Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE
- Thread starter dpenabill
- Start date
There is a point to be made, which I get to eventually . . . about credibility . . . but yeah, I take the long way round to getting there.
Some may have gleaned, over the course of years, that I focus quite a lot of attention on the role of credibility and its more indirect impact in many cases, and my impression that this is a subject badly understated and underestimated in the forum. It is probably the most common monkey-wrench-in-the-works when otherwise qualified applicants run into difficult non-routine processing and lengthy delays (often blamed, without good cause, on incompetent or neglectful civil servants). But credibility concerns can also be what indirectly triggers a process leading to loss of PR status.
In any event, taking the long way round . . .
That said, perhaps the object of this remark was Mr. Bhango, described as "once a rake and a rambling man, not above a little fiddling on his income tax returns," referred to in the Elfadul IAD decision but in reference to a significantly older Federal Court decision where Justice Harrington declined, back in 2007, to conclude that was sufficient to find that Mr. Bhango's claims (in regards to the genuineness of his marriage to his sponsor) lacked credibility. Let's be honest, you ain't much of a business person unless you have done "a little fiddling . . . on income tax returns."
Some will say once a lawyer always a liar, like the character in an unpublished novel (sitting on the floor in a closet in my home, something of a child born of wayward wandering in one's youth; the manuscript makes a good door stop, its author explains when asked why it has not been discarded since scores of agents and publishing houses rejected it more than a quarter century ago) was wont to repeat, in expressions of self-degradation, but in regards to weighing the credibility of IRCC clients and applicants in Canada it is not fair to infer once a liar always a liar, at least according to Justice Harrington, this IAD panel (J. Knapton), and quite a few other IAD panels who similarly found that previous deviations from the truth do not necessarily warrant discounting an individual's credibility in regards to other, unconnected matters, many of those IAD panels quoting Justice Harrington's characterization and conclusions in regards to Mr. Bhango.
That said, apart from the revenuer posse angle (worth a chuckle perhaps, or a shrug), and allowances for someone "once a rake and a rambling man, not above a little fiddling on his income tax returns," the credibility side of the equation in these cases is a key element in how things go, how things turn out.
In another topic, in regards to other PR RO questions and related issues, I have been fumbling for the words to explain what a difference tripping points make. That effort is in regards to somewhat more complicated situations. But one of the more common tripping point factors is credibility, and the credibility factor is not so complicated. Important, oft times critical, but not that complicated.
In the referenced cases here, for Elfadul and Bhango, their credibility was being addressed relative to justifying negative decisions. And while the reasons for questioning their credibility, in those cases, was not sufficient to justify the negative decisions there, compromised credibility can indeed be the basis for a negative outcome. So that is important. And it is important to remember that an officer's negative decision based on compromised credibility does not depend on determining there was misrepresentation. Misrepresentation itself is a stand alone ground for denying many types of applications (case I often reference is the one where a citizenship applicant used an Ontario address in the application, provided by a consultant to facilitate applying where processing times were apparently much faster, but was purportedly actually living in Montreal, and that misrepresentation alone was grounds to deny his application). But reasons for discounting an applicant's credibility short of supporting a claim of misrepresentation can support conclusions otherwise justifying a negative outcome.
For Elfadul, for example, the question was whether his assertions, his testimony in effect, regarding his intention to establish residence in Canada (actual residence, not just status), was sufficiently credible to establish he had the requisite intent. Misrepresentation was not even mentioned.
For Bhango, similarly, the question was whether his evidence as to the genuineness of the marriage was sufficiently credible, to establish he was in a qualified relationship, and likewise misrepresentation was not even mentioned.
BUT . . . AND this is "the point" of these observations, a PR's credibility can loom large and have a big impact without it being the focus, without it even being brought up.
to be continued . . .
Some may have gleaned, over the course of years, that I focus quite a lot of attention on the role of credibility and its more indirect impact in many cases, and my impression that this is a subject badly understated and underestimated in the forum. It is probably the most common monkey-wrench-in-the-works when otherwise qualified applicants run into difficult non-routine processing and lengthy delays (often blamed, without good cause, on incompetent or neglectful civil servants). But credibility concerns can also be what indirectly triggers a process leading to loss of PR status.
In any event, taking the long way round . . .
I suspect the object of this remark was the subject of the IAD decision I discussed, cited, and linked, the the Elfadul IAD decision, 2019 CanLII 145852, https://canlii.ca/t/jdm4x and the reference to the Minister's counsel argument that the visa officer's decision should be upheld (effectively refuting any claim that case is about a rogue decision by a solitary untrained visa officer divorced from law) in part because Elfadul apparently had made "inaccurate income statements on his Canadian taxes" and thus his credibility (in regards to evidence of intent to come to Canada to establish in fact permanent residence) should be discounted. Since anyone who files income tax returns inevitably makes mistakes, and has made "inaccurate income statements on [their] Canadian taxes" (anyone certain they have never made such mistakes is making the bigger mistake of overlooking they make mistakes), without knowing more there is no reason to suspect substantive cause to investigate Elfadul for tax improprieties; the Minister's counsel, nonetheless, obviously knew more and was in a position to make the appropriate judgment call in that regard.
That said, perhaps the object of this remark was Mr. Bhango, described as "once a rake and a rambling man, not above a little fiddling on his income tax returns," referred to in the Elfadul IAD decision but in reference to a significantly older Federal Court decision where Justice Harrington declined, back in 2007, to conclude that was sufficient to find that Mr. Bhango's claims (in regards to the genuineness of his marriage to his sponsor) lacked credibility. Let's be honest, you ain't much of a business person unless you have done "a little fiddling . . . on income tax returns."
Some will say once a lawyer always a liar, like the character in an unpublished novel (sitting on the floor in a closet in my home, something of a child born of wayward wandering in one's youth; the manuscript makes a good door stop, its author explains when asked why it has not been discarded since scores of agents and publishing houses rejected it more than a quarter century ago) was wont to repeat, in expressions of self-degradation, but in regards to weighing the credibility of IRCC clients and applicants in Canada it is not fair to infer once a liar always a liar, at least according to Justice Harrington, this IAD panel (J. Knapton), and quite a few other IAD panels who similarly found that previous deviations from the truth do not necessarily warrant discounting an individual's credibility in regards to other, unconnected matters, many of those IAD panels quoting Justice Harrington's characterization and conclusions in regards to Mr. Bhango.
That said, apart from the revenuer posse angle (worth a chuckle perhaps, or a shrug), and allowances for someone "once a rake and a rambling man, not above a little fiddling on his income tax returns," the credibility side of the equation in these cases is a key element in how things go, how things turn out.
In another topic, in regards to other PR RO questions and related issues, I have been fumbling for the words to explain what a difference tripping points make. That effort is in regards to somewhat more complicated situations. But one of the more common tripping point factors is credibility, and the credibility factor is not so complicated. Important, oft times critical, but not that complicated.
