Citizen Citizen accompanying PR (730 rule..?) |
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dpenabill
Top Member Joined: 29 Nov 2009 Status: Offline Points: 6407 |
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Li v Canada – the key days at issue were about one PR accompanying another PR, not a citizen, and nonetheless the court focused on their living together as the key factual consideration relative to what constitutes "accompanying." Underlying that case it appears (fairly obviously) that the questionable PR was primarily living in China, and that his wife, also a Canadian PR, was able to obtain a job in China for a Canadian company . . . so they could be together albeit in China. That case pretty much hammers home the point that it does not matter who went abroad first, who followed who, or why.
The older cases are also illuminating. In Abraham v. Canada the judge stated:
Well, that is pretty much what the operational manual now says. And, frankly, that is what makes sense at least in terms of the language in the Act itself. The contrary argument posed was, in essence, that "accompanying" should be construed to mean "going with," not merely being abroad with. That was rejected (which, it seems to me, was for obvious reasons). I suspect the underlying contrary argument is rooted in older law, when intention was the rule. All these cases involved individuals who personally never really established any residency ties in Canada itself, as a geographical place. Indeed, as is easy to note, in all these cases the questionable PR was only briefly physically in Canada, and primarily or nearly always resided elsewhere. . . . in Ahmed, for example, the questionable PR never really lived in Canada at all, and had, indeed, only spent 42 days in Canada in the five year period in question. But they did have . . . well "sufficient" is probably the right word . . . "ties" to Canada through their spouses, either Canadian citizens or in the Li case a Canadian PR working abroad for a Canadian company (for a sufficient number of days to lift the questionable PR over the 730 day threshold). It is worth emphasizing that these cases involved PRs who had spent very little time in Canada over long periods of time, and for whom there was some question about how much time they were in fact cohabitating abroad with their Canadian spouses. Once a person is a PR, it is not as if Canada is going to take that away on the basis of a technicality. Not only do the rules encompass a lot of flexibility, their application is more flexible than technical. There is a great deal of leeway. And on top of that there is a lot of leeway allowed pursuant to H&C grounds. I suspect this allows for more than a little abuse of the system. "So it goes" my favorite author might have written. It is a more inclusive system. I think that is usually, albeit not always, a good thing. But, overall, again, for purposes of the 730 day rule and the accompanying a Canadian citizen qualification, I don't think it matters who went abroad first or who has the job that lead them to go abroad. |
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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.
BTW: Not an expert, not a Can. lawyer, never worked in immigration |
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matthewc
Average Member Joined: 25 Jan 2010 Location: Hamilton, ON Status: Offline Points: 273 |
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Well, I looked through CanLII just about as much as I could take, and can't find the case PMM was referring to. I did however find three cases which address this issue specifically, i.e. the meaning of "accompanying" in the context of 28(2)(a)(ii):
1. Abraham v. Canada 2. Ahmed vs. Canada 3. Li vs. Canada All three of those cases are interesting, and worth reading, and all three imply that it doesn't matter why the PR/citizen couple is living abroad, just that they are living together, and that alone is sufficient to preserve the PR's status. You'll notice reading through those cases that the minister's council (representing the government) does make the argument that "accompanying" means the narrower definition - i.e. that the reason for the absence should be due to the citizen wanting to be abroad, with the PR following the citizen abroad, not vice-versa. In Abraham, the refusal being appealed (the original decision not to issue a travel document by the visa officer) was on those same grounds. The panel, however, doesn't accept this argument in any of these appeals. In fact, in Abraham the panel actually points out the inconsistency between this argument, and CIC's processing manual. If anyone happens to find the mystery case PMM remembers seeing, please post it here - I'd be fascinated if there were conflicting IAD decisions on this issue. Edited by matthewc - 25 Mar 2010 at 11:44pm |
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dpenabill
Top Member Joined: 29 Nov 2009 Status: Offline Points: 6407 |
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The operational manual, however, is not at all ambiguous about this, and it only makes sense that "accompanying" means accompanying, as in "with" the citizen, regardless of why, for what purpose (other than, of course, to be together).
I too would be interested to see the case, but one rarely sees such issues well-drawn in isolation from other issues in the cases, and, frankly, I'd bet that the factual setting for that case raises other serious issues. Moreover, see Appendix A regarding the "residency obligation" http://www.cic.gc.ca/english/information/applications/guides/5445EA.asp (referred to in information for making an application for a permanent resident card) It is also pretty clear -- It provides:
There is no hint of needing to submit an explanation or reason for being abroad, let alone that being abroad must be for the Canadian citizen's convenience not the PRs. I don't know the case pmm refers to, but I really doubt that it matters who in the couple has the job abroad relative to accompanying a Canadian citizen abroad for purposes of the residency obligation of a PR. |
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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.
