Spousal sponsorship query

[Canada2020eh]

Technically, this may be true.

Since there's no clear guideline (> 187 days = bad!) -- if you are a PR leaving Canada for an extended period, you're opening your fate, and that of the person you're sponsoring, being decided by the whims of the Immigration officer inquiring into the facts of your case.

And trusting that that officer's whims are guided by common sense.

Is that a chance you want to take?

You are confused on the issue. If you are a PR sponsoring your spouse you should not be out of the country for more than a month maximum. Your comment about the 187 days relates to you being a RESIDENT as opposed to being a permanent resident, 2 different things.

 

[cjr]

Right, the rule is you must spend 2 full years (730 days) out of 5 years in Canada (or out of Canada with your Canadian Citizen spouse) to be able to renew your PR. Even the immigration lawyer I spoke to before filing my application told us that, and said that's why they suggest being a Canadian PR first, because they are more lenient than the US. There may be more detailed regulations on it and how to qualify for the days in Canada, but from what I understand thats the gist of it

If you can balance the requirements of both countries: have at it!

 

[sgp1986]

I understand now. I was confused with whether we were talking about a citizen sponsoring a spouse vs PR sponsoring a spouse

 

[cjr]

You are confused on the issue. If you are a PR sponsoring your spouse you should not be out of the country for more than a month maximum. Your comment about the 187 days relates to you being a RESIDENT as opposed to being a permanent resident, 2 different things.

That's my point. (and the 187 days was just a random number I picked, since it's not spelled out anywhere.)

 

[AmyL]

Officially, different provinces have different residency rules. Here is a good breakdown...https://blog.ingleinternational.com/how-long-can-a-canadian-snowbird-stay-out-of-the-country/

However, it is up to the agent that looks at the files because many people have complained about issues and denials, so it's probably better to visit a short time until your spouse is approved.

 

[armoured]

I have not taken the time to look recently, but I do not recall seeing in the Immigration and Refugee Protection Act or Regulations a definition of "residing in Canada", "living in Canada" or any of the sort.

Correct - as far as I can tell the regulation they're enforcing has no specific definition of what is meant by residing in Canada, i.e. they are not bound by CRA or provincial or other definitions.

There seem to be many who adhere to the view that a permanent resident sponsoring a spouse is confined to "short trips", abroad, "no more than a month" and such. Is this law or simply a common belief? I hope some one here will educate me if there is indeed a source that shows these beliefs to have the force of law. I think armoured as promised to return here with something authoritative. Until then, all I have to go by is what was cited earlier from the CIC website, about the requirement for a PR sponsor to be "living in Canada". I continue to struggle with the notion that a PR who travels away from Canada for more than a month, or a short vacation, or whatever, ceases to be living in Canada.

Yes, I repeat, there is a specific guideline/regulation (I will not pretend to know what force of law this has, though - i.e. perhaps it could be challenged but that would be a very different and more painful matter for most applicants).

I apologise, I stated I would provide the particular link and I shall, I just don't have it to hand and my quick searches have not turned up the doc I need. I can see it in my mind but not find it on the internet (a reversal of the usual brain shortages).

But it is a regulation/guideline and it is quite specific: short trips for personal or business reasons. The second part is quite specific - a carve-out of sorts for those who have jobs such as seamen where they are billeted for a specific period (note this exists because there are laws that cover seamen under international treaties, at least as far as I understand the issue).

So I will find it and provide here (I have posted on various threads before but can't find easily, perhaps others have retained). But it is a real thing. We do NOT however get a definition from that of what 'short' visits abroad are - various members here report periodic (infrequent) issues where applicants have had trouble with this. (On the other side I have not seen many concrete examples of applicants where the sponsor has left Canada for longer periods of time, either)

So I repeat short form: there IS most definitely a risk. IRCC has the power to decide. Perhaps they will be 'fact-based', or perhaps somewhat arbitrary when they happen to notice it - no-one is claiming that enforcement is strict or consistent.

It is a risk for a sponsor who departs, period. They can decide whether to limit trips to less than a month or five days or not. If they are disqualified, my understanding (non-lawyer) is that there is no effective recourse and they could start an appeal (might take a year or more) or re=apply (might also take a year or more).

My view only, just pointing out the risk.

And yes, I will find the doc and post link here when I have better access/fewer immediate responsibilities.

 

[armoured]

I think armoured as promised to return here with something authoritative. Until then, all I have to go by is what was cited earlier from the CIC website, about the requirement for a PR sponsor to be "living in Canada". I continue to struggle with the notion that a PR who travels away from Canada for more than a month, or a short vacation, or whatever, ceases to be living in Canada.

Here is the source:
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-assessing-sponsor.html

As you can see this is the operational bulletin/manual for assessing family class sponsorship and specifically the sponsor.

The relevant text is:
"A sponsor must be residing in Canada, unless they are a Canadian citizen residing abroad sponsoring a spouse, common-law partner, conjugal partner or dependent child (provided that the dependent child does not have dependent children of their own) [R130(2)].