In the referenced cases here, for Elfadul and Bhango, their credibility was being addressed relative to justifying negative decisions. And while the reasons for questioning their credibility, in those cases, was not sufficient to justify the negative decisions there, compromised credibility can indeed be the basis for a negative outcome. So that is important. And it is important to remember that an officer's negative decision based on compromised credibility does not depend on determining there was misrepresentation. Misrepresentation itself is a stand alone ground for denying many types of applications (case I often reference is the one where a citizenship applicant used an Ontario address in the application, provided by a consultant to facilitate applying where processing times were apparently much faster, but was purportedly actually living in Montreal, and that misrepresentation alone was grounds to deny his application). But reasons for discounting an applicant's credibility short of supporting a claim of misrepresentation can support conclusions otherwise justifying a negative outcome.
For Elfadul, for example, the question was whether his assertions, his testimony in effect, regarding his intention to establish residence in Canada (actual residence, not just status), was sufficiently credible to establish he had the requisite intent. Misrepresentation was not even mentioned.
For Bhango, similarly, the question was whether his evidence as to the genuineness of the marriage was sufficiently credible, to establish he was in a qualified relationship, and likewise misrepresentation was not even mentioned.
BUT . . . AND this is "the point" of these observations, a PR's credibility can loom large and have a big impact without it being the focus, without it even being brought up.
to be continued . . .
As noted in the previous post, "the point" of these observations is to highlight that a PR's credibility can loom large and have a big impact without it being the focus, without it even being brought up.
Which brings this around, finally, to the subject of this topic and If, When, Why, How, who-accompanied-whom matters.
This is the subject of recent observations made in response to a query by a PR who is living with a Canadian citizen spouse abroad and planning to make an application for a new PR card, a PR who never was living in Canada, and thus a scenario in which IRCC could, potentially, deny RO credit for time abroad "accompanying" the PR's Canadian citizen spouse.
But we do not know much about if, when, or why, or for whom the who-accompanied-whom issue will actually come up. It still appears, with some isolated exceptions, to only affect PRs in cases involving the most blatant little or no tangible connection to Canada scenarios. But the number of known cases remains small enough it readily appears likely that many other similarly situated PRs do not run into this issue.
Why some and not others? We are not in a position to solve this, not yet anyway.
But, finally bringing the separate elements of these observations together, there is no doubt that CREDIBILITY concerns factor into who runs into the who-accompanied-whom question.
This is about tipping points. A subject too often underestimated if not overtly neglected. A big subject in itself in regards to a range of PR obligations, admissibility issues, and application processing generally.
This includes incremental tipping points . . . like an officer's decision to ask another question, and then a more probing question.
The fact that Mr. Bhango was "once a rake and a rambling man, not above a little fiddling on his income tax returns," did not mean he was lying about his marital relationship with his sponsor. But when an officer sees signs, virtually any signs, that there is reason to question an applicant's credibility, there is a substantial risk that triggers further inquiry, potential skepticism, and the prospect of probing into issues most applicants do not encounter. Including questions about who-accompanied-whom when the PR relying on this credit was sponsored by a PR spouse abroad who, for their part, does not follow through relocating to Canada . . . the latter might never even be mentioned, let alone any overt accusation of misrepresentation made, but it can be a significant tipping point factor in an officer's decision to question and probe further, including into the who-accompanied-whom issue.
Some here will dismiss the significance of appearing to play games. Their choice. Those who follow that course, however, do so at their peril.
Some here disparage the competency of visa and immigration officers, but the prudent and wise recognize CBSA and IRCC personnel are generally better trained and more experienced than portrayed by their naysayers, and they mostly get it, having seen hundreds of cases and just about every angle played.
It is no mystery, behind meeting the requirements and properly completing applications, credibility is the next biggest factor in how things go,
But here's the rub, the big take-away:
It is one thing for a PR's compromised credibility to negatively affect the process. For many that is bad enough. For Mr. Bhango, whose application for PR was made in 2004 and finally just barely being remanded for another officer to handle in late 2007, three plus years later, resulting in more than the inconvenience of an appeal but a very long delay as well. Similarly for Mr. Elfadul (a heart surgeon), application remanded for another visa officer to handle nearly three years after he submitted the application.
And perhaps similarly for scores of those PRs with PR card applications bogged down well past when routinely processed applications are finalized, and new PR cards delivered (notwithstanding the chorus of protests otherwise, largely blaming IRCC), for more than a few quite likely there are credibility questions lurking and having a detrimental impact on how long it is taking.
But for those PRs in situations with underlying substantive risks, a trigger such as cause to question their credibility can be the tripping point that makes the difference between keeping and losing PR status. It is readily apparent, for example, that which PRs in breach of the RO are Reported and issued a Departure Order, upon their arrival at a Canadian PoE, very often depends on whether the PIL officer casually waives them through, no serious questions about RO probed (even though many are more or less clearly not compliant with the RO) or something triggers more probing questions, leading to a more formal RO compliance examination in Secondary. Hard to document, but the anecdotal reporting compared to actual cases reported in IAD decisions generally suggests the key fork in the road is indeed whether the PR in breach is casually waived through or formally examined in Secondary. Make no mistake, appearing evasive, uncooperative, or to be playing games, can be the tripping point, what triggers the referral to a more probing examination in Secondary, and that leading to where that leads, not the preferred outcome.
Likewise here, in regards to the who-accompanied-whom issue, hard to forecast who may be more at risk (in situations where who-accompanied-whom could make a difference). Will the appearance of playing games in the original sponsored PR application (sponsor presenting plan to relocate to Canada but it appears there was no real intent to do that) trigger a more probing inquiry leading to challenging who-accompanied-whom? That is far from certain, but nonetheless a rather salient risk.
Which brings this around, finally, to the subject of this topic and If, When, Why, How, who-accompanied-whom matters.
This is the subject of recent observations made in response to a query by a PR who is living with a Canadian citizen spouse abroad and planning to make an application for a new PR card, a PR who never was living in Canada, and thus a scenario in which IRCC could, potentially, deny RO credit for time abroad "accompanying" the PR's Canadian citizen spouse.
But we do not know much about if, when, or why, or for whom the who-accompanied-whom issue will actually come up. It still appears, with some isolated exceptions, to only affect PRs in cases involving the most blatant little or no tangible connection to Canada scenarios. But the number of known cases remains small enough it readily appears likely that many other similarly situated PRs do not run into this issue.
Why some and not others? We are not in a position to solve this, not yet anyway.
But, finally bringing the separate elements of these observations together, there is no doubt that CREDIBILITY concerns factor into who runs into the who-accompanied-whom question.
This is about tipping points. A subject too often underestimated if not overtly neglected. A big subject in itself in regards to a range of PR obligations, admissibility issues, and application processing generally.
