You would also find it very fascinating that the USCIS includes green card holders in its definition of foreign national
Whereas IRCC is VERY clear that it does not consider Canadian permanent residents as foreign nationals
Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE
- Thread starter dpenabill
- Start date
Within just the last several weeks there has been some resurgence of questions related to the credit toward Residency Obligation compliance for PRs accompanying a Canadian citizen spouse abroad, and in some of these the potential for a who-accompanied-whom question has been apparent. Given this an update of this topic seemed in order.
In response to one such discussion, in particular, I revisited and added some of the official sources including reports of actual cases, which is probably worth appending to this discussion (as the primary location for discussing developments related to this specific issue). So I have referenced and linked those sources below, more as a refresher of sorts, in an effort to keep this topic current.
But I also posted a summary of what we know about this issue, which I similarly think worth posting here, as reminder or otherwise keeping the commentary in this topic up-to-date.
SUMMARY as of mid-February 2019:
While I have NOT done an extensive accounting of recent decisions, it appears that the who-accompanied-whom question loomed large in 2017 and 2018 decisions, suggesting this is either the trend or perhaps already the prevailing approach . . . again, notwithstanding the policy described in ENF 23.
THAT SAID, as long as the couple were living together in Canada BEFORE the move abroad, AND they are ordinarily residing together, it otherwise appears that the credit will be allowed without regard to who-accompanied-whom. Whether this will continue to be how these cases are handled is difficult to predict.
The main factor appears to be whether the PR was settled and living in Canada before the move abroad, and if so, as long as the citizen spouse moves abroad around the same time, they get the credit. If in contrast the PR is settled abroad for a considerable period of time before the citizen spouse joins the PR abroad, there is a risk the credit will be DENIED . . . and if the PR has never really been settled in Canada, that risk appears to be rather high.
Revisiting the IAD decisions which reflect an increasing trend to consider the who-accompanied-whom question:
Again, perhaps the most salient and oft cited example of an actual case in which the who-accompanied-whom question resulted in being denied credit is the IAD decision in Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r
Diouf is cited in over a dozen other cases. Some of those disagree with the Diouf decision but more of them explicitly consider who-accompanied-whom in deciding whether the accompanying-a-Canadian-citizen-spouse credit is allowed.
For clarity, the facts in the Diouf case clearly show that in addition to some time actually spent in Canada, the PR in Diouf was living abroad with her Canadian citizen spouse for two and a half years immediately previous to an application for a PR Travel Document. The IAD stated:
Similarly in another decision which cited the Diouf decision, Khan, 2015 CanLII 99397 (CA IRB), http://canlii.ca/t/grz8t
In this case the IAD stated:
Other decisions citing Diouf and taking into consideration who-accompanied-whom include:
Khaira v Canada (Citizenship and Immigration), 2014 CanLII 95529 (CA IRB), http://canlii.ca/t/gksqq
Which cited Diouf and stated: "As stated by this panel in its decision in Chen, [6] the term “accompanying” in this context requires the subject, the appellant, to move to where the object, his spouse, has gone."
Dadash-zadeh v Canada (Citizenship and Immigration), 2018 CanLII 46499 (CA IRB), http://canlii.ca/t/hsldq
Which cited Diouf and stated: "I share the prevailing approach of the IAD that the test in subparagraph 28(2)(a)(ii) of the Act cannot be met merely by counting the number of days a permanent resident spends outside Canada in the company of a Canadian citizen who is their spouse or common-law partner without regard to who is accompanying whom."
Also see:
Han v Canada (Citizenship and Immigration), 2017 CanLII 14435 (CA IRB), http://canlii.ca/t/h2n4d
Caesar v Canada (Citizenship and Immigration), 2014 CanLII 99165 (CA IRB), http://canlii.ca/t/gnf7w
Rochecouste v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 60484 (CA IRB), http://canlii.ca/t/hst39
Kreidy v Canada (Citizenship and Immigration), 2017 CanLII 87454 (CA IRB), http://canlii.ca/t/hphj6
Dezfuli v Canada (Citizenship and Immigration), 2018 CanLII 89023 (CA IRB), http://canlii.ca/t/hv85q
Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), http://canlii.ca/t/hst3d
Contrary decisions (which reject consideration of who-accompanied-whom, and which I have previously cited and linked) include:
The Mustafa decision at http://canlii.ca/t/hs76z . .
