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Citizen Citizen accompanying PR (730 rule..?)

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matthewc View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote matthewc Quote  Post ReplyReply Direct Link To This Post Posted: 25 Mar 2010 at 12:15pm
Originally posted by dpenabill dpenabill wrote:


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.


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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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 25 Mar 2010 at 6:58pm
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:

Quote You may also count the days spent outside of Canada in the following circumstances as days for which you satisfy the residency obligation:

Accompanying a Canadian citizen outside Canada

You may count each day that you accompanied a Canadian citizen outside Canada provided that the person you accompanied is your

•spouse or common-law partner or
•parent, if you are less than 22 years of age

Evidence that you are accompanying a Canadian citizen

You must provide supporting documents to prove that:

•The person you are accompanying is a Canadian citizen; and
•You are the spouse, common-law partner or child of that person.

Supporting documents may include:

•marriage licence
•child’s birth certificate, baptismal document, and/or adoption or guardianship document
•school and/or employment records
•association or club memberships
•passports or other travel documents
•documents indicating the status of the person you are accompanying


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.




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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Post Options Post Options   Thanks (0) Thanks(0)   Quote matthewc Quote  Post ReplyReply Direct Link To This Post Posted: 25 Mar 2010 at 11:36pm
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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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 26 Mar 2010 at 4:01am
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:
Quote It seems to me from reading section 28 that the important issue when it comes to residency obligation is who the permanent resident is with while abroad – for example, a Canadian citizen, or a Canadian business, or a permanent resident working for a Canadian business, and not how and where the permanent resident came to be with that person.


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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BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote matthewc Quote  Post ReplyReply Direct Link To This Post Posted: 02 Apr 2010 at 12:49pm
For completeness, here is one appeal decision that clearly conflicts with the three cases I quoted above, and dpenabill's reading of the processing manual. This may be the case PMM was referring to, I'm not sure. Thanks to toby over at canadavisa.com for finding this.

Smith vs. Canada

"[28] Where the panel does not accept counsel’s argument is around the phrase “outside Canada accompanying a Canadian citizen”.  Subparagraph 28(2)(a)(ii) requires that a permanent resident accompany a Canadian citizen outside Canada.  The panel is of the view that the common-law relationship in this case involved a Canadian citizen accompanying a permanent resident outside Canada, not vice versa."

It's worth reading the full case. The appeal was approved, on H&C grounds, despite the panel upholding the refusal as valid in law, based on the narrower interpretation of "accompanying".

So I think the take home message is that there is conflicting case law on this, even at the appeals level, and it may not be entirely safe to rely on 28(2)(a)(ii) in a situation where the primary reason for the couple being outside Canada is the Permanent Resident. The decisions I quoted go the other way, so I guess you have to ask yourself "how lucky do I feel?"

In the end, it's always best to preserve PR status by being in Canada!
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 02 Apr 2010 at 6:09pm
The Smith case is clearly overruled by the later cases (in so far as IAD decisions establish precedent). In particular, the meaning of "accompanying" this IAD panel relied upon was the "to go with" language the later (more recent) decisions disavow.

It can't be the case pmm alluded to because it is not a federal court decision, but an IAD decision.

I have not researched relevant cases decided by the Federal Court on this issue -- since, to my mind there really is no issue, the rules, regs, and law look to be very clear on this, at least as of now . . . and that is, that "accompanying" is a matter of being with (residing with), not, as this IAD panel ruled, a matter of "to go with."

But, as I had suggested earlier above, that is that any such case was likely to involve significantly more than the technical question turning on the definition of accompanying; and indeed, this Smith case involves an extensive array of factors weighing heavily against the person claiming PR status. As lawyers often say, "bad facts make bad decisions," and this looks like a perfect example of that. After all, this was not a case involving a PR who went abroad and was later followed abroad by their partner, but a case involving someone who went abroad, evidenced a firm intent to permanently reside abroad, and indeed stayed abroad for more than two decades PRIOR to even meeting her subsequent Canadian partner.

In other words, it was almost overwhelmingly obvious that she had had virtually NO ties to Canada for over two decades (and that is before she even met the Canadian who became her common-law partner and later her spouse), neither geographically nor by relational affinity. Moreover, she had definitively indicated an intention to permanently reside outside Canada, and had done so at a time when Canadian immigration law provided for the loss of PR status by doing so (but since her PR status had never been formally adjudicated, by the time this came up in 2004 she was entitled to the benefit of the current law which specifically provides that a PR retains PR status until a decision otherwise has been formally adjudicated).