This includes incremental tipping points . . . like an officer's decision to ask another question, and then a more probing question.
The fact that Mr. Bhango was "once a rake and a rambling man, not above a little fiddling on his income tax returns," did not mean he was lying about his marital relationship with his sponsor. But when an officer sees signs, virtually any signs, that there is reason to question an applicant's credibility, there is a substantial risk that triggers further inquiry, potential skepticism, and the prospect of probing into issues most applicants do not encounter. Including questions about who-accompanied-whom when the PR relying on this credit was sponsored by a PR spouse abroad who, for their part, does not follow through relocating to Canada . . . the latter might never even be mentioned, let alone any overt accusation of misrepresentation made, but it can be a significant tipping point factor in an officer's decision to question and probe further, including into the who-accompanied-whom issue.
Some here will dismiss the significance of appearing to play games. Their choice. Those who follow that course, however, do so at their peril.
Some here disparage the competency of visa and immigration officers, but the prudent and wise recognize CBSA and IRCC personnel are generally better trained and more experienced than portrayed by their naysayers, and they mostly get it, having seen hundreds of cases and just about every angle played.
It is no mystery, behind meeting the requirements and properly completing applications, credibility is the next biggest factor in how things go,
But here's the rub, the big take-away:
It is one thing for a PR's compromised credibility to negatively affect the process. For many that is bad enough. For Mr. Bhango, whose application for PR was made in 2004 and finally just barely being remanded for another officer to handle in late 2007, three plus years later, resulting in more than the inconvenience of an appeal but a very long delay as well. Similarly for Mr. Elfadul (a heart surgeon), application remanded for another visa officer to handle nearly three years after he submitted the application.
And perhaps similarly for scores of those PRs with PR card applications bogged down well past when routinely processed applications are finalized, and new PR cards delivered (notwithstanding the chorus of protests otherwise, largely blaming IRCC), for more than a few quite likely there are credibility questions lurking and having a detrimental impact on how long it is taking.
But for those PRs in situations with underlying substantive risks, a trigger such as cause to question their credibility can be the tripping point that makes the difference between keeping and losing PR status. It is readily apparent, for example, that which PRs in breach of the RO are Reported and issued a Departure Order, upon their arrival at a Canadian PoE, very often depends on whether the PIL officer casually waives them through, no serious questions about RO probed (even though many are more or less clearly not compliant with the RO) or something triggers more probing questions, leading to a more formal RO compliance examination in Secondary. Hard to document, but the anecdotal reporting compared to actual cases reported in IAD decisions generally suggests the key fork in the road is indeed whether the PR in breach is casually waived through or formally examined in Secondary. Make no mistake, appearing evasive, uncooperative, or to be playing games, can be the tripping point, what triggers the referral to a more probing examination in Secondary, and that leading to where that leads, not the preferred outcome.
Likewise here, in regards to the who-accompanied-whom issue, hard to forecast who may be more at risk (in situations where who-accompanied-whom could make a difference). Will the appearance of playing games in the original sponsored PR application (sponsor presenting plan to relocate to Canada but it appears there was no real intent to do that) trigger a more probing inquiry leading to challenging who-accompanied-whom? That is far from certain, but nonetheless a rather salient risk.
Quoting from here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/renouncing-pr-status.766774/#post-10070325
And this has been happening even in regards to circumstances with no indication at all that there might be a who-accompanied-whom issue. Which issue, even when not at issue, I suspect underlies most of those erroneous assertions.
I hope that is not the "common response" here. But now I am guessing (your post triggering this) that was also underlying an exchange I recently had with @canuck78 here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/re-entering-canada-by-us-land-border-without-pr-card.597203/page-4#post-10068290
even though there was nothing in the scenario subject of the query there to suggest any who-accompanied-whom issue. Your comment reminds one of the somewhat absurd statement there cautioning (erroneously, way so) that the Citizen's PR spouse would "NOT LIKELY" get RO credit ". . . in case they do consider moving out of Canada again." When of course under the current law and its application, if the Canadian citizen and the citizen's PR spouse later move out of Canada, together of course, the opposite is the case: the PR will most likely (closer to almost certainly), get RO credit for the time they are together abroad.
We are well aware of the EXCEPTIONS, and what those exceptions are based on, the more or less typical (and typically egregious) scenarios triggering those cases, and within the scope of THOSE PARTICULAR cases the divergences in views regarding how the accompanying-citizen-spouse credit is applied, as has been extensively discussed, with citations and links for dozens of primary sources, in this topic.
But those are indeed EXCEPTIONS. In contrast, the governing official regulation, R61(4) IRPR, continues to provide that, for purposes of this credit:
That's the current law. For some reason it is not often cited in many of the cases. Even when referenced, as it was in one of the most recent cases regarding this subject, it tends to be cited as a statement in the applicable enforcement manual ENF 23, which is just a guide and is not binding. But the Regulation is binding. Again this is R61(4) IRPR (should link).
The case I am referring to, here, is Wu v Canada, 2020 CanLII 68406 (CA IRB), https://canlii.ca/t/j9q9x
It is troubling that the Minister argued that the word "accompany" is not defined in the Act (IRPA) or the Regulations (IRPR), when in fact R61(4) rather clearly states, again, that ". . . a permanent resident is accompanying outside Canada a Canadian citizen . . . on each day that the permanent resident is ordinarily residing with the Canadian citizen." Technically, sure, that is not a "definition," but it clearly delineates what constitutes "accompanying," and that is "ordinarily residing" together.
Nonetheless there are, as one would expect, some IAD members clearly citing R61(4) in these cases. I don't think I have previously cited or linked Raheja v Canada, 2017 CanLII 36612, https://canlii.ca/t/h47r3 but it is an IAD decision that directly, simply, cited Regulation 61(4) . . . and commented "It is unclear why the refusal was made" in that case.
A case I have previously cited Cherrak v Canada, 2018 CanLII 61861, https://canlii.ca/t/hsw3f was revisited, due to errors in "calculations." Net outcome second time around largely the same, reiterating that "it is not necessary to clarify who is accompanying whom when a Canadian citizen is accompanying a spouse, who is a permanent resident, abroad." The second rendition is here: Cherrak v Canada, 2019 CanLII 128440 https://canlii.ca/t/j4wdl
NONE of which, it warrants CAUTIONING, diminishes the POTENTIAL importance of the who-accompanied-whom question in those particular circumstances in which, for this or that reason, cause to deny this RO credit is seized upon. Again, these are EXCEPTIONS. And there is typically something quite obviously egregious in the case triggering this. The parameters of this have been wrestled with, addressed, discussed, and to a large extent illuminated in the many pages of this topic, without reaching any clear demarcation, but nonetheless almost no indication this will have an impact on the typical Citizen-PR couple who have temporarily relocated abroad.
There was no hint there (unless a post was deleted that I did not see) of any so-called who-accompanied-whom issue, but I think I know where you are coming from in that the forum has seen quite a number of responses to queries involving a PR-living-with-Canadian-citizen-spouse-abroad with posts more or less cautioning that the time abroad together will NOT count toward RO compliance.
And this has been happening even in regards to circumstances with no indication at all that there might be a who-accompanied-whom issue. Which issue, even when not at issue, I suspect underlies most of those erroneous assertions.
I hope that is not the "common response" here. But now I am guessing (your post triggering this) that was also underlying an exchange I recently had with @canuck78 here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/re-entering-canada-by-us-land-border-without-pr-card.597203/page-4#post-10068290
even though there was nothing in the scenario subject of the query there to suggest any who-accompanied-whom issue. Your comment reminds one of the somewhat absurd statement there cautioning (erroneously, way so) that the Citizen's PR spouse would "NOT LIKELY" get RO credit ". . . in case they do consider moving out of Canada again." When of course under the current law and its application, if the Canadian citizen and the citizen's PR spouse later move out of Canada, together of course, the opposite is the case: the PR will most likely (closer to almost certainly), get RO credit for the time they are together abroad.
We are well aware of the EXCEPTIONS, and what those exceptions are based on, the more or less typical (and typically egregious) scenarios triggering those cases, and within the scope of THOSE PARTICULAR cases the divergences in views regarding how the accompanying-citizen-spouse credit is applied, as has been extensively discussed, with citations and links for dozens of primary sources, in this topic.
But those are indeed EXCEPTIONS. In contrast, the governing official regulation, R61(4) IRPR, continues to provide that, for purposes of this credit:
". . . a permanent resident is accompanying outside Canada a Canadian citizen . . . on each day that the permanent resident is ordinarily residing with the Canadian citizen."
That's the current law. For some reason it is not often cited in many of the cases. Even when referenced, as it was in one of the most recent cases regarding this subject, it tends to be cited as a statement in the applicable enforcement manual ENF 23, which is just a guide and is not binding. But the Regulation is binding. Again this is R61(4) IRPR (should link).
The case I am referring to, here, is Wu v Canada, 2020 CanLII 68406 (CA IRB), https://canlii.ca/t/j9q9x
It is troubling that the Minister argued that the word "accompany" is not defined in the Act (IRPA) or the Regulations (IRPR), when in fact R61(4) rather clearly states, again, that ". . . a permanent resident is accompanying outside Canada a Canadian citizen . . . on each day that the permanent resident is ordinarily residing with the Canadian citizen." Technically, sure, that is not a "definition," but it clearly delineates what constitutes "accompanying," and that is "ordinarily residing" together.
Nonetheless there are, as one would expect, some IAD members clearly citing R61(4) in these cases. I don't think I have previously cited or linked Raheja v Canada, 2017 CanLII 36612, https://canlii.ca/t/h47r3 but it is an IAD decision that directly, simply, cited Regulation 61(4) . . . and commented "It is unclear why the refusal was made" in that case.
A case I have previously cited Cherrak v Canada, 2018 CanLII 61861, https://canlii.ca/t/hsw3f was revisited, due to errors in "calculations." Net outcome second time around largely the same, reiterating that "it is not necessary to clarify who is accompanying whom when a Canadian citizen is accompanying a spouse, who is a permanent resident, abroad." The second rendition is here: Cherrak v Canada, 2019 CanLII 128440 https://canlii.ca/t/j4wdl
NONE of which, it warrants CAUTIONING, diminishes the POTENTIAL importance of the who-accompanied-whom question in those particular circumstances in which, for this or that reason, cause to deny this RO credit is seized upon. Again, these are EXCEPTIONS. And there is typically something quite obviously egregious in the case triggering this. The parameters of this have been wrestled with, addressed, discussed, and to a large extent illuminated in the many pages of this topic, without reaching any clear demarcation, but nonetheless almost no indication this will have an impact on the typical Citizen-PR couple who have temporarily relocated abroad.
Did you see this one @dpenabill? I recognize that the decisions are not binding for other cases but this is another one where it shows that it is not as clear as some state [I am not referring to a specific xomment] about the need for the PR to follow the citizen in order for the time to qualify.
Rafuson v Canada (Citizenship and Immigration), 2022 CanLII 43416 (CA IRB), <https://canlii.ca/t/jpf7k>.
Rafuson v Canada (Citizenship and Immigration), 2022 CanLII 43416 (CA IRB), <https://canlii.ca/t/jpf7k>.
I had not seen this one. As always, thank you for bringing it to the forum's attention. It is worth repeating the citation: Rafuson v Canada, 2022 CanLII 43416, https://canlii.ca/t/jpf7k
It is worth noting that it is largely an application of a decision I have referenced and linked often: Mustafa v Canada, 2018 CanLII 47219 see http://canlii.ca/t/hs76z (going all the way back to posts I made in this topic soon after starting it, in August 2018).
It is a good illustration of one of the approaches to interpreting and applying the accompanying-Canadian-citizen-spouse credit, and consistent with what I have perceived to still be the primary or most common approach: days ordinarily residing together abroad get credit.
What is a little unusual about this particular IAD decision is the favourable outcome notwithstanding the extent to which the PR has not been in Canada, not at all for the previous fifteen years, after spending "less than two weeks" in Canada when he landed back in 2006. This background fits the more extreme scenarios in which we have seen the who-accompanied-whom question arise and preclude credit despite the couple living together abroad.
BUT make no mistake, for Eduardo Rafuson the who-accompanied-whom question did arise and is what led to the denial of his application for a PR Travel Document, and notwithstanding the IAD panel's decision, the Minister's representative argued for the application of the who-accompanied-whom question to uphold the visa office decision to terminate Eduardo Rafuson's PR status. Rafuson's success in the appeal offers very little assurance for other PRs abroad in similar or somewhat similar situations which might trigger the who-accompanied-whom question. That is, despite the outcome of this appeal, it is readily apparent that the who-accompanied-whom question can and still does arise, and sometimes leads to decisions terminating a PR's status despite the couple's cohabitation for at least two years in the relevant five, thereby leaving such PRs to the mercy of the IAD in an appeal.
What this IAD panel (Craig Costantino) did, just as the panel (Catherine Gaudet) did in the Mustafa case, is give substantial consideration to the language in IRPR (the Regulations) section 61(4), which states that for the purposes of the provision giving credit for accompanying a citizen spouse, "a permanent resident is accompanying outside Canada a Canadian citizen . . . on each day that the permanent resident is ordinarily residing with the Canadian citizen . . . " Other IAD panels have observed that this does not "define" what "accompanying" means, which is an example of how much I am NOT an expert, because frankly I do not understand that reasoning.
Despite the arguments made by the Minister's representatives in these proceedings to my view it appears the topography has not changed much over the last four years, since I started this topic. There appears to be a minimal to very low risk that a who-accompanied-whom question will arise for a couple who travel together, in going abroad, regardless of the reason for going abroad. But it nonetheless appears there is a continuing risk for a PR with minimal ties in Canada who is more or less joined abroad by their Canadian citizen spouse. Those who are among the latter would be prudent to have citations to both this decision and the Mustafa decision at hand if and when they are subject to a RO compliance examination. In this regard, however, it might also be noteworthy that in Rafuson's case the visa office summarily denied the credit, denying the PR TD application, and did not provide Rafuson an opportunity to address the visa office's concerns.
Hopefully the law will be clarified because I personally don’t think that the original intent of the law was to allow people who have never spent any time in Canada to retain their permanent residency. We have seen that IRCC has taken steps to make sure spouses living abroad who are sponsoring their spouses have proof that they will be relocating permanently to Canada once they have PR.
I thought the comment in this recently published decision was interesting because I don’t recall reading it in any previous decisions. While the original determination was made that the PR was not compliant with RO because they were not accompanying the Citizen, on appeal:
[5] The Minister does not contest that the exception set out in 28(2)(ii) can apply regardless of who accompanies whom abroad. As such, the Panel will not address this issue.
Baladi v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 75948 (CA IRB), <https://canlii.ca/t/jrkwc>.
[5] The Minister does not contest that the exception set out in 28(2)(ii) can apply regardless of who accompanies whom abroad. As such, the Panel will not address this issue.
Baladi v Canada (Public Safety and Emergency Preparedness), 2022 CanLII 75948 (CA IRB), <https://canlii.ca/t/jrkwc>.
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The government really needs to clarify the issue in the Act especially given that remote work is much more common practice so this issue may become much more common. As pointed out in the arguments, theoretically based on the Mustafa judgement, anyone can now land and return to their home country and be compliant with their RO as long as their spouse relocates to their home country and lives with them for 730 days out of 5 years. IRCC has been requiring more proof that couples will relocate to Canada after sponsorship so there seems to be an attempt to prevent couples from landing and then not settling in Canada but this judgement would overrule any attempts by the government to require couples to relocate to Canada. Unless clarified the Mustafa case will be used to challenge any refusal. Canada’s RO requirements are minimal and enforcement is also very relaxed but I think most in Canada would agree that the goal of sponsorship process is to have a spouse or common law be able to join you to live in Canada.
“However, the Minister's counsel argues that if one follows this analysis, a PR could theoretically meet their residency obligation without ever setting foot in Canada, as long as the Canadian spouse ensured that they were “ordinarily resident” with the PR for 730 days in a five year period. The Minister's counsel finds this to be contrary to the purposes of familial and social integration within Canada as outlined in the Act, and while I understand how this seems to be somewhat contradictory of concept of permanent residence, the evidence above from the Legislative history suggests that Parliament intended to provide some flexibility to citizens with respect to how these obligations can be met. I note as well that this exception is not extended to permanent residents, but only to citizens, suggesting that Parliament intended to safeguard relationships of citizens and PR’s who find themselves in this situation. The legislative context analysis suggests the approach pressed upon me by the appellant is the one that Parliament intended.“
For sure this is "interesting." This particular detail might, however, just be the difference between cases in which the Minister of IRCC is a party (as in most of the accompanying-spouse cases) versus those in which the Minister of Public Safety and Emergency Preparedness is a party (uncommon for cases turning on whether days accompanying-citizen-spouse-abroad get credit).
The Minister of IRCC has been the government party in most of the RO breach cases involving the denial of accompanying-citizen-spouse credit. Very few of these cases derive from Port-of-Entry enforcement actions; almost all involve an appeal where a Visa Office has denied a PR Travel Document application. So the Minister from IRCC is represented in most cases, and in those cases the Minister's counsel typically advocates considering who-accompanied-whom, in contrast to the Minister of Public Safety, as in this Baladi case.
It warrants noting that of course the interpretation adopted and advanced by IRCC likely carries the most weight, it being the primary government body charged with interpreting immigration law.
Otherwise, additionally, this case is very interesting in a number of respects.
What it signifies, however, is not clear, and I would caution that the IAD panel's reference to this is at the least ambiguous. In some respects it might be seen to suggest that if the Minister's counsel had contested the application of the accompanying-spouse credit/exception based on who-accompanies-whom, the outcome might have been different . . . but may otherwise suggest that would not have made any difference.
The decision states:
The Panel finds that to meet the exception in 28(2)(ii), Mr. Baladi must be in the same location at the same time as his Canadian spouse outside Canada during 730 days in the relevant five-year period.
This is by far the most liberal version seen as to what is required to qualify for the accompanying-citizen-spouse-abroad credit. The IAD Panel here states this is adopting the interpretation set out in the Mustafa case (regarding which, it warrants cautioning, other more strict approaches appear to be followed more than Mustafa). It is not clear that is correct. In the context of Baladi's circumstances and the IAD's accounting of what is relevant, this IAD seems to conclude being in the same place at the same time is sufficient to show the PR is ordinarily residing with the citizen spouse and thus qualifies for the credit.
To be clear, that is not what Mustafa says. Not really all that close.
See the Mustafa decision here http://canlii.ca/t/hs76z and further observations about this below.
In the meantime, there is a lot to unravel in this case . . . without getting into discussing conflicting views about what the law and rules should be. Of course, as a core principle, the law and rules should be reasonably clear and consistently applied. And in respect to this issue, as we have seen, the law is not clear and is not consistently or uniformly applied, and indeed there are conflicting approaches to how the law is interpreted and enforced.
There's a big difference, nonetheless, between recognizing the need to implement changes which will clarify what the law requires and result in consistent, uniform enforcement, versus polemics pushing personal opinions about what the law should be. For this subject the latter tends to be an unnecessary and unproductive distraction inviting confusion.
Outcome for Baladi Compared to Other Cases:
Perhaps the more obvious (but not necessarily the most significant) interesting thing about this case is the outcome, given the extent to which the underlying circumstances so fully map into the kind of situations which appear most likely to be subject to what has commonly been referred to as the who-accompanied-whom issue. Baladi's situation corresponds to fact patterns for which the credit has been denied in numerous cases. Indeed, if someone had posed a query in this forum citing such facts, many here would likely have said high probability of no credit. Even those who do not proffer such forecasts, like me, would likely have noted a rather substantial risk of that (and indeed, Baladi was in fact issued a Departure Order, and had to appeal to save his PR status, and it is clearly a case that could have gone a different way).
After all . . . Mr. Baladi had not spent anywhere near 730 days in Canada, in total, since he became a PR, a period of more than sixteen years. Spent just ten days in Canada when he landed. His spouse, who sponsored him for PR, was not living in Canada at the time she sponsored him, or when he landed (2004), and has not been living in Canada since 1998. And the Minister's representative was advocating the evidence failed to prove that Baladi had even been in the same place at the same time, as his citizen spouse, for 730 days in the relevant five years.
There is no indication that either of them "accompanied" the other in going abroad from Canada, without even considering whether the PR was the one accompanying the citizen spouse.
This case effectively turned on one factual issue: was the PR in the same location at the same time as his citizen spouse for at least 730 days during the relevant five years. Contrary to the government's position, the IAD concluded they met this standard. As I previously noted, this is the most liberal version of what is required to qualify for the accompanying-citizen-spouse-abroad credit.
Leading back to Mustafa, which again is here: http://canlii.ca/t/hs76z (with caveat, again, that despite the IAD in Baladi relying on Mustafa, more cases cite other authority to apply a contrary approach)
It warrants being clear that Mustafa rejects the view that being in the same place at the same time for 730 or more days will suffice to qualify for the accompany-citizen-spouse-abroad credit. That decision emphasizes that the PR must be "ordinarily residing" with the citizen spouse AND (which conjunction is in bold in the decision), additionally, "the Canadian citizen and the permanent resident must be spatially and temporally in the same location." That is, being in the same place at the same time is required but it is NOT sufficient, not in itself, to qualify for the credit. The Mustafa panel states:
There is clearly a difference between visiting one’s spouse abroad and being ordinarily resident abroad with your spouse, which to my mind, encompasses some permanence, stability, routine and “rootedness” in a destination.
In Baladi's case the IAD panel was focused on the evidence of being in the same place at the same time for at least 730 days. As if it was otherwise established or known that Baladi and spouse were "ordinarily residing" together. But in conclusion the Panel states it was satisfied Baladi was "ordinarily residing" with his spouse, and "therefore meets the requirement of being in the same location, at the same time" for the required 730 days.
For purposes of anticipating how either IRCC or CBSA will approach the accompanying-citizen-spouse-abroad credit in other cases, there is little reason to anticipate the Baladi decision will have much if any influence at all. My sense is that it will have rather little influence. And I don't think it signals much at all about how IRCC or CBSA will approach these scenarios.
But there are other interesting aspects of this case . . . which includes the influence of an aspect of such cases that was addressed by Mustafa, but not given much attention since. The Mustafa IAD explicitly referenced that the underlying object of this credit was in large part about citizens not having to "re-sponsor their spouses." Hard to guess let alone overtly say just how much influence this has, in how officers, the Minister's representatives, or the IAD, decide the outcome in these cases, but just looking at this Baladi case and the other very recently discussed Rafuson ( https://canlii.ca/t/jpf7k ) case, also citing Mustafa, both involving PRs with rather little personal connection to Canada but, it might be worth noting, both apparently on their way to Canada to stay (finally, in retirement) and probably likely to be sponsored anew if they lost PR status. There is bound to be some influence; how much, to what end, hard to say.
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Are you sponsoring a spouse? Are you (sponsor) currently living in Canada? What are you trying to do? Get PR then leave Canada? If you have no plans to relocate to Canada why do you need PR?
Having or "building" ties in Canada can be as minimal as having a nephew or cousin living in Toronto, or opening a bank account here. Owning a home in Canada or paying taxes in Canada are among obvious ties, but note, these tend to have significantly less influence than many believe they will or should.
Settling in Canada is indicated by, well, settling in Canada. It is kind of what it is.
Thus, examples of settling in Canada primarily relate to what is involved in establishing a permanent place of residence in Canada and all the associated aspects of living a life in Canada. It is kind of difficult to appear settled in Canada without actually living here and being more or less fully settled here. Generally a person is not perceived to be settled in Canada unless they have a permanent place of residence here for a sufficient duration in time it readily appears they are living in Canada and here to stay.
Some Observations:
PRs are not required to "settle" in Canada. There is no formal list of criteria defining this. A PR who has in effect "settled" in Canada still has to comply with the RO, which other than qualifying for an exception (like the subject of this thread), requires physical presence in Canada. No matter how "settled" here it appears the PR is.
The influence being "settled" here might have in regards to PR RO compliance is indirect. Not appearing to be settled in Canada, for example, tends to increase the risk of being more thoroughly and strictly screened for RO compliance. PRs who are clearly well settled here, in contrast, are less likely to encounter difficult Port-of-Entry examinations.
Canadian ties has way less influence in matters involving RO compliance, although the absence of ties can similarly increase the risk of more scrutiny. It is mostly in regards to H&C cases that the nature and extent of Canadian ties, which are compared, in particular, with the nature and extent of residential, family, or employment ties outside Canada, tends to be a factor.
Relationship With Accompanying-Canadian-Citizen-Spouse-Abroad Credit Toward RO:
Assuming your query is related to the topic here, in this thread, which is oriented to questions about when a PR living abroad with a Canadian citizen spouse might be challenged to prove they actually "accompanied" their citizen spouse in going abroad . . .
. . . and offering some further observations about this topic generally:
The latter first. And it is about time I have made an effort to articulate this here.
Accompanying-Canadian-Citizen-Spouse-Abroad Credit Toward RO, Generally:
When I started this topic over four years ago, I should have named it differently, giving it a title more clearly focused on what "accompanying" itself means. This is a bit tricky because so many of the cases frame the issue in who-accompanied-whom terms, whereas most of the time, for the vast majority of Canadian PR/citizen couples living abroad, it really does NOT matter who-accompanied-whom. As long as they have been living together in Canada and are living together abroad, there is little risk of any who-accompanied-whom questions or concerns. Even if it is obvious the couple is abroad for reasons specific to the PR (like PR's continuing employment in home country).
The challenge this issue has always posed is how to identify if and when a who-accompanied-whom question might arise.
In cases where this is an issue, and there are more than a few such cases, for some time now the Minister's representative (for IRCC, not necessarily PoE cases involving the Minister of Public Safety as the prosecuting party) has consistently advocated the credit depends on the PR accompanying the citizen spouse, and is NOT available if the citizen spouse accompanied the PR abroad. In contrast, IAD panels, and to some extent the Federal Courts, have reached different and sometimes contrary results.
The overriding threshold question is who, when, and why might a PR/citizen couple living abroad run into a who-accompanied-whom challenge. In short: who-accompanied-whom does not ordinarily matter, but it can matter and make the difference, if the question comes up and is being addressed.
There is no simple formula for apprehending when and why a PR might encounter problems getting this credit. While most of the cases related to this tend to focus on the who-accompanied-whom question, the underlying analysis in some of the more recent cases illustrates the real question is whether the PR in a marital relationship with a Canadian citizen actually accompanied their citizen spouse abroad. Regardless the reason for going abroad.
Some of the cases, those which triggered this discussion in particular, are about circumstances indicating the citizen accompanied the PR, and concluding this tends to show the PR was not accompanying the citizen. However, with only some very isolated exceptions, this approach does not appear to arise unless the circumstances rather saliently demonstrate there is a real question as to whether the PR was accompanying the citizen at all.