Liong v Canada (Citizenship and Immigration), 2013 CanLII 98789 (CA IRB), http://canlii.ca/t/gj8wt
Auladin v Canada, 2015 CanLII 93049 http://canlii.ca/t/gndk9
(note that this decision relies more on a factual temporal nexus as, in effect, sidelining or overriding the who-accompanied-whom question)
In response to one such discussion, in particular, I revisited and added some of the official sources including reports of actual cases, which is probably worth appending to this discussion (as the primary location for discussing developments related to this specific issue). So I have referenced and linked those sources below, more as a refresher of sorts, in an effort to keep this topic current.
But I also posted a summary of what we know about this issue, which I similarly think worth posting here, as reminder or otherwise keeping the commentary in this topic up-to-date.
SUMMARY as of mid-February 2019:
While I have NOT done an extensive accounting of recent decisions, it appears that the who-accompanied-whom question loomed large in 2017 and 2018 decisions, suggesting this is either the trend or perhaps already the prevailing approach . . . again, notwithstanding the policy described in ENF 23.
THAT SAID, as long as the couple were living together in Canada BEFORE the move abroad, AND they are ordinarily residing together, it otherwise appears that the credit will be allowed without regard to who-accompanied-whom. Whether this will continue to be how these cases are handled is difficult to predict.
The main factor appears to be whether the PR was settled and living in Canada before the move abroad, and if so, as long as the citizen spouse moves abroad around the same time, they get the credit. If in contrast the PR is settled abroad for a considerable period of time before the citizen spouse joins the PR abroad, there is a risk the credit will be DENIED . . . and if the PR has never really been settled in Canada, that risk appears to be rather high.
Revisiting the IAD decisions which reflect an increasing trend to consider the who-accompanied-whom question:
Again, perhaps the most salient and oft cited example of an actual case in which the who-accompanied-whom question resulted in being denied credit is the IAD decision in Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r
Diouf is cited in over a dozen other cases. Some of those disagree with the Diouf decision but more of them explicitly consider who-accompanied-whom in deciding whether the accompanying-a-Canadian-citizen-spouse credit is allowed.
For clarity, the facts in the Diouf case clearly show that in addition to some time actually spent in Canada, the PR in Diouf was living abroad with her Canadian citizen spouse for two and a half years immediately previous to an application for a PR Travel Document. The IAD stated:
[16] From the viewpoint that permanent residents have to meet certain obligations, including being present in Canada for at least 730 days in a five-year period, surely the intention of Parliament was not to allow people who have been granted permanent residence to leave Canada and settle abroad and to allow those people who marry or are in a common-law relationship with a Canadian citizen to maintain or regain a status that would have otherwise been lost following an examination.
[17] Given the evidence on the record, the purpose of the Act and the meaning of the term “accompany,” the panel is not of the opinion that the appellant was outside Canada “accompanying” a Canadian citizen who is her spouse, as set out in subparagraph 28(2)(a)(ii) of the Act. The number of days that the appellant spent outside Canada while married to a Canadian citizen cannot be calculated as days she was present in Canada. The appellant did not demonstrate that she was present in Canada for at least 730 days in the five-year period, more specifically, from September 15, 2003, to September 15, 2008.
[17] Given the evidence on the record, the purpose of the Act and the meaning of the term “accompany,” the panel is not of the opinion that the appellant was outside Canada “accompanying” a Canadian citizen who is her spouse, as set out in subparagraph 28(2)(a)(ii) of the Act. The number of days that the appellant spent outside Canada while married to a Canadian citizen cannot be calculated as days she was present in Canada. The appellant did not demonstrate that she was present in Canada for at least 730 days in the five-year period, more specifically, from September 15, 2003, to September 15, 2008.