The period of absence from Canada, for one, is more than remarkable, well over three decades. The lack of any ties whatsoever to Canada for at least two thirds of that time is remarkable. The obtaining of permanent resident status in another country during that time was remarkable (and again, this was done at a time when doing so was specifically a grounds upon which her PR status in Canada could have been revoked).

I am quite confident (well, actually, my opinion is quite certain) the current state of the law is not the least bit ambiguous or in doubt. I don't think it matters who went abroad first, or why. I don't think anyone has to worry about "accompanying" being parsed in that sense.

The "accompanying" issues are:
-- "who" (whether the partner is a citizen or not, or in the the exception for accompanying a PR, whether one or the other was working for a Canadian company or not),
-- and "whether or not residing together."
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Post Options Post Options   Thanks (0) Thanks(0)   Quote matthewc Quote  Post ReplyReply Direct Link To This Post Posted: 02 Apr 2010 at 6:35pm
Well in terms of precedent:

Abraham - 2005
Ahmed - 2006
Smith - 2007
Li - 2009

Maybe that's just one bad decision. I, personally, think the definition of accompanying in this context should be "residing with", without a doubt.

I'm not arguing for the sake of it, I'm genuinely unsure the current state of the law is 100% certain, since the law is only as good as how it is interpreted, and this has clearly been interpreted both ways.

What is clear is that some visa officers have refused TD applications based on this. Unless specific guidance is issued to visa offices on this, it's certainly possible officers may refuse travel documents again on the same grounds. So, even if you are confident the three IAD decisions I quoted first are sufficient that you'll be able to win on appeal, you are still running the risk of having to take your case to appeal to preserve your PR status if you rely on this interpretation of "accompanying".
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Post Options Post Options   Thanks (0) Thanks(0)   Quote matthewc Quote  Post ReplyReply Direct Link To This Post Posted: 02 Apr 2010 at 6:36pm
Oh, also I asked PMM and he said it was an IAD decision he was referring to before.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 02 Apr 2010 at 8:33pm
I disagree that a PR living abroad with a Canadian citizen spouse is running the risk of having to take their case to appeal to preserve PR status based on an interpretation of A28(2) that turns on who went abroad first or why. No, there is no indication of that, and the applicable OPs make it clear.

Moreover, as I have quoted before, a specific Regulation R61(4) now governs this, defining accompanying in terms of "ordinarily residing with . . ." There is nothing ambiguous about this. To any extent the change in law in June 2002 was subject to the interpretation cited in Smith, the regulation and operational manuals now clearly clarify the proper interpretation.

And, again, Smith was as extreme a fact pattern as could be manufactured, two decades gone before even meeting the Canadian citizen.

Quote Unless specific guidance is issued to visa offices on this . . .

And again, specific guidance has been provided. That is what the Operational Manual is for (it is not for our benefit; we are merely given access to it due to transparency rules). That is why the regulation was adopted.

Remember, this is applying (and interpreting) law which only came into effect June 2002, and which it has taken years to unravel, to interpret. Under the law prior to June, 2002 all these cases would have clearly resulted in the loss of PR status, almost without question. And sure, many if not most visa officers were in the field under the prior law and no doubt lean toward finding grounds to refuse a TD or revoke PR status to persons who have had very minimal ties to Canada for many, many years. And one can expect them to continue to at least scrutinize any such case with great intensity, looking for a basis upon which to refuse the TD or revoke PR. But that is only in the extreme cases, in the sort of cases for which the officer will dig to find any grounds, and sure anyone who pushes the envelope to such an extreme (like having no contacts with Canada whatsoever for more than two decades, like Smith) is risking having their affairs examined under the microscope before being allowed back into Canada as a PR.

But anyone with significant ties to Canada is not risking having a visa officer challenge their PR on the basis of a technical interpretation of "accompanying" in the manner of the Smith decision.

Again, in contrast I am quite certain of this. The law may have of been a little bit fuzzy through 2004, even until 2006 or a little more recently in rare circumstances (Li for example), but it is not now.

100% certain? Nothing in the application of law is ever that certain. Things do, sometimes, go bump in the night -- or, in a tortured version of the old saying, "stuff happens."

But this issue is pretty well settled.




Edited by dpenabill - 02 Apr 2010 at 8:35pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote matthewc Quote  Post ReplyReply Direct Link To This Post Posted: 02 Apr 2010 at 9:31pm
Somehow I missed R61(4) - I know you posted it above - and have to agree that does seem to settle it.

Maybe you can explain something I simply don't understand, then - why do none of those cases refer to R61(4) then, at all, not once, since it appears the definition was there in the original (2002) version of the regulations?


Edited by matthewc - 02 Apr 2010 at 9:31pm
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