a family member with no other family available to care the individual is a common reason for H&C. You do need documentation proving this.

Let's please not get into what 'proof' is needed. I see and hear a lot of pronouncements about what is needed and what 'counts,' or what is sufficient. (Although I do agree that the standard is going to be more demanding upon appeal).

We don't decide. IRCC does, or CBSA officers with other considerations than your idea of what is sufficient. Clearly cases with solid evidence of a true urgent need or situation which prevented the PR from returning to Canada are more compelling. Someone in a coma after an accident until the day they got on a plane - okay, clear case. Not many cases are so simple.

But officers will (must) listen and take into account H&C factors. Then they decide. Your opinions on what is sufficient are just that, your opinions. Let's not discourage anyone from making the case that they have.

Apart from that:
-it does not seem, from reports here, that PRs arriving at a border are ever required to 'prove', with documents, their H&C circumstances. It is primarily a verbal interview.
-Being able to show some evidence, or at least demonstrate/gesture that one has some evidence might be useful. For example, having a folder with some docs, which the officer may want to look at, briefly, or may not. But again: distinction here between 'proof' (to what standard? this is not a criminal trial) and evidence is important. Having some evidence may help to get organized and demonstrate seriousness, though.
-Again though: it's primarily verbal. Going on at excessive length about reasons might not be helpful. More important to be clear.
-Instead: state the reasons and circumstances, simply, briefly. Answer questions that the officer asks - briefly.
-It's okay to include reasons that on their own may not be 'sufficient.'
-Tell the truth, because lies or misleading are going to undermine credibility (another reason to not talk too much).

-Written / documentary evidence is likely only going to be required at the appeal stage. Again, no need to get into what is 'proof.' It's evidence of H&C circumstances.

And yes, inability to find employment esp during the pandemic can be stated as a reason. The officer may not think it's sufficient - that's a different matter; it IS a reason, even if only in part.

Reasons are not considered individually and thrown out. They're looked at together. Several individually not compelling reasons may look differently as a whole, esp at a port of entry interview where a judgment is being made quickly.

 

[canuck78]

Let's please not get into what 'proof' is needed. I see and hear a lot of pronouncements about what is needed and what 'counts,' or what is sufficient. (Although I do agree that the standard is going to be more demanding upon appeal).

We don't decide. IRCC does, or CBSA officers with other considerations than your idea of what is sufficient. Clearly cases with solid evidence of a true urgent need or situation which prevented the PR from returning to Canada are more compelling. Someone in a coma after an accident until the day they got on a plane - okay, clear case. Not many cases are so simple.

But officers will (must) listen and take into account H&C factors. Then they decide. Your opinions on what is sufficient are just that, your opinions. Let's not discourage anyone from making the case that they have.

Apart from that:
-it does not seem, from reports here, that PRs arriving at a border are ever required to 'prove', with documents, their H&C circumstances. It is primarily a verbal interview.
-Being able to show some evidence, or at least demonstrate/gesture that one has some evidence might be useful. For example, having a folder with some docs, which the officer may want to look at, briefly, or may not. But again: distinction here between 'proof' (to what standard? this is not a criminal trial) and evidence is important. Having some evidence may help to get organized and demonstrate seriousness, though.
-Again though: it's primarily verbal. Going on at excessive length about reasons might not be helpful. More important to be clear.
-Instead: state the reasons and circumstances, simply, briefly. Answer questions that the officer asks - briefly.
-It's okay to include reasons that on their own may not be 'sufficient.'
-Tell the truth, because lies or misleading are going to undermine credibility (another reason to not talk too much).

-Written / documentary evidence is likely only going to be required at the appeal stage. Again, no need to get into what is 'proof.' It's evidence of H&C circumstances.

And yes, inability to find employment esp during the pandemic can be stated as a reason. The officer may not think it's sufficient - that's a different matter; it IS a reason, even if only in part.

Reasons are not considered individually and thrown out. They're looked at together. Several individually not compelling reasons may look differently as a whole, esp at a port of entry interview where a judgment is being made quickly.

Agree that it is a complex scenario but people need to be prepared with documentation and should not just rely on stating their reasons. Whether it is needed or not can’t be determined in advance. Not being able to find employment at the height of Covid lead to many returning in 2022 maybe even 2023 very tough to justify midway through 2024.

 

[armoured]

Agree that it is a complex scenario but people need to be prepared with documentation and should not just rely on stating their reasons. Whether it is needed or not can’t be determined in advance. Not being able to find employment at the height of Covid lead to many returning in 2022 maybe even 2023 very tough to justify midway through 2024.

