SGPMan said:
I just got my PR card renewed. When I picked up the card I was asked by CIC how would I maintain my residency. I mentioned that my wife recently became a citizen and with that I will use the status of accompanying a citizen to maintain my residency. She mentioned that in this case, I should be accompanying her and not the way around. If she is only a housewife it will not count. Though I read in the earlier post it does not matter who accompanies who, as long as we can show we are living together and are a married couple that should suffice.
Can anyone confirm which is what in this scenario??
Thanks
I posted an in-depth response to this same query in another topic:
dpenabill said:
Older cases were split, CIC or CBSA (depending on who was conducting the residency examination) sometimes distinguishing cases in which the Canadian citizen was clearly abroad to accompany the PR. Even then, however, the majority of the cases were based on whether the couple was living together, with no regard for who would be said to be accompanying whom. Thus, even then, in the majority of cases, proof of qualified relationship (marriage certificate best), partner's Canadian citizenship (copy of passport), and proof of cohabitation (see family class sponsorships for full discussion of what constitutes proof of cohabitation) sufficed to qualify for the accompanying-a-Canadian-citizen-partner credit toward residency.
More recently (last few years), with very few and (in my view) distinguishable exceptions, the case law has consistently applied the latter approach, and the last time I checked (perhaps a couple months ago) this was also how the applicable CIC operational manual prescribes it should be . . . so until very recently, at the least, with distinguishable exceptions, the living abroad with Canadian citizen spouse (partner in qualified relationship) credit is available to a PR who PROVES:
-- qualified relationship
-- partner's Canadian citizenship, and
-- cohabitation
. . . [plus further analysis]
I did not cite the primary authority, which is the applicable statutory provision (section 28(2)(a)(ii)
IRPA) or the applicable regulation (Section 61(4) in the
Immigration and Refugee Protection Regulations). The latter (which I quote below) generally supports the observation made by
scylla:
scylla said:
They don't know what they are talking about. It doesn't matter who was accompanying whom provided you live together.
And I understand that CIC staff are generally not a reliable source of information about CIC's policies or practices, so it can be easy to dismiss such a comment . . . but in reference to CIC policy and practice regarding the PR Residency Obligation, there is no doubt about the trend at CIC in recent years, which has been to be increasingly tough and strict in the way it applies and enforces the PR RO, including how it interprets the applicable statutory and regulatory provisions. Note, in particular, the almost draconian interpretation and application of the provision giving credit for being employed by a Canadian business.
Thus, I am not so quick to totally dismiss the CIC staff comment. I don't think one can categorically characterize the source of this comment as someone who does not know what they are talking about. As I noted in my other post, there are older cases in which at least IAD did indeed reject the appeal of PRs denied a PR TD based on a strict analysis of who was accompanying whom . . . noting, though, that this approach was sternly criticized and rejected in at least three Federal Court decisions (reminder: Federal Court decisions have limited precedence, while tending to be a strong indication of the law and entitled to comity, technically their decisions are only binding in the particular case being decided -- and as I recall, there was at least one earlier Federal Court decision which did indeed base its decision on who was accompanying whom, based on an analysis of what "accompanying" means), subsequent to which I have seen no further
splitting-of-hairs (so to say) regarding who is accompanying whom . . .
except in three specific instances that I recall (and discuss in my post in the other topic).
Relative to the accompanying a partner credit in particular, however, and as I noted in the other topic, the forums are rife with examples of cases in which ". . . PRs are
pushing-the-envelope . . . that is, relying on a more or less technical application of this credit without really maintaining much of a connection to permanently residing in Canada."
It would not be the least bit surprising to see this government moving toward a tougher, more strict interpretation and application of this credit, as prescribed in section 28(2)(a)(ii)
IRPA. The statute states the credit for days a PR is accompanying a Canadian citizen abroad this way:
"they [the PR] are . . . outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent"
The
current Regulation (Section 61(4) in the
Immigration and Refugee Protection Regulations) states:
"For the purposes of [the provisions prescribing the credit for accompanying a citizen], a permanent resident is accompanying outside Canada a Canadian citizen . . . — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen"
I emphasized that this is the
current regulation because while both statutory provisions and regulations are always subject to change, changes to regulations do not require the approval of Parliament
so long as they are a legitimate exercise of the agency's authority and are consistent with the governing statutory provisions . . . so the process for changing a regulation is both easier and typically takes a lot less time than amending statutes.
But it should be emphasized that changes can also be made at the statutory level any given year.
It is too late for any changes to be made in the applicable statute before the election, and practically too late for the regulation to be amended before then as well. It has been the Harper government which has increasingly pursued tougher and more strict enforcement of the PR Residency Obligation, so whether the current policy is likely to change, toward a tougher approach, may depend on the outcome of this year's Federal election.
Regarding the
exceptions I allude to, from my other post:
dpenabill said:
. . . very isolated cases, in which proof of just being together has failed to be given credit toward the PR Residency Obligation. Two of the three that come to mind were cases where the PR was living and working abroad and the citizen-partner was living in Canada, and the citizen-partner went abroad to join the PR . . . no hint the PR had any established connection to Canada except having landed (at some point) and having a citizen-partner. Additionally, in these two cases, the citizen-partner was still spending at least a significant amount of time in Canada apart from the PR (the extent of time apart appearing to be contrary to the PR accompanying the citizen-partner). The third case that comes to mind involved a PR living abroad for a long while then marrying a Canadian citizen, and then two plus years later (or so, maybe it was longer, my recall is not clear) applying for a PR Travel Document and it was rejected based on distinguishing the citizen-partner's as accompanying the PR, not the PR accompanying the citizen-partner.
For now, and particularly for the ordinary case in which the PR and citizen spouse are living together abroad, there is probably no danger of CIC or CBSA engaging in assessing who is accompanying whom.
But the comment from CIC staff could be an indicator of a pending change in CIC's approach.
The current regulation tends to make it clear that "accompanying" means
"ordinarily residing with . . . " and thus generally speaking, living together suffices.
But this government tends to drill into provisions like this and it is feasible that the term "ordinarily residing with" in the regulation could be the basis for distinguishing some cases . . . noting, for example, that standard rules of construction deem no term in a provision to be superfluous, so something more than just "residing with" is implicated.
My sense is there may be some change on the horizon toward distinguishing situations in which a PR is working and living abroad while the rest of the family
"ordinarily" resides in Canada (especially if they are collecting particular benefits in Canada, maintaining health care coverage and so on . . . remember this year changes to IRPA were implemented expanding the information gathering and more particularly information
sharing with other government bodies) . . . and in these situations, periods of living together abroad, say five months here, six months there, might be at risk for
no credit.
This is largely guesswork . . . and I suspect it also depends on whether the Minister of CIC is a Tory come November, or a member of the NDP (I suppose the lesser party Liberals have some chance of forming a government as well) . . . but there are two trends in play, the trend to get tougher on PRs whose connection to a life in Canada is minimal, and the trend to crack down on families collecting benefits in Canada while the partner/parent is living and working outside Canada (not paying Canadian taxes).
In other words, it would be prudent for PRs living abroad, and who have been relying on credit toward the PR RO based on accompanying a Canadian citizen spouse, to pay attention to potential changes in CIC policies and practices regarding this.