Similarly in another decision which cited the Diouf decision, Khan, 2015 CanLII 99397 (CA IRB), http://canlii.ca/t/grz8t
In this case the IAD stated:
Upon careful consideration of all the evidence, as well as the intended interpretation of the word “accompany” within the context of the legislation and I find that at no time did the Appellant “accompany” his spouse. It is his spouse who went to Bangladesh to “accompany” the Appellant. There is no temporal nexus between the two events that could be construed as the Appellant relocating to Bangladesh in order to be with his Canadian citizen spouse . . .
Other decisions citing Diouf and taking into consideration who-accompanied-whom include:
Khaira v Canada (Citizenship and Immigration), 2014 CanLII 95529 (CA IRB), http://canlii.ca/t/gksqq
Which cited Diouf and stated: "As stated by this panel in its decision in Chen, [6] the term “accompanying” in this context requires the subject, the appellant, to move to where the object, his spouse, has gone."
Dadash-zadeh v Canada (Citizenship and Immigration), 2018 CanLII 46499 (CA IRB), http://canlii.ca/t/hsldq
Which cited Diouf and stated: "I share the prevailing approach of the IAD that the test in subparagraph 28(2)(a)(ii) of the Act cannot be met merely by counting the number of days a permanent resident spends outside Canada in the company of a Canadian citizen who is their spouse or common-law partner without regard to who is accompanying whom."
Also see:
Han v Canada (Citizenship and Immigration), 2017 CanLII 14435 (CA IRB), http://canlii.ca/t/h2n4d
Caesar v Canada (Citizenship and Immigration), 2014 CanLII 99165 (CA IRB), http://canlii.ca/t/gnf7w
Rochecouste v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 60484 (CA IRB), http://canlii.ca/t/hst39
Kreidy v Canada (Citizenship and Immigration), 2017 CanLII 87454 (CA IRB), http://canlii.ca/t/hphj6
Dezfuli v Canada (Citizenship and Immigration), 2018 CanLII 89023 (CA IRB), http://canlii.ca/t/hv85q
Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB), http://canlii.ca/t/hst3d
Contrary decisions (which reject consideration of who-accompanied-whom, and which I have previously cited and linked) include:
The Mustafa decision at http://canlii.ca/t/hs76z . .
Liong v Canada (Citizenship and Immigration), 2013 CanLII 98789 (CA IRB), http://canlii.ca/t/gj8wt
Auladin v Canada, 2015 CanLII 93049 http://canlii.ca/t/gndk9
(note that this decision relies more on a factual temporal nexus as, in effect, sidelining or overriding the who-accompanied-whom question)
I wish that IRCC would "fix" ENF 23 in order to avoid the resulting confusion caused by Section 7.5 and bring it into sync with these recent decisions.
To a large extent what is stated in ENF 23 is how it works. Generally a PR living abroad with a Canadian citizen spouse will be allowed credit toward the PR Residency Obligation.
In particular, as I noted in my summary above, as long as the couple was living together in Canada BEFORE the move abroad, AND they are ordinarily residing together, it appears that the credit will be allowed without regard to who-accompanied-whom.
And at the risk of getting too wonky, the language in ENF 23 mangles the issue some, noting that while it says "it is not necessary to determine who is accompanying whom," it conditions this by stating it applies "as long as a permanent resident is accompanying a Canadian citizen." Which is to say, in effect, there is no need to determine who is accompanying whom as long as the PR is accompanying the citizen.
That is kind of like stating: there is no need to determine if qualification X is met as long as qualification X is met.
The question is what is necessary to show that "a PR is accompanying the citizen?"
Reminds me some of U.S. obscenity law. I forget the name of the famous judge (Justice Stewart?) who said something about not being able to define what obscenity is but "I know it when I see it."
And with some exceptions, nearly all the who-accompanied-whom decisions involve factual situations in which the PR rather blatantly has very little if much at all establishment in Canada. Their minimal establishment in Canada makes it rather obvious they did NOT accompany anyone abroad but were already abroad.
That is, it may not be easy to definitively say what is necessary to constitute accompanying a citizen, but it is fairly easy to recognize these situations as NOT a case where the PR is accompanying the citizen.