I repeat:
-interview at border is primarily verbal. Documentation may help, and help a lot, but not required - recommended, sure. Regardless, calling it 'proof' is misleading, and intimidating for no reason. They show supporting evidence.

-I believe I was clear that employment issues during a pandemic IS a reason, even if not likely to be sufficient on its own. Telling people it is not a reason is telling them not to provide evidence or reasons which may support their case. Yes, that does mean that OTHER additional reasons or explanations may be needed - on which I was also clear.

 

[dpenabill]

Great comment. Thanks a lot. Now I understand that i could try to get to the border because: - for sure i will be authorized to enter the country, but with in the best case a warning (i don't believe as i usually have bad luck in life) or most probably a H&C case to defend and if the agent is hostile, he will start a 44(1) and i will have to wait for the decision (during which i work and finance myself health care etc.) .

Given the good and thorough commentary by @armoured, and the clear statement of your options by @Besram Tuesday, as well as clear responses by @Naturgrl, not sure much more needs to be said.

But I will offer some observations about the procedure.

There are three main reasons why the odds are better arriving at the border from the U.S., in contrast to applying for a PR Travel Document:

1) A PR outside Canada who does not have a valid PR card is presumed to not have permanent resident status. This is prescribed by statute in Section 31(2)(b) IRPA here: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-5.html#h-274598​

​

2) The primary focus of screening a returning Canadian at a Port-of-Entry is to verify their Canadian status (PR or citizen), and thus a returning PR might not even be asked questions about their compliance with the RO; in contrast, an application for a PR TD requires the visa office to make a Residency Determination, and the PR must include sufficient information and some supporting documents to facilitate the visa office in making a determination the PR has complied with the RO​

​

3) The PR arriving at the border via the U.S. will be allowed to enter Canada even if issued a Removal Order, and this will allow the PR to remain in Canada pending an appeal . . . while staying in Canada pending an appeal may only improve the odds of succeeding by a little, being outside Canada while an appeal is pending hurts the odds considerably​

That is, there is very little chance of a lenient waive through the PR TD process.

In contrast, there is a real chance of being waived through a PoE without being subject to a more or less formal Residency Determination. And even if an inadmissibility report is prepared, and the officer reviewing that report is not favourably persuaded by H&C factors, so a Removal Order is issued, the PR still gets to enter Canada and stay pending an appeal (notice of appeal needs to be filed within 30 days; appeals generally take at least six or more months, often a year, sometimes much longer such as it was in the wake of Covid).



. . . "if the agent is hostile, he will start a 44(1) . . . "

Notwithstanding occasional claims to the contrary, even when dealing with difficult clients, generally CBSA officers are NOT hostile. It happens, sure. They are human. Flawed. Prone to some biases. But mostly, and mostly by a big margin, they are professional and courteous.

They are nonetheless law enforcement officers (employed by the Department of Public Safety) with a mandate to apply and enforce the law. If a traveler with Canadian PR status is referred to Secondary, and in the examination in Secondary the officer determines the PR is in breach of the PR Residency Obligation, it is the examining officer's duty to prepare a 44(1) inadmissibility report. That report is then and there, while the PR is still in the Port-of-Entry (thus not yet given permission to enter Canada), referred to a second CBSA immigration officer whose job will be to review the report, and if the report is valid in law (which, if you have not been in Canada at all for more than the last three years, the breach is obvious) then assess whether you should be allowed relief, allowed to keep PR status, based on H&C reasons. None of the officers engaged with during this process are likely to be "hostile," but doing their job.

Some are undoubtedly more lenient than others. But again, none are likely to be hostile.

Among the reasons it is said that the odds are better arriving at the border from the U.S., in contrast to applying for a PR Travel Document, is that anecdotal reporting indicates that a significant number of PRs in similar circumstances are waived through the Primary Inspection Line, no referral for examination in Secondary. The outcome of that is the PR is allowed into Canada without being subject to inadmissibility proceedings. If this happens, and the PR can stay for two years, that will cure the RO breach, and the PR gets to keep PR status.

Even if referred to Secondary, anecdotal reporting suggests that some PRs in RO breach are waived into Canada without an inadmissibility Report being prepared. Despite clearly being in breach of the RO. Why varies, ranging from officers too busy to bother, to others just plain being lenient, or it may be due to the Secondary officer being sympathetic to proffered H&C reasons (technically this is not the officer whose job it is to assess whether there are sufficient H&C reasons to allow the PR to keep status despite the breach).


