Introduction:
I offer the long read: detailed explanation, citation, links, and discussion of sources, recognition of conflicting views. But this still does not come close to fully covering questions about Residency Obligation credit for PRs who were not living in Canada with their citizen spouse prior to moving outside Canada.
Your situation, or to be more precise your spouse's situation, which is never having lived in Canada, fits a pattern of cases in which credit toward the Residency Obligation has been denied based on the view the PR did not accompany the citizen spouse in moving abroad from Canada, denying credit for days the PR and citizen spouse were together abroad. However, it is worth noting that how such decisions have fared on appeal has varied, in some the denial of RO credit is upheld, in others it is not upheld. And we do not know how many times officers have allowed the credit despite circumstances suggesting the PR did not go or move abroad (from Canada) with their citizen spouse.
What we know is that in similar circumstances IRCC has denied RO credit and the IAD has agreed with that, but again, that's not how it always goes.
So, as some of what
@armoured posted alluded, this is something that could be a problem,
but might NOT be a problem, no guaranteed way to be sure. It is not even reasonably possible to roughly estimate the risk (with some exceptions).
But there is a real risk. Again, I offer the long read: detailed explanation, citation, links, and discussion of sources, recognition of conflicting views.
I was born in the US. I have a US passport and got my Canadian passport through my Canadian dad. I successfully sponsored my American wife and kids for permanent residency in Canada through family class sponsorship (outland). We live in the US.
. . . I have never lived in Canada.
There are two groups of questions/issues in your "
situation." Both
@armoured and
@canuck78 have alerted you to one, which frankly might be a rather more important one, regarding reliance on an exception to the Residency Obligation, credit for days abroad "
accompanying a Canadian citizen spouse," to meet the RO, when it is rather obvious that your spouse did NOT move or travel abroad with you (that is, your spouse did not leave Canada with you to live outside Canada). Moreover, it appears you have no current, concrete plan to move to Canada, at least not in the near future. I will address these further. Yeah, this part gets complicated.
And as noted by way of introduction:
The caveat is there may be NO PROBLEM at all.
The other group, about traveling to Canada, whether for the landing or to visit (however temporarily, including a cruise ship stop), I'll mostly leave that to others. I will note that generally a U.S. citizen who is a PR does not need a PR card or a PR Travel Document when traveling to Canada, regardless the mode of transportation. As
@armoured noted, there is no reason they should conceal PR status if presenting a U.S. passport at the Port-of-Entry. Additionally, if they do not indicate their PR status upfront, it is nonetheless likely, if not very likely, the border officials will readily see the U.S. traveler is also a Canadian PR. But that should not be a problem. Perhaps some questions about not presenting a PR card, but for at least a couple years, approaching three years after landing (approaching when compliance with the Residency Obligation might become an issue), that's likely to be the extent of it. Again, I'll leave this mostly to others.
In any event, the fact you and your spouse have never lived in Canada, followed by not relocating to Canada within three years (roughly) of your spouse's landing, could pose a problem for your spouse in regards to complying with the Residency Obligation, or raise questions about whether there was misrepresentations made in the sponsorship application (where you had to detail plans to relocate to Canada
WHEN the sponsored family member is issued PR status).
Who-accompanied-whom can matter for PRs living with citizen spouse abroad:
This is about qualifying for RO credit for days outside Canada accompanying a citizen spouse . . .
Short form: not the best idea to rely upon this, they may or may not accept. Issue is basically that the idea is your spouse/children (minor only) travel and or accompany you when you travel from/move from Canada. Since your spouse and children - after soft landing - will have never resided in Canada, IRCC may choose not to accept these as valid for the purposes of meeting the residency obligation.
Potentially this goes all the way up to losing the PR status.
Yep. A fair
heads-up.
It appears, after all, that you (well your spouse to be more precise) will be relying on an exception to the RO (which requires PRs to spend at least 730 days per five year period IN Canada), relying on the exception that will allow credit toward the RO for days abroad "
accompanying" a Canadian citizen spouse.
To be precise this is the credit stated in Section 28(2)(a)(ii) IRPA for days "
outside Canada accompanying a Canadian citizen who is their spouse or common-law partner." This is in the Immigration and Refugee Protection Act; see
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-5.html#h-274598
The relevant Regulation is Section 61(4) IRPR, which is here:
https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-9.html#h-686425 . . . which is the provision cited and relied on in the operational manual you refer to (noting there is more relevant information on page 25, not just between 16 and 20), which states that the PR is "
accompanying outside Canada a Canadian citizen" spouse days the PR "
is ordinarily residing with the Canadian citizen."
Many interpret the Regulation to suggest that as long as the PR is living (cohabitating) with their Canadian citizen spouse, those are days the PR is accompanying their citizen spouse and will be allowed credit toward the RO, and that is what the first paragraph in Section 7.5 (page 25) in the ENF 23, the manual you reference, seems to say as well.
PROBLEM is the Minister of IRCC appears to interpret the statute and regulation more strictly; in particular,
the minister of IRCC argues the credit only applies if the PR accompanies their citizen spouse, not the other way around (that is,
who-accompanied-whom matters), and the intent of the language in the regulation more or less further requires, for days "
accompanying" the citizen spouse to count, that they are ordinarily residing together. In the IAD decision Wu v Canada, 2020 CanLII 68406 (CA IRB),
https://canlii.ca/t/j9q9x in particular, counsel for IRCC argued:
In the Minister’s view . . . each day a permanent resident is outside of Canada accompanying a . . . Canadian citizen is deemed a day of physical presence in Canada, provided that the person accompanied is a spouse, common-law partner or parent with whom he or she ordinarily resides . . .
after having argued "
the legislation requires the appellant to accompany [their]
Canadian citizen spouse outside of Canada and not the other way around . . . "
That is, to get credit, first the PR must have accompanied the citizen spouse in the move abroad, and secondly be ordinarily residing with the citizen spouse.
In another case, in the Ibrahim case at
http://canlii.ca/t/hst3d the Minister's representative similarly argued:
. . . subparagraph 28(2)(a)(ii) requires more than cohabitation. The term “accompanying” requires the appellant to follow his Canadian-citizen spouse and not the reverse.
That is, the Minister appears to take the view that
being-with is not enough to constitute accompanying. The PR more or less needs to have moved abroad, from Canada, with the citizen spouse.
The IAD panel in the Wu case did NOT apply the Minister's view. That IAD panel interpreted "
accompanying" as meaning "
existing together in time and space" and it does not matter who followed whom; there are numerous other decisions similarly allowing credit more or less based on the couple being together. In contrast, in the Ibrahim case the IAD panel, like several other IAD panels, decided that the officer's decision to deny the RO credit was valid in law, more or less rejecting the view that
being-with is enough.
So, again, it goes both ways. It can go either way. Hard to predict in individual cases.
. . . and there is more . . . did I mention I offer the long read?