Sponsors who maintain a principal residence in Canada are not considered to be in violation of residency requirements if they:

• take short holidays or business trips outside Canada on a temporary basis
• have work arrangements that require them to be outside Canada for temporary finite periods of time, but return to live in Canada in between assignments (such as ship crew or seasonal workers)"

Now as before I can't attest to exactly how this will be interpreted but "short holidays or business trips" is pretty direct and straightforward. Yes, it is subjective. I also of course cannot say how often or at which stages this is checked, nor how strictly it will be enforced.

But the conclusion is pretty simple: go for anything longer that can be considered more than a short trip, there's a risk. I personally think the guideline of less than a month is such that not many people could argue the point. It's worth noting that there's no statement that multiple visits are not allowed, save that one should be careful that giving the impression one is not residing in Canada (i.e. only returning for what appears to be visits in Canada rather than the other way around).

As before, I cannot say that this 'has the force of law' but note that challenging the point (e.g. by appealing) is likely not practical in most cases (would take longer than eg reapplying).

After that, it's up to each PR to decide how they wish to proceed (whether they wish to risk it) but the guidelines are there and are official. Long trips abroad certainly can result in an application being cancelled.

 

[Naheulbeuck]

After that, it's up to each PR to decide how they wish to proceed (whether they wish to risk it) but the guidelines are there and are official. Long trips abroad certainly can result in an application being cancelled.

I totally agree with Armoured, as per my previous post, Living with the spouse during the process does not guarantee that the application will fail, but saying that it does not jeopardize it is plainly wrong.

I could not determine the applicant's status, and in this case the level of risk is quite dependent on status, for a PR, it is quite simple, I would not take any long vacation (again how long is hard to determine but less than a month seems like a good limit to me - no expert!) and also it would probably be fine to do a couple such vacations during the process, I would not go for much more than that.
It is also important to note this part of Armoured's quote:

Sponsors who maintain a principal residence in Canada are not considered to be in violation of residency requirements if they:

• take short holidays or business trips outside Canada on a temporary basis
• have work arrangements that require them to be outside Canada for temporary finite periods of time, but return to live in Canada in between assignments (such as ship crew or seasonal workers)"

It is crucial to maintain a principal residence in Canada during those vacations (meaning that if you want to risk long vacations, at the very least make sure you continue to maintain your principal residence in Canada).

In addition to the risk of jeopardizing the application, it invites scrutiny to the application, which could raise other issues and significantly delay the application (therefore defeating the purpose of trying to be together for some of the application process).

For a citizen it is quite different, it depends on more factors including the type of application. Not residing in Canada could have an impact as it could require demonstrating the intent to settle in Canada once PR is approved, which has been scrutinized lately and will require more work than people like to think in many situations (very dependent on people's situation but if no other ties to Canada then definitely something to avoid if possible).

Residency for this purpose, has really nothing to do with the Residency Obligation nor the residency for medical coverage.

 

[cjr]

In addition to the risk of jeopardizing the application, it invites scrutiny to the application, which could raise other issues and significantly delay the application (therefore defeating the purpose of trying to be together for some of the application process).

This is the main point.

One can debate the finer points of "residency" 'til the cows come home, and Kaibigan may or may not be particularly "moved" whether avoiding extended absences is "law or simply a common belief", but the fact remains that a prolonged absence is a great way to raise a red flag, and this process is quirky enough as it is.

Why push your luck?

 

[armoured]

Well folks, I have no horse in this race and I doubt this diversion is in any way germane to the OP's inquiry.
... I have posted as I have because, where, as here, I am told I am just plain wrong (rather than someone telling me they disagree), I feel honour bound to defend myself on the record, lest it be thought that I accept being put in my place.

So in fact, you do have a horse in this race, which is your wounded pride as a lawyer, rather than providing useful information or guidance that would be 'germane to the OP's inquiry.'

Thanks, that's well cleared up then.

I have no doubt that much of your legal analysis above is correct - I'm not a lawyer.

But the practical aspect - i.e. what the original inquiry was about - seems to still boil down to the same: PR sponsors can indeed have issues with their sponsorship if they go abroad too long; the legislation does not provide a specific definition of residency; failing that, applicants / sponsors can reasonably expect to be treated according to the operational guidelines (referenced above); and that, in the vast majority of cases, challenging such or getting meaningful redress would be costly, lengthy and almost certainly impractical.

Have you refuted those points in any meaningful way?

And no, you haven't really convinced me here - but not because I disagree with your analysis per se, nor the many ways in which the policy as it is currently implemented is vague and problematic on multiple levels; no, you haven't convinced me because I prett much thought that before. I just don't think it's very useful to those that are actually asking the question in this context.

It might well be useful in other contexts, though - have at it.

 

[armoured]

Applicants are expected to adhere to the law. The law is found in the statute and regulations. Nothing there would make one apprehensive about a PR applicant going abroad for more than a month. Aspects of the policy wording would seem to seek to impose some restrictions. Our courts expect people to be able to govern their affairs by laws that are clear. Nothing in the actual law here injuncts travel. While the policy appears to add a gloss to the words of the legislation, legal lore has it that persons should not be expected to go beyond the language of the legislation in order to comply.