What I have increasingly observed is that the risk a who-accompanied-whom question will come up is largely (almost but not quite entirely) related to doubts about the couple actually accompanying one another at all. Once there is a question about whether the couple was actually accompanying one another, at all, that's when there is a significant risk who-accompanied-whom will matter, will potentially affect whether the credit is allowed.
There are several tangents regarding this, illustrated and discussed in posts above addressing a wide range of situations in which this issue has come up. But I am increasingly persuaded that the key issue, that what triggers this issue, is whether it is apparent the PR/citizen couple were not living together in Canada and otherwise did not "accompany" one another in going abroad.
That is, usually (not always, but close): PR/citizen couples living together abroad do not need to worry about qualifying for the accompanying-Canadian-citizen-spouse-abroad credit as long as they were living together IN Canada and are accompanying one another abroad.
Which finally leads to the query posed here, assuming it is related to this issue . . .
Relationship Between Settlement in Canada, Ties in Canada, and Qualifying For the Accompanying-Canadian-Citizen-Spouse-Abroad Credit Toward RO:
It warrants saying upfront, with some emphasis, that appearances matter. And can matter a lot. Especially in regards to this particular issue, BECAUSE what seems to really matter is whether the overall situation triggers an inquiry into who-accompanied-whom. That is, regardless of the particular circumstances, if it APPEARS the PR/citizen couple was not living and settled in Canada together, there is a RISK that the PR's reliance on the accompanying-Canadian-citizen-spouse-abroad credit will be challenged. Once challenged, that's what this topic is all about.
Unlike the criteria employed in making a decision (the factors that can be considered), there are almost no formal parameters limiting what can trigger elevated and more strict scrutiny. Thus, for example, if being "settled" in Canada was a definitive element in a decision whether to allow this credit, this would necessarily involve a relatively well defined meaning of "settled," and some relatively well-defined criteria for determining when a PR is "settled" in Canada. BUT being "settled" in Canada is NOT an element, not at all, let alone a definitive element (there is no requirement to be "settled" in Canada). What I have increasingly recognized is how the appearance of being settled in Canada, or more precisely the appearance of not having been settled in Canada, can influence whether or not a PR/citizen couple are confronted by a who-accompanied-whom challenge. And "ties" in Canada, compared to ties outside Canada, can be a significant factor in how total stranger bureaucrats perceive things, in how things APPEAR to the IRCC or CBSA officials deciding whether to summarily allow this credit or to more stringently and strictly scrutinize things.
Thus, what may be more important is not whether the couple was actually settled in Canada, but whether it readily appears the couple was settled in Canada. This is a two-edged sword. Actually settling in Canada does not guarantee how it appears. And trying to appear to be settled in Canada could easily backfire.
A bit of an update . . . given some recent posting that has raised the risk of this issue in response to a range of queries posed by PRs whose RO compliance depends on this credit.
As I discussed above, nearly a year ago, the challenge this issue has always posed is how to identify if and when a who-accompanied-whom question might arise.
In cases where this is an issue, and there are more than a few such cases, for some time now the Minister's representative (for IRCC, not necessarily PoE cases involving the Minister of Public Safety as the prosecuting party) has consistently advocated the credit depends on the PR accompanying the citizen spouse, and is NOT available if the citizen spouse accompanied the PR abroad. In contrast, IAD panels, and to some extent the Federal Courts, have reached different and sometimes contrary results.
The overriding threshold question is who, when, and why might a PR/citizen couple living abroad run into a who-accompanied-whom challenge. In short: who-accompanied-whom does not ordinarily matter, but it can matter and make the difference, if the question comes up and is being addressed.
The older discussions above, including the previous post nearly a year ago, address all this at some length and since then, so far, there has been no new information suggesting there has been a change in how IRCC approaches this issue. But given the recurrence of cautions about it, it warrants stating clearly, here, some of the commentary about this I have posted in another topic.
Overall, generally a PR relying on RO credit for days outside Canada accompanying their Canadian citizen spouse does NOT need evidence to prove that their spouse initiated the move to the US and not them.
For what evidence the PR needs to show they qualify for this credit, see the guide and the appendix in particular, which is here: https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5529-applying-permanent-resident-travel-document.html#appendixa
See "Situation B. Accompanying a Canadian citizen outside Canada" in particular. There it states the supporting documents the PR must submit to qualify for this credit.
There are some wrinkles in this. "Wrinkles," like my use of the word "worry," is not a technical term. I understand why some might say that even PRs who were living with their citizen spouse in Canada before relocating outside Canada should "worry," or as it has also been framed, at least "be aware" of the potential for the so-called who-accompanied-whom issue when relying on this credit for RO compliance.
However, there has been NO hint of this issue arising for PRs whose address and work history, and patterns in travel history, are consistent with a couple who ordinarily reside together and who were living together in Canada before relocating abroad.
So, if that fits the PR's situation, which will be readily evident in the information and supporting documents (mandatory proof to qualify for the credit includes proof of the citizen spouse's residential address for the full five relevant years and copy of spouse's passport), there is no reason to apprehend any who-accompanied-whom problem.
In contrast, for SOME, for PRs whose address and work history, and patterns in travel history, are not necessarily consistent with a couple who ordinarily reside together and who were living together in Canada before relocating abroad, for them, yes, it will be prudent to give this issue more attention. See previous posts above for in-depth discussion and sources, beginning with the first page of this topic here :https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
Further Observations Re Context:
As many criticize, the IRCC information about proof or evidence showing RO compliance is not as clear as it should be. Which fuels cautions, including the concerns expressed by others; in regards to this RO credit, in particular, there is little hint in IRCC's information and instructions as to how much depends on the meaning of "accompanying," and no hint that there is actually no clear consensus regarding what "accompanying" means, and that within the IAD (immigration appeal division) and the Federal Courts there is outright disagreement about its meaning.
And it is true that the Minister's representative before the IAD has strenuously advocated that to qualify for this credit the PR must be the one who, in effect, follows the citizen spouse in relocating abroad. While many IAD panels, and Federal Court justices, have disagreed and did not accept the Minister's approach, SOME have.
This signals who-accompanied-whom can be an issue for PRs relying on this credit. To a significant extent, however, for the vast, vast majority of Canadian PRs who have relocated abroad with their Canadian citizen spouse, this is overstating the risk and largely misleading. The thing is there is no hint this issue, the who-accompanied-whom issue, will arise absent rather blatantly extreme circumstances.
Allowing for complicated scenarios (and sure, there are many), between the known cases where, again, there were rather blatantly extreme circumstances giving rise to the issue (the vast majority have involved PRs with almost zero actual in-Canada presence, never establishing in fact residency in Canada), and what is more or less a no-worry zone, in that in-between and thus not for sure range, the risk of this issue arising cannot be entirely ruled out. In this range, yeah, good idea to be paying attention, to be aware of this issue, DESPITE the fact that so far there are no known actual cases of this issue being a problem in such scenarios.