Thus, those most at risk for being denied the accompanying a citizen credit are those in situations where the PR is well-settled abroad for a considerable period of time before being joined by the Canadian citizen, and this is particularly so if the PR has never been settled and living in Canada.
Another scenario which seems at risk is relying on time spent together if the couple does not ordinarily reside together. That is, trying to meet the RO by adding up a patchwork of time periods spent visiting one another.
The problem in trying to revise the policy guidelines, it seems to me, is that to implement actually considering who-accompanied-whom in all accompanying a citizen cases would likely result in less predictability, more inconsistency in outcomes, more unjust results, and more confusion about what actually qualifies for the credit. In the meantime, in contrast, IRCC is not inclined to totally ignore these more blatant instances in which the PR has no substantial tie to Canada and is indefinitely settled abroad, cases in which it is easy to see the PR is not accompanying the citizen.
So there is some fuzziness about where and how the line is drawn. Happens.
Clarity is great. But clarity is not always achievable. Sometimes society and government must rely on flexible, even fluid rules, and strive to have judicious decision-makers administering them exercising fair discretion. And of course that always means there will be some unfair abuse of discretion, but hopefully not much, and nevertheless subject to the right of appeal pursuant to which a PR gets a de novo hearing before another tribunal.
It is also worth noting that we do not really know much about how these decisions are made by PoE officers, Visa Officers (deciding PR TD applications), or In-Canada local offices (deciding PR card applications and such). The decisions we see in appeals may not be all that representative of the decisions made at the PoE, Visa Office, or Local In-Canada offices. The IAD decisions are a glimpse into a significant number of actual cases, but this still leaves us short of really knowing what the more common approach is at the PoE or Visa Office. An occasional forum anecdotal report illuminates a bit . . . there was the report, not too long ago, from a PR given a hard time about this by a CBSA officer, for example. But these are too few and far between to draw definitive conclusions.
Below is my history:
Dec 2013: landed as PR (spouse sponsorship); my husband is a Canadian Citizen
May 2014: accompagned my husband to Country A (my husband is a United Nations Staff/international staff at P5 level, permanent United Nations Staff)
May 2015: accompagned my husband to Country B where my husband was posted
Jan/Feb 2016: visited Canada with my husband (had no problem at the aeroport)
March 2016: returned to Country B where my husband is posted (my husband have to stay in country B untill 2020: after that, he would be posted in Country C)
Dec 2018: returned to Canada (had no problem at the aeroport)
10 Jan 2019: I applied for an urgent renewal of PR card. I got a job at the same Country where my husband is posted; below is my timeframe
My application included:
- Copy of my husband citizehship ID (citizenship received in 1992)
- Copy of our marriage certificate
- Copy of all passeports used by my husband (he used 2 canadian passeports from 2013 to present)
- Residential certificate of my husband from Country A and B (from National Police of Country A and B)
- Employment certificate of my husband from the United Nations
Now almost 5 weeks under 'Decision Made' status (from January 16, 2019 to present/February 19, 2019); no email or letter from CIC or any others Canadian institution. Please, advise from your experience what did it means (it's normal or something is going one???). When I called and listening to the recorded message it said "no need for me to send additional informations; and also, no need for me to have an interview"....In one of the posting, someone said "Decision Made is 99,9% approval". In that context, it means my application is appoved at 99;9% ???
Thanks in advance for your help.
Dec 2013: landed as PR (spouse sponsorship); my husband is a Canadian Citizen
May 2014: accompagned my husband to Country A (my husband is a United Nations Staff/international staff at P5 level, permanent United Nations Staff)
May 2015: accompagned my husband to Country B where my husband was posted
Jan/Feb 2016: visited Canada with my husband (had no problem at the aeroport)
March 2016: returned to Country B where my husband is posted (my husband have to stay in country B untill 2020: after that, he would be posted in Country C)
Dec 2018: returned to Canada (had no problem at the aeroport)
10 Jan 2019: I applied for an urgent renewal of PR card. I got a job at the same Country where my husband is posted; below is my timeframe
- We received your application for a permanent resident card on January 11, 2019.
- We sent you correspondence acknowledging receipt of your application(s) on January 16, 2019.
