failing PR requirement - panic!

You're required to be in compliance, must reside in Canada for at least 2 years in every 5 yr period.

You can send your spouse/kids to live in Canada right away, and you yourself can also move there, and return to home country for treatment when it is time.

The onus is still on you to maintain your residency. You're still a PR so there is not much the Canadian embassy or others can say, unless the status is lost and/or PR is revoked.

I suppose that in the realm of taxation, there is a process for obtaining a formal "opinion" from the taxing entity as to what tax consequences there are for a described transaction. Other than that, I am not familiar with any bureaucracy in Canada which will issue decisions based on what amounts to a hypothetical.

In law there is something like an application for a Declaratory Judgment, which is similarly an application based on prospective facts seeking a court's judgment declaring the legal effect of those facts pursuant to law. This remedy generally has very limited availability.

But generally, no, there is no procedure pursuant to which formal, binding decisions can be obtained regarding facts which have not yet occurred.

You may be able to obtain an opinion regarding what the prospects are from a qualified, licensed Canadian immigration lawyer. But I doubt that any lawyer will give you anywhere near a guarantee about how things are likely to go.

Bottom-line: As canvis2006 said, the onus is on the PR to comply with the conditions and requirements attendant being a PR, including in particular compliance with the PR residency obligation.

Yes, there is H&C relief available. Upon arriving in Canada, if you are questioned in regards to the residency obligation you can explain why you have been outside Canada for so long, and best to have some formal medical opinion as to the reasons why your condition precluded you from returning to Canada sooner, and depending on the circumstances, on the facts as they exist at that time the POE officer may elect to not make a report based on H&C grounds, or even if an inadmissibility report is made, the Minister's Delegate may decide to not issue a removal order based on H&C grounds. If a Removal Order is issued you can appeal and again make a case based on H&C grounds.

However, no one can assess and judge the facts before they are in fact the facts.

There is precedent. If there are H&C grounds based on the facts, such as where a medical condition precluded a PR from returning to Canada any sooner, and the PR did indeed return to Canada as soon as reasonably practical, subject of course to due consideration given to all other circumstances and facts (how far short of the residency obligation the PR is, for example, is a big factor), yes, the failure to be present in Canada for at least 730 days (within the preceding five years, or for PRs who landed less than five years previously, since they landed plus credit for time left until the 5th anniversary of the date they landed) will not result in the issuance of a Removal Order, the PR will be admissible. But, again, that will depend on the facts as of the day it is in issue, which is the date the applicant is examined at a POE, the date an application for a PR Travel Document is made, or some other date there is an event triggering the examination.

For example, if your PR cards expire around five years from the date you landed, as of right now you should still be in compliance with the PR residency obligation. For example, if the fifth anniverary of your landing is, say, October 15, 2016, meaning you landed on October 15, 2011, if something were to trigger an examination any time between now and October 15, 2014, you would still be in compliance with the PR residency obligation (since there are 730 days left between that date, October 15, 2014, and the 5th anniversary of the date you landed, October 15, 2016).

If your medical condition precludes returning to Canada before there are 730 days remaining to the fifth anniversary of your landing (or, put another way, if it precludes you from returning to Canada before you have been abroad 1095 days since you left Canada), you will be technically in breach of the residency obligation. Anything that triggers an examination, such as arriving at a POE in Canada, will result in either you being issued a Removal Order for inadmissibility (due to PR RO breach), or an investigation/report initiated, or being deemed admissible based on H&C grounds. That decision cannot be made until the issue is ripe, that is, until the day the examination is done (because it must be made based on the facts that exist as of that date).    


Observation regarding your account of the facts
I do not mean to get entangled in the particulars, or to engage in an effort to assess the efficacy of your H&C grounds. This is not a proper venue for that. I am not qualified to offer advice or an opinion as to how a particular case will be judged. At best, that is the sort of discussion you might have with a qualified lawyer.