Making the H&C case:

That's a big, complex subject. For PRs who are in breach by a lot (more than a year), making the H&C case is tricky. I fully concur in the approach suggested by @armoured . . . focus on explaining YOUR reasons for not returning to Canada sooner, YOUR STORY so to say. If that does not work at the PoE and you need to appeal, you can (and in my view you SHOULD) get a lawyer to help make the H&C case on appeal.

Thing is, as noted, making the H&C case is tricky. Employment related issues and reasons, for example, can have a positive influence in some cases, or have no influence one way or the other in a lot of cases, or be a negative factor in the assessment of H&C reasons. Most people can effectively tell their story, the way it is, and come across more honest and genuine doing so, and during a PoE examination that is hugely important. (To the extent there is a risk of triggering a border officer's hostility, being evasive let alone appearing to hide something will increase the risk considerably), If need be, if it becomes necessary to appeal, again once in Canada the PR can get a lawyer's help in better making the H&C case.


Odds of Keeping PR Status:

It is impossible to say what the odds are. It is particularly difficult to assess the odds of a H&C case succeeding. However, probably prudent to caution that if it has been nearly five years, let alone more since you were last in Canada, unless you are lucky in being waived through without being questioned about RO compliance, saving your PR status is probably a long shot, long enough anyway you should be prepared for losing status . . . depending of course on what H&C reasons you have.

 

[SuperMarco]

My personal view is, in brief:
-if you decide to try at land border, you will at least know quickly whether you have been let off with a warning/waved through OR issued the 44(1) report. That is a decision point, where you can make one decision (some might indeed decide that appealing is a testing process).
-after that, the 'settlement issues' mentioned by others - getting a job, etc - are (again, IMO) probably the most challenging and the biggest factor in how things go long term. That can vary a lot from individual to individual case, commitment, etc. I'm not comfortable with telling others what makes sense for them.

Good luck/good decision making.

Thank you very much ! I don't expect in waved issue, but in a warning issue unfortunately. You are so right, settlement issues are the most challenging but i expect to apply (after i pass my canadian degree) for a job becore i reach the border. Again thank you.

 

[SuperMarco]

Would add for proof of an H&C situation , especially if having to appeal, you must show that you had no choice but to remain abroad and returned as soon as possible. Inability to find employment would not be viewed as an H&C reason. Serious illness of a family member with no other family available to care the individual is a common reason for H&C. You do need documentation proving this.

Thank you very much. " Serious illness of a family member with no other family available to care the individual i": i confirm that if unemployment was the core issue, i had to deal with old people from my family and i'm the only one who fund them. I didn't know it could be see as HC but if you say so, it could be an important issue. Thank you so much.

 

[SuperMarco]

Let's please not get into what 'proof' is needed. I see and hear a lot of pronouncements about what is needed and what 'counts,' or what is sufficient. (Although I do agree that the standard is going to be more demanding upon appeal).

We don't decide. IRCC does, or CBSA officers with other considerations than your idea of what is sufficient. Clearly cases with solid evidence of a true urgent need or situation which prevented the PR from returning to Canada are more compelling. Someone in a coma after an accident until the day they got on a plane - okay, clear case. Not many cases are so simple.

But officers will (must) listen and take into account H&C factors. Then they decide. Your opinions on what is sufficient are just that, your opinions. Let's not discourage anyone from making the case that they have.

Apart from that:
-it does not seem, from reports here, that PRs arriving at a border are ever required to 'prove', with documents, their H&C circumstances. It is primarily a verbal interview.
-Being able to show some evidence, or at least demonstrate/gesture that one has some evidence might be useful. For example, having a folder with some docs, which the officer may want to look at, briefly, or may not. But again: distinction here between 'proof' (to what standard? this is not a criminal trial) and evidence is important. Having some evidence may help to get organized and demonstrate seriousness, though.
-Again though: it's primarily verbal. Going on at excessive length about reasons might not be helpful. More important to be clear.
-Instead: state the reasons and circumstances, simply, briefly. Answer questions that the officer asks - briefly.
-It's okay to include reasons that on their own may not be 'sufficient.'
-Tell the truth, because lies or misleading are going to undermine credibility (another reason to not talk too much).

-Written / documentary evidence is likely only going to be required at the appeal stage. Again, no need to get into what is 'proof.' It's evidence of H&C circumstances.

And yes, inability to find employment esp during the pandemic can be stated as a reason. The officer may not think it's sufficient - that's a different matter; it IS a reason, even if only in part.

Reasons are not considered individually and thrown out. They're looked at together. Several individually not compelling reasons may look differently as a whole, esp at a port of entry interview where a judgment is being made quickly.

Thank you so much for this importance piece of explanation. I understand that at the border, it is an oral discussion but i must come with some clear explanations and documents to credibilize my point. So i think based on all of you guys explanations, that at the border I will claim for the H&C cases (difficulty to find job particularly during covid period, hopefully new local degre, documents showing that i fund family at home and i'm the only one). After the interview, from what i understand, i will be let enter the country and later they might ask me more documents to make a decision (as i said, i prefer not appeal because i'm pessimistic). If my case got rejected, i will have to leave everything and go back home, perhaps to launch a new procedure for get the PR.

 

[SuperMarco]

Agree that it is a complex scenario but people need to be prepared with documentation and should not just rely on stating their reasons. Whether it is needed or not can’t be determined in advance. Not being able to find employment at the height of Covid lead to many returning in 2022 maybe even 2023 very tough to justify midway through 2024.

Thank you ! True. In fact, i was discouraged, and still work at home to fund old family. It's about being discouraged. To tell the truth, i still applied (i have proof of dozens of failed applications) but i decided to do a canadian degree to be more confortable to apply again => it explains the delay because the degree takes me almost two years of preparation and i hope to succeed in the soon exam.

 

[SuperMarco]

I repeat:
-interview at border is primarily verbal. Documentation may help, and help a lot, but not required - recommended, sure. Regardless, calling it 'proof' is misleading, and intimidating for no reason. They show supporting evidence.

-I believe I was clear that employment issues during a pandemic IS a reason, even if not likely to be sufficient on its own. Telling people it is not a reason is telling them not to provide evidence or reasons which may support their case. Yes, that does mean that OTHER additional reasons or explanations may be needed - on which I was also clear.

Thanks a lot. Very clear, i agree with all your points and will follow all your advices.

 

[SuperMarco]

Given the good and thorough commentary by @armoured, and the clear statement of your options by @Besram Tuesday, as well as clear responses by @Naturgrl, not sure much more needs to be said.

But I will offer some observations about the procedure.

There are three main reasons why the odds are better arriving at the border from the U.S., in contrast to applying for a PR Travel Document:

1) A PR outside Canada who does not have a valid PR card is presumed to not have permanent resident status. This is prescribed by statute in Section 31(2)(b) IRPA here: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-5.html#h-274598​

​

2) The primary focus of screening a returning Canadian at a Port-of-Entry is to verify their Canadian status (PR or citizen), and thus a returning PR might not even be asked questions about their compliance with the RO; in contrast, an application for a PR TD requires the visa office to make a Residency Determination, and the PR must include sufficient information and some supporting documents to facilitate the visa office in making a determination the PR has complied with the RO​

​

3) The PR arriving at the border via the U.S. will be allowed to enter Canada even if issued a Removal Order, and this will allow the PR to remain in Canada pending an appeal . . . while staying in Canada pending an appeal may only improve the odds of succeeding by a little, being outside Canada while an appeal is pending hurts the odds considerably​

That is, there is very little chance of a lenient waive through the PR TD process.

In contrast, there is a real chance of being waived through a PoE without being subject to a more or less formal Residency Determination. And even if an inadmissibility report is prepared, and the officer reviewing that report is not favourably persuaded by H&C factors, so a Removal Order is issued, the PR still gets to enter Canada and stay pending an appeal (notice of appeal needs to be filed within 30 days; appeals generally take at least six or more months, often a year, sometimes much longer such as it was in the wake of Covid).



. . . "if the agent is hostile, he will start a 44(1) . . . "

Notwithstanding occasional claims to the contrary, even when dealing with difficult clients, generally CBSA officers are NOT hostile. It happens, sure. They are human. Flawed. Prone to some biases. But mostly, and mostly by a big margin, they are professional and courteous.

They are nonetheless law enforcement officers (employed by the Department of Public Safety) with a mandate to apply and enforce the law. If a traveler with Canadian PR status is referred to Secondary, and in the examination in Secondary the officer determines the PR is in breach of the PR Residency Obligation, it is the examining officer's duty to prepare a 44(1) inadmissibility report. That report is then and there, while the PR is still in the Port-of-Entry (thus not yet given permission to enter Canada), referred to a second CBSA immigration officer whose job will be to review the report, and if the report is valid in law (which, if you have not been in Canada at all for more than the last three years, the breach is obvious) then assess whether you should be allowed relief, allowed to keep PR status, based on H&C reasons. None of the officers engaged with during this process are likely to be "hostile," but doing their job.

Some are undoubtedly more lenient than others. But again, none are likely to be hostile.

Among the reasons it is said that the odds are better arriving at the border from the U.S., in contrast to applying for a PR Travel Document, is that anecdotal reporting indicates that a significant number of PRs in similar circumstances are waived through the Primary Inspection Line, no referral for examination in Secondary. The outcome of that is the PR is allowed into Canada without being subject to inadmissibility proceedings. If this happens, and the PR can stay for two years, that will cure the RO breach, and the PR gets to keep PR status.

Even if referred to Secondary, anecdotal reporting suggests that some PRs in RO breach are waived into Canada without an inadmissibility Report being prepared. Despite clearly being in breach of the RO. Why varies, ranging from officers too busy to bother, to others just plain being lenient, or it may be due to the Secondary officer being sympathetic to proffered H&C reasons (technically this is not the officer whose job it is to assess whether there are sufficient H&C reasons to allow the PR to keep status despite the breach).


Making the H&C case:

That's a big, complex subject. For PRs who are in breach by a lot (more than a year), making the H&C case is tricky. I fully concur in the approach suggested by @armoured . . . focus on explaining YOUR reasons for not returning to Canada sooner, YOUR STORY so to say. If that does not work at the PoE and you need to appeal, you can (and in my view you SHOULD) get a lawyer to help make the H&C case on appeal.

Thing is, as noted, making the H&C case is tricky. Employment related issues and reasons, for example, can have a positive influence in some cases, or have no influence one way or the other in a lot of cases, or be a negative factor in the assessment of H&C reasons. Most people can effectively tell their story, the way it is, and come across more honest and genuine doing so, and during a PoE examination that is hugely important. (To the extent there is a risk of triggering a border officer's hostility, being evasive let alone appearing to hide something will increase the risk considerably), If need be, if it becomes necessary to appeal, again once in Canada the PR can get a lawyer's help in better making the H&C case.


Odds of Keeping PR Status:

It is impossible to say what the odds are. It is particularly difficult to assess the odds of a H&C case succeeding. However, probably prudent to caution that if it has been nearly five years, let alone more since you were last in Canada, unless you are lucky in being waived through without being questioned about RO compliance, saving your PR status is probably a long shot, long enough anyway you should be prepared for losing status . . . depending of course on what H&C reasons you have.

Thank you so much for this impressive piece of arguments. I was optimistic at the begining of your text and pessimistic at the end ;-) Your arguments on the 3 main reasons are strong and convincing. Impressive. I understand that H&C is random and perhaps doing an appeal makes more sense with a consultants in immigration because the process is complex. But as you said, i agree, i must be prepared to be ousted from the country and thats life; in this case, i will try to re apply again (hopefully, ircc will not consider that losing my PR is a reason for not accepting my application). So many thanks really !

 

[canuck78]

Thank you ! True. In fact, i was discouraged, and still work at home to fund old family. It's about being discouraged. To tell the truth, i still applied (i have proof of dozens of failed applications) but i decided to do a canadian degree to be more confortable to apply again => it explains the delay because the degree takes me almost two years of preparation and i hope to succeed in the soon exam.

Having to care financially for older family members is not typically an H&C reason. You would be leaving a stable job where you live close to those older family members to come to uncertainty in Canada. Unless you have extremely rare skills or get transferred by an employer it is extremely difficult to secure a first job in Canada in your mid 40s. For many who have worked in Canada their whole lives the job market is very hard at the moment and is likely to get worse. Getting hired from abroad also likely not realistic although there are some exceptions. You really need to look at cost of living in Canada. You may get paid slightly more but the cost of living can be much higher which may actually leave you with less money in the end.

 

[Copingwithlife]

I think it is not so simple, and misidentifying to say 'left.' (Giving all foreign students the right to work 40 or more hours a week is hardly a 'left' position, IMO anyway).

Seven of ten premiers and provincial governments are clearly of the 'right' - six are PC or conservative-affiliated parties. Okay, QC may be different in a qualitative way. (Likewise I can't figure out BC politics).

That is in significant ways more 'balance' than the red/blue split. to say Canada is far left is ridiculous.

“to say Canada is far left is ridiculous”

That would be your opinion

 

[armoured]

... at the border I will claim for the H&C cases (difficulty to find job particularly during covid period, hopefully new local degre, documents showing that i fund family at home and i'm the only one).

-You don't need to state that these are H&C reasons, you'll just get asked what reasons you had - give them.

-Ignore comments telling you your reasons don't count. Give the reasons you have. (I would rephrase slightly however to put emphasis on caring for family, not just funding them - funding is however part of it).

-I am stating this as if you have decided to do so; I do however agree that the challenges of settling can be substantial.