- We started processing your application on January 16, 2019
My application included:
- Copy of my husband citizehship ID (citizenship received in 1992)
- Copy of our marriage certificate
- Copy of all passeports used by my husband (he used 2 canadian passeports from 2013 to present)
- Residential certificate of my husband from Country A and B (from National Police of Country A and B)
- Employment certificate of my husband from the United Nations
Now almost 5 weeks under 'Decision Made' status (from January 16, 2019 to present/February 19, 2019); no email or letter from CIC or any others Canadian institution. Please, advise from your experience what did it means (it's normal or something is going one???). When I called and listening to the recorded message it said "no need for me to send additional informations; and also, no need for me to have an interview"....In one of the posting, someone said "Decision Made is 99,9% approval". In that context, it means my application is appoved at 99;9% ???
Thanks in advance for your help.
ON its face this does NOT appear to be a situation in which the who-accompanied-whom question would be problematic. And while I doubt the 99.9% probability, I do not doubt that a Decision Made is almost certainly a favourable decision, which should result in the PR card being mailed to your address IN CANADA . . . or, possibly getting a notice to pick-up the card in person, which would involve a mostly perfunctory counter-interview. This is especially so when the DM is the same date as the date IRCC began processing the application.
But no one here can reliably provide personal advice or a personal opinion . . . even if they are an expert (I am NOT an expert). The range of personal, factual details which can affect how these things go is beyond the scope of what information can be shared in a venue like this.
Given the date of the DM you should be learning the outcome for sure somewhat soon. Meaning, most likely, either the PR card will arrive in the mail (at your Canadian residential address) or you will get a notice for an in-person pick-up.
Dear dpnenabill, thank you for your feedback. I try to call them….but, the line is too busy. I guest, they did not approved my urgent PR renewal request (I am still under the regular treatment of 48 days). What is strange is that, for almost 4 weeks I can see my two adresses (residential and postal) when I check my status. Last Thursday, they remove my residential adress...and they left only my postal adress (both adresses are canadian and at the same city; my postal adress is the same since 2013, year I became PR). Also, I try many times to check my status by CleGC….it did not work for me. I can only check via the regular format of CIC website. Any advise?? Thank you again for your help.
I am NO expert and I am especially NOT qualified to give personal advice. I cannot offer much at all beyond what is already posted.
I suppose it is possible the Decision Made is a decision about whether to expedite (urgent) processing, and if negative then the PRC application is still in process.
Otherwise, IRCC can have concerns or issues about addresses. Especially if it appears the PR is misrepresenting a friend or family's address as the PR's own residential address. But I cannot guess if there is any issue like that lurking in your situation.
Note that generally IRCC prefers that PRs living abroad utilize PR Travel Documents to travel to Canada and otherwise wait to they have actually returned to LIVE IN CANADA to apply for a new PR card.
Thanks, I just received a letter asking me to
Thanks dpenabill. I just received a long letter from them (I guest the regular format letter) to picked up in person my new PR card in Canada. They said I have 6 months delay to pick-up the card. They ask bunch of documentations which don't concern me...since I am accompaning my canadian husband). I am presently out of Canada; I have to apply for the PRTD??? The residential adress is actualy the place where I was during the time I did my application for renewal. Thanks again
This appears to be standard, especially when the PR appears likely to be abroad while the PRC application is in process.
If you do not have a currently valid PR card (if your previous card has expired for example), yes you need a PR Travel Document to board a flight destined to Canada. If you have status to enter the U.S., you could alternatively fly to the U.S. and then take land transportation to a PoE on the U.S./Canada border.
All appears OK. That said, some reminders may be worth considering:
-- PR Travel Document application -- Even though a new PRC has been issued, the Visa Office will still fully assess your eligibility for a PR TD . . . and remember that a PR abroad without a valid PRC is presumed to NOT have valid PR status. So be sure to provide both the information AND the documents for establishing eligibility, including in particular documents to establish the accompanying a Canadian citizen spouse credit (marriage certificate, proof of spouse's Canadian citizenship, copy of spouse's passports and other travel documents, evidence of residential address of you and your spouse for the last five years . . . see application form and checklist). The presumption that the PR does not have valid status is EASILY overcome (rebutted) for most PRs who are in compliance with the PR Residency Obligation, BUT it is nonetheless important to include the mandatory documentation.