This is all very well and good - as I said, overall I agree it's not desirable - but verbiage about 'legal lore' has little practical application for an applicant who gets caught up in this. If they've no practical possibility of appeal, it's not useful advice.

Unless, you know, you're volunteering to take any such cases pro bono. (And even then may not be a good idea, as would still amount to a large loss of time for a PR sponsor and the spouse.)

Even then, while there certainly is room to debate whether residency has been properly construed etc etc - can you say confidently that this would be a win?

This is where the rubber hits the road here: is it good and useful advice to suggest it doesn't happen? Or only infrequently?

(I happen to think it's also quite an exaggeration to state that this unduly limits the right of travel - the PR certainly can travel without limit; but there's no right to sponsor a spouse with which to argue that making this a condition of sponsorship amounts to an abrogation of the right to leave the country when one wants. When you add to that clear language that says short trips are fine and no quantitative limit on the number of such trips, it doesn't get there).

No surprise, I don't think it is useful. Perfectly fine for you to argue the other side of that, though.

 

[armoured]

A footnote to armoured,

Please do not construe my words here as any sort of attack on you. You have earned your stripes here and have contributed value beyond many and more than I'll manage. I admire many of your most erudite posts.

I was mildly offended by being branded as "wrong" when perhaps, simply "misguided" would have sufficed.

Didn't consider it an attack. I did find the "I don't really have a dog in this race [except for getting offended at the word wrong]" thing humorous, though.

I will warn on this subject though: we see a LOT of posts of people who want to depart for long periods and claim there is no restriction. If anyone wants to delve into admin law or even just posts and discussions here and decide they wish to take that risk, that's fine by me.

But I think most would be very poorly served by thinking there are no restrictions when they're actually out there and reasonably clear (albeit imprecise, but much of IRCC operations etc are).

 

[armoured]

Please do not construe my words here as any sort of attack on you. You have earned your stripes here and have contributed value beyond many and more than I'll manage. I admire many of your most erudite posts.

I was mildly offended by being branded as "wrong" when perhaps, simply "misguided" would have sufficed.

I neglected to say thank you for your kind words.

And also, any offence given was unintentional.

BTW, I also agree with your point that such cases seem to be relatively rare so would be hard to draw firm conclusions and/or mount detailed arguments about how it's applied in practice.

On a separate note/suggestion: one area where I think administrative law experience would be extremely useful is the IRCC practice of sending applications back to applicants after extremely long wait periods, effectively punishing applicants for what are often relatively minor errors in paperwork. See, for example, this case:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/my-application-returned-i’m-frustrated-and-angry-use-of-representative-form-not-signed-it’s-not-mandatory-i-waited-7-months.725139/

I would think that on some level this could be considered arbitrary and capricious treatment of applicants and right now, they have effectively zero recourse - losing considerable time in their family reunification efforts. This in an age when most IRCC applications (non-spousal) are on-line and things like electronic signatures or amendments to applicants are routinely accepted. (Not to mention that sending back by post without any kind of electronic notification is also ridiculous)

And because it's never 'entered into the system' (although actually not true, they clearly are scanned and info entered), this punitive approach can never be appealed.

Granted there are lots of other issues in IRCC processing, but this particular one seems so absolutely arbitrary and unnecessary - and open to abuse if (for example) IRCC used it to return applications and make their numbers look better. If you had time to apply your (obviously considerable) legal knowledge to this question, it would be a mitzvah. And judging from reports here, while this is not a frequent occurrence, it's a lot more common than issues about PR-sponsors not being resident in Canada throughout the sponsorship process.

 

[gayu2115]

Thank you so much all of you for your answers. I am really grateful for that.

Just to clarify a few points here - I am a Canadian permanent resident, not a citizen. I am sponsoring my spouse who is in India.

 

[sreekar545]

@armoured @Kaibigan Really interesting comment thread. Thanks.

For what it's worth, here is some info.

• I have a known a guy who is right now in India, who left after sponsorship approval some 10 months back (after this COVID rules came into play). His spousal sponsorship (1 wife + 1 kid) got approved without any issues. He is still in India. I know him directly and still in touch with him.
• I have known another guy who willingly went to India with his wife for her delivery of the first baby. He applied from there for that kid's PR and got it - all the while being in India.
• I have personally went to India for 6 months after I have applied outland and I got sponsorship approval recently and application seem to be moving. I have spoken to some immigration consultants and they have first hand experience with these situations, they are saying that it doesn't matter and that rule is enforced only if the PR was not living in Canada in the first place or in some other extreme cases, not when you go to home country in COVID.

As per @Kaibigan's line of discussion (to which I agree), when the law is subjective and situation is "unprecedented" like COVID, I "hope" they won't screw us. I was working remotely (software dev) and paying taxes etc. and hope they wouldn't have given me SA if they intend to reject it in next stage.

I was worried after seeing the same thing again and again on this forum about long trips. But the fact of the matter is - No one can really say anything because we don't have anyone on the forum who got rejected just because they went outside for more than a month or two.

I'm now in Canada, to be on the safe-side. Will update my progress on this thread to help others.