BTW: Not an expert, not a Can. lawyer, never worked in immigration |
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matthewc
Average Member Joined: 25 Jan 2010 Location: Hamilton, ON Status: Offline Points: 273 |
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From what PMM said, it would seem that who is accompanying whom does matter, i.e. whether the primary purpose of the couple being outside Canada is for the Canadian to work or the PR to work. That does seem to be at odds with what is written in the processing manual, but it's important to remember that the manual is just that - a manual on CIC's proceedures, it's not actually a legal document, and while it's important, it's not the be all and end all. I'd be interested in reading that case - I haven't been able to find it in CanLII, but hopefully PMM will post a link. |
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coolspy
Average Member Joined: 03 Mar 2010 Status: Offline Points: 166 |
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Thanks dpenabill.
I totally agree as long as the PR has honest interest and intention to make Canada as home this rule (accompanying Canadian Citizen) gives the maximum flexibility. |
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dpenabill
Top Member Joined: 29 Nov 2009 Status: Offline Points: 6407 |
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I suppose therein lies the trap. But any PR living abroad should antipate this (assuming they intend to retain residency in Canada, with a long term agenda to settle permanently in Canada), and gather ongoing evidence to show how they are in fact meeting the residency requirement.
The usual evidence, I'd guess: mail to each at same address, financial and utility accounts reflecting both names at the same address, statutory declarations if necessary. Tax returns. And so on. A lot may depend on how the issue arises. I should emphasize that I do not know the practical dimensions of residency issues and it is hard to guess who might really know such things beyond CBSA and CIC employees who deal directly with these things . . . even immigration lawyers are not likely to be engaged in a sufficient number of such cases to get much of a glimpse beyond the particulars of individual cases, and almost certainly immigration consultants are not likely to be well acquainted with how these things play out in practice beyond isolated and anecdotal reports. But, again, recognizing that (as in so many immigration cases) a lot probably depends on all the particular circumstances in the individual case, how the issue arises perhaps looms as large a factor as any in the equation beyond simply the length of time the PR is physically out of Canada. For example, I suspect those who have allowed their PR card to expire, and who are abroad and are seeking a Travel Document authorizing travel to Canada, face the higher hurdles. And of course the longer one has been away from Canada, the greater the scrutiny I suspect (and I do mean "suspect" which is akin to but not as strong as even an "educated guess," a brain-storming kind of assessment). This is with the recognition that other factors will play a role, favorably or unfavorably, some simply going to the degree of scrutiny that is likely, some going to the core issues. A PR with solid proof of meeting the residency requirement has nothing to worry about. A PR who can prove compliance poses no issues of a discretionary nature (other than the discretion inherent in the fact finding function, which is really very limited in any case in which the PR has good objective evidence). |
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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.
BTW: Not an expert, not a Can. lawyer, never worked in immigration |
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coolspy
Average Member Joined: 03 Mar 2010 Status: Offline Points: 166 |
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Thanks again dpenabill for the Links and clarification. However, not sure how a PR can prove that he is actually 'living together'. Any specific documents ...?
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dpenabill
Top Member Joined: 29 Nov 2009 Status: Offline Points: 6407 |
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Right, for a PR whose spouse is a citizen: "Accompanying" means "ordinarily residing with" and the purpose for their being abroad does not factor into it.
The applicable regulation, 61(4) specifically states:
And the operational manual clarifies that in so far as a PR accompanying a Canadian citizen is concerned, it is simply not necessary to determine for who is accompanying whom. I am not familiar with the case to which pmm refers, but there is clearly something else at play in that decision. Does not appear to be relevant here. All this said, many of the cases seem to turn on the credibility of the evidence of actually living together abroad; I am not sure how these cases arise, but a common thread in many of them seems to involve partners in circumstances casting doubt on the claim they were living together. |
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Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.
BTW: Not an expert, not a Can. lawyer, never worked in immigration |
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coolspy
Average Member Joined: 03 Mar 2010 Status: Offline Points: 166 |
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Accompanying a Canadian citizen outside Canada
Thanks "dpenabill for the relevant documents: It clearly answers the questions about Canadian accompanying PR? http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf " In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met." Edited by coolspy - 21 Mar 2010 at 3:28pm |
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coolspy
Average Member Joined: 03 Mar 2010 Status: Offline Points: 166 |
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Thanks PMM.
Then only Permanent Resident accompanying a Canadian Citizenwill be able to meet the residency obligation. I wish both scenarios would make the PR to meet the residency obligation. Edited by coolspy - 04 Mar 2010 at 11:28pm |
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