But, again, there is very little risk of this being an issue for PRs (1) who relocate outside Canada together with a Canadian citizen spouse AFTER they have been living together in Canada, and (2) who continue to reside together while outside Canada.
BUT . . . Credit For Days Outside Canada Is An Exception:
In particular, credit for days outside Canada accompanying a Canadian citizen spouse is NOT automatic. This credit is considered an "exception," and the burden of proving the PR is entitled to this credit, to this exception, is on the PR. So, again, I understand why some bring up potential issues in regards to qualifying for this credit, including cautioning that there are situations in which IRCC (and even CBSA during border examinations, though this appears to be rare) challenges entitlement to this credit based on a narrow interpretation of what "accompanying" means, such as parsing who-accompanied-whom, and denying the credit in certain situations, such as where the Canadian citizen spouse traveled outside Canada to join the PR living in another country.
Nonetheless, given that the mandatory proof to qualify for the credit includes proof of the citizen spouse's residential address for the full five relevant years and copy of spouse's passport, which will of course be compared with the PR's address and work history, and travel history, that evidence will readily establish they qualify for this credit . . . again, for the PR who relocated outside Canada together with their Canadian citizen spouse AFTER they had been living together in Canada, and who continue to reside together while outside Canada.
As I discussed above, nearly a year ago, the challenge this issue has always posed is how to identify if and when a who-accompanied-whom question might arise.
In cases where this is an issue, and there are more than a few such cases, for some time now the Minister's representative (for IRCC, not necessarily PoE cases involving the Minister of Public Safety as the prosecuting party) has consistently advocated the credit depends on the PR accompanying the citizen spouse, and is NOT available if the citizen spouse accompanied the PR abroad. In contrast, IAD panels, and to some extent the Federal Courts, have reached different and sometimes contrary results.
The overriding threshold question is who, when, and why might a PR/citizen couple living abroad run into a who-accompanied-whom challenge. In short: who-accompanied-whom does not ordinarily matter, but it can matter and make the difference, if the question comes up and is being addressed.
The older discussions above, including the previous post nearly a year ago, address all this at some length and since then, so far, there has been no new information suggesting there has been a change in how IRCC approaches this issue. But given the recurrence of cautions about it, it warrants stating clearly, here, some of the commentary about this I have posted in another topic.
Overall, generally a PR relying on RO credit for days outside Canada accompanying their Canadian citizen spouse does NOT need evidence to prove that their spouse initiated the move to the US and not them.
For what evidence the PR needs to show they qualify for this credit, see the guide and the appendix in particular, which is here: https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5529-applying-permanent-resident-travel-document.html#appendixa
See "Situation B. Accompanying a Canadian citizen outside Canada" in particular. There it states the supporting documents the PR must submit to qualify for this credit.
There are some wrinkles in this. "Wrinkles," like my use of the word "worry," is not a technical term. I understand why some might say that even PRs who were living with their citizen spouse in Canada before relocating outside Canada should "worry," or as it has also been framed, at least "be aware" of the potential for the so-called who-accompanied-whom issue when relying on this credit for RO compliance.
However, there has been NO hint of this issue arising for PRs whose address and work history, and patterns in travel history, are consistent with a couple who ordinarily reside together and who were living together in Canada before relocating abroad.
So, if that fits the PR's situation, which will be readily evident in the information and supporting documents (mandatory proof to qualify for the credit includes proof of the citizen spouse's residential address for the full five relevant years and copy of spouse's passport), there is no reason to apprehend any who-accompanied-whom problem.
In contrast, for SOME, for PRs whose address and work history, and patterns in travel history, are not necessarily consistent with a couple who ordinarily reside together and who were living together in Canada before relocating abroad, for them, yes, it will be prudent to give this issue more attention. See previous posts above for in-depth discussion and sources, beginning with the first page of this topic here :https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
Further Observations Re Context:
As many criticize, the IRCC information about proof or evidence showing RO compliance is not as clear as it should be. Which fuels cautions, including the concerns expressed by others; in regards to this RO credit, in particular, there is little hint in IRCC's information and instructions as to how much depends on the meaning of "accompanying," and no hint that there is actually no clear consensus regarding what "accompanying" means, and that within the IAD (immigration appeal division) and the Federal Courts there is outright disagreement about its meaning.
And it is true that the Minister's representative before the IAD has strenuously advocated that to qualify for this credit the PR must be the one who, in effect, follows the citizen spouse in relocating abroad. While many IAD panels, and Federal Court justices, have disagreed and did not accept the Minister's approach, SOME have.
This signals who-accompanied-whom can be an issue for PRs relying on this credit. To a significant extent, however, for the vast, vast majority of Canadian PRs who have relocated abroad with their Canadian citizen spouse, this is overstating the risk and largely misleading. The thing is there is no hint this issue, the who-accompanied-whom issue, will arise absent rather blatantly extreme circumstances.
Allowing for complicated scenarios (and sure, there are many), between the known cases where, again, there were rather blatantly extreme circumstances giving rise to the issue (the vast majority have involved PRs with almost zero actual in-Canada presence, never establishing in fact residency in Canada), and what is more or less a no-worry zone, in that in-between and thus not for sure range, the risk of this issue arising cannot be entirely ruled out. In this range, yeah, good idea to be paying attention, to be aware of this issue, DESPITE the fact that so far there are no known actual cases of this issue being a problem in such scenarios.
But, again, there is very little risk of this being an issue for PRs (1) who relocate outside Canada together with a Canadian citizen spouse AFTER they have been living together in Canada, and (2) who continue to reside together while outside Canada.
BUT . . . Credit For Days Outside Canada Is An Exception:
In particular, credit for days outside Canada accompanying a Canadian citizen spouse is NOT automatic. This credit is considered an "exception," and the burden of proving the PR is entitled to this credit, to this exception, is on the PR. So, again, I understand why some bring up potential issues in regards to qualifying for this credit, including cautioning that there are situations in which IRCC (and even CBSA during border examinations, though this appears to be rare) challenges entitlement to this credit based on a narrow interpretation of what "accompanying" means, such as parsing who-accompanied-whom, and denying the credit in certain situations, such as where the Canadian citizen spouse traveled outside Canada to join the PR living in another country.
Nonetheless, given that the mandatory proof to qualify for the credit includes proof of the citizen spouse's residential address for the full five relevant years and copy of spouse's passport, which will of course be compared with the PR's address and work history, and travel history, that evidence will readily establish they qualify for this credit . . . again, for the PR who relocated outside Canada together with their Canadian citizen spouse AFTER they had been living together in Canada, and who continue to reside together while outside Canada.