Nomenclature said:
I landed in Canada under Skilled Worker Category on 12 August 2012, along with my wife, who was primary applicant and a minor daughter. Due to sick health of my mother, we had to travel back to India the same year on 18th October. I have not re-entered Canada thereafter, but my wife and daughter have almost completed a year in Canada as they went back to Canada on 22 Jan 2014 and returned back to India on 16 October 2014. But I had to stay back in India again for the same reason told above.
My PR card bears an expiry date of 24 January 2018.
My queries:
1) Are there problems if I still am not able to re-enter Canada? and would I be allowed to arrive in Canada even if I land again, say 1 month before expiry of my PR card?
2) Is the residency obligation OR the expiry date mentioned on PR card more important?
3) Are there any chances to retain my PR status if I am not able to fulfill the residency obligation of 730 days but my wife does it so?
The answer to question 2 helps to explain the answer to question 1.
2) Is the residency obligation OR the expiry date mentioned on PR card more important?
PR status does
not depend on the validity or expiry date on a PR card.
But both are important.
The expiry date on the PR card is important because, for now, the Indian passport is not visa exempt, so for a PR from India to travel to Canada, the PR needs to have either a currently valid PR card or a PR Travel Document. Thus, once the PR card expires the PR abroad will need to apply for and obtain a PR Travel Document in order to board a flight destined for Canada. Such a PR, however, is presumed
not to have valid PR status, and thus must affirmatively prove valid status. Main element to prove, beyond proving identity, is having complied with the PR Residency Obligation. For a PR who has spent less than six months in Canada within the previous five years, the outcome of the PR TD application is predictable: denied, resulting in loss of PR status.
If the PR card has not yet expired, the PR will be allowed to board a flight to Canada and upon arriving at the POE in Canada is entitled to enter Canada as a PR.
This leads to question 1.
1) Are there problems if I still am not able to re-enter Canada? and would I be allowed to arrive in Canada even if I land again, say 1 month before expiry of my PR card?
As already noted, so long as the PR has a currently valid PR card (which of course also means the PR has not otherwise been adjudicated to have lost PR status), the PR will be allowed to board a flight destined for Canada and upon arriving at a POE in Canada is entitled to enter Canada as a PR.
But, everyone entering Canada, including a returning Canadian citizen, is subject to an examination at the POE. For the returning PR, and especially so for a PR who has been abroad for a long period of time, there may be questions about compliance with the PR Residency Obligation. Typically what can happen is that the PIL (Primary Inspection Line) officer identifies a potential concern or issue and refers the returning PR to secondary for an interview, and if the officer in secondary has concerns about compliance with the PR Residency Obligation, that officer will likely ask questions regarding residency and presence in Canada. If the secondary officer ascertains that the returning PR is not in compliance with the PR Residency Obligation, that officer can nonetheless waive the returning PR through based on the officer's discretion. Formally this would be based on H&C grounds, but apparently this often occurs more or less informally.
However, the extent of the breach of the PR RO can make, and probably usually does make, a big difference in how this goes.
Returning one month prior to the expiration of the PR card with more than four years of absence in the preceding five years would more likely result in the issuance of a 44(1) Report, for inadmissibility due to a breach of the PR RO, followed by the issuance of a Removal Order.
The returning PR is nonetheless, despite the issuance of a Removal Order, still entitled to enter Canada, and if the PR then timely makes an appeal of the Removal Order, the PR may remain in Canada as a PR, at the least until the appeal is decided. If the PR loses the appeal, PR status is lost.
For purposes of assessing compliance with the PR Residency Obligation (PR RO), the expiry date on the PR card is totally irrelevant.
For a PR in the first five year period after landing, the PR must be able to be present in Canada at least 730 days before the fifth year anniversary of the date of landing. Thus, for a PR in your situation, any time you approach a POE in Canada, seeking entry into Canada, if your compliance with the PR RO is questioned you would count all the days you have so far been in Canada plus all the days remaining until the fifth year anniversary of the day you landed (which apparently would be the 12th of August 2017), and if that total is at least 730 days you are in compliance. If that total is less than 730 days, you are in breach.
As of and after August 12, 2017, the question is simply how many days have you spent
in Canada in the five years immediately preceding the day the question is asked (typically the day you are arriving at a POE to enter Canada).
In the past, there are many reports of leniency for PRs in possession of a valid PR card, especially those still within the first five years after landing (Canada recognizes that completing the transition, to actually settle in Canada, can be difficult and is oft times delayed, so it has been fairly lenient . . . albeit the Federal Courts have emphasized that the 730 day requirement itself has a great deal of leniency built in, so for cases that reach the Federal Court it can be difficult to find leniency for a PR with less than 730 days in Canada). I doubt the leniency extends to a PR with less than six months in Canada, and is more likely limited to those who missed the cutoff by a little and for good reasons.
3) Are there any chances to retain my PR status if I am not able to fulfill the residency obligation of 730 days but my wife does it so?
Yes, one way is to persuade the respective decision-maker (CBSA officer at POE if you can still travel to Canada; or the respective officer at the Visa Office abroad when you apply for a PR Travel Document) that you have sufficient H & C grounds to, in effect, waive the breach of the PR Residency Obligation. Depending on all the attendant circumstances, for example, the health issues regarding your parent may be sufficient for this.
H&C cases can be tricky. Obtaining help from a Canadian immigration LAWYER (not a consultant)
would be prudent.
Obviously, the sooner you make the move to Canada the more likely your H&C grounds will be sufficient.
If you nonetheless lose PR status, due to the issuance of a Removal Order (which is upheld on appeal), or due to the denial of a PR Travel Document (upheld on appeal if appealed), you could then re-apply for PR status if you are still qualified. If your spouse has been living in Canada, is in compliance with the PR Residency Obligation, so long as she continues to live in Canada she could sponsor you for a family class, sponsored partner PR.