To be clear: there is NO assumption the PR has valid status, and NO assumption the PR is in compliance with the RO, just because CPC-Sydney has made a positive decision and issued a new PRC.
-- Counter-Interview Attendant PR card pick-up -- As I previously observed, when a pick-up in person is required there is a counter-interview. This is essentially a perfunctory verification procedure. The main focus of the counter-interview is to verify the PR's identity, so these are usually very simple and short. But the scope of the interview can include verification of any information related to the PR's status and RO compliance. That is, while perfunctory, the counter-interview is nonetheless a further screening of the PR, so here too it is important to have the same documents you would submit to support the PRC and PR TD applications. And be prepared to answer questions related to the information submitted with the PRC application, including what supports the credit for accompanying a Canadian citizen spouse.
--Boilerplate Notices -- As you have discerned, the notice/letter from IRCC includes information or instructions that do not apply to you personally. This is typical. Typical bureaucratic policy and practice generally, not just IRCC. The notices are used for multiple situations involving individuals with varying requirements.
And these notices can indeed be confusing. Especially since the individual needs to figure out precisely what particular instructions apply to him or her (such as figuring out which of the listed documents to bring). At the least, you can use the checklist for PR TD applications or PRC applications to identify most of the documents you MIGHT need to present (even if an instruction to bring a particular document does apply specifically to the PR, that does not mean the IRCC agent/officer will actually ask to see it . . . but they might, so it is important to follow the instructions). In any event, carefully review the notice and make an effort to follow its instructions as best you can.
Thank you very much for your help. Actualy, they asked me to bring all the original documents that I have submitted of the PR application. I am planning to apply for the PRTD; do you think it's OK to put a copy of the letter with my application of PRTD (from your experience please advise) ??? Thanks again for your help
OK? Sure. Will it help? Probably not much. Obviously the Visa Office processing the PR TD application accesses the PR's GCMS and FOSS records, and thus the PRC application and its status will be readily visible to the Visa Office officer . . . and as I noted, the fact that a decision is made to issue a new PRC, and a new PRC has been issued, is largely NOT relevant. The Visa Office needs to make an independent determination of the PR's eligibility for a new card, including assessment of RO compliance as of the date the PR TD application is made.
Based on other anecdotal reports, it appears that more than a few PRs in similar circumstances feel it helps to include the letter . . . and it may at least offer some comforting assurance. BUT it is important to recognize, again, the PR TD application is processed independently and so it is important that the PR include all the information and proof as if no new PRC had been issued.
thank you again for your help. Sorry of asking many questions….Did the visa office has access - through the PR's GCMS and FOSS records - to all documentations I have send for my PR renewal application? I guest they have access to data from my renewal PR application??? Thank you so much
Reminder: I am NO expert. Your queries are getting into some very specific areas which are beyond general knowledge.
In particular, I do not know what IRCC officers see in an internal GCMS/FOSS check. But some of what is seen is obvious, such as the primary details about the PR, including vital statistics, date of landing, and such.
The other question is about what CAN be seen, as in seen in addition to what pops up in a routine GCMS check . . . I am sure they have ACCESS to see more than they see in the initial GCMS check . . . but I do not know what triggers taking action to access more, AND I do not anywhere near know the range of information readily accessible LET ALONE what can be accessed by way of further or more formal inquiries.
Generally best to assume they CAN see everything (recognizing that even if they usually do not have access, if grounds for an investigation are perceived the scope of that can be very extensive) . . . knowing that they most likely do NOT see everything or do NOT take time to LOOK at everything they can see.
Obviously, all the information submitted to the Visa Office should be consistent with any other information submitted to CBSA or IRCC. As long as your information is consistent, there is nothing to worry about in so far as they might access your information.
Thus, as to the particular details in your PRC application, my GUESS (emphasis on guess) is that they could see these if they ask to see it BUT they most likely will not. BUT again, I do not really know, not with much confidence.