But, generally speaking, I do not entirely follow what you are saying. On one hand you seem to indicate that the only on-going treatment you have scheduled is for periodic scans while on the other you seem to be saying that you are precluded from traveling to Canada due to ongoing "cutting edge treatment" for a serious medical situation. I am not asking or suggesting you clarify this here. I mention it because if and when it comes time to make the H&C case to CBSA or CIC, a significant factor will in fact be the doctor's opinion regarding how imprudent it would be for you to travel to Canada. The specifics, and in particular a formal medical opinion as to those, will be a major consideration.

The other aspect that is a bit confusing, and again I do not see any reason for you to address or clarify this here, but for purposes of your own self-assessment and planning, you appear to be saying you landed in late 2011 but are already at or near the limit for the PR residency obligation. Similar to the example I outlined above, even if you landed in mid 2011, you have until mid 2014 to come to Canada and settle in Canada.   

Overall, the sooner you arrive to live in Canada the better, and this includes if you cannot come to Canada before 1095 days have gone by since you left. That is, the prospects of a successful H&C claim are far better if, for example, you have been gone 1125 days than they are if you have been gone 1235 days (more is worse).

Additionally, note, that unless it is blatantly apparent to CIC that you are in breach of the residency obligation, if your PR card does not expire until late 2016, there are good odds that if you arrive in Canada any time before the end of 2014 there will not be anything more than a perfunctory examination as to the residency obligation, if even that, upon arrival. Having a valid PR card in possession, particularly one that is still valid for beyond the coming year, tends to make things go much easier. That said, my impression is that the even the PIL officer (first CBSA officer one meets at the POE) has or easily can see when the individual's last entry into Canada was, and of course it is imperative that the returning PR be honest about the date he left Canada on the traveler's Declaration form.

My sense, unless you go well beyond the maximum time abroad, if you have a doctor's statement clearly reflecting what your condition is and why travel was imprudent, and you come to Canada as soon as it is reasonably practical, you have very good odds of things going OK.

But, yes, if you go beyond being abroad 1095 days, it is a gamble.

To clarify with correct information:

greeny wrote: the only way is just not to leave Canada for the nearest 5 years and then renew you PR. for that period of 5 years you can live with expired card

Not correct: once in Canada, assuming there has been no Removal Order issued, all a PR has to do is be present in Canada for two years (730 days), not "5 years", in order to be in full compliance with the PR residency obligation and eligible to receive a renewed PR card.

Beyond that, the rest of the post by greeny does not fairly reflect how things will go for a returning PR who has been abroad for 1095 days or more.

While the applicable operational manuals probably do not constitute the full, current operational procedures and guidelines (CIC has not been maintaining many of the operational manuals published online), the most relevant one is ENF 23 "Loss of Permanent Resident Status," which is at this url: http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf; in particular see section 7.7, beginning on page 19, which specifically addresses "Humanitarian and compassionate determinations." Other relevant operational manuals include:
-- ENF 2 Evaluating Inadmissibility
-- ENF 4 Port of Entry Examinations
-- ENF 5 Writing 44(1) Reports
These can be found by following links at this CIC web page.



The gist of the process is as follows:

If a POE officer ascertains that a returning PR is in breach of the residency obligation, which is apparent if the PR has been abroad for 1095 days or more since last presence in Canada (which the traveler is obligated to honestly report in the Declaration form), a section 44(1) report will be issued and, in most instances followed immediately by a hearing with the Minister's Delegate (who, as I understand things, is generally simply another CBSA officer superior to the examining officer) who decides whether or not to issue a Removal Order.

If a Removal Order is issued, it is not immediately enforceable, the PR will be allowed to enter Canada, and so long as the PR appeals the Removal Order it will not become enforceable unless and until the appeal is decided and goes against the PR.

An enforceable Removal Order means it is in effect, it thus effectively revokes PR status, making the individual then subject to deportation proceedings if the individual does not leave Canada voluntarily.



Will a CBSA officer at the POE ascertain that the OP is in breach of the residency obligation?

This is a question which can only be answered at the time the returning PR actually seeks to enter Canada.

How it actually goes for a PR who has, in his possession and presents a currently valid PR card, will depend on all the facts and circumstances as they then, on that date, exist. (This is why neither CIC nor CBSA can rule on the H&C claim in advance of that date; the facts as of that date are crucial.)

Presenting a currently valid PR card (as the OP may do until late 2016 apparently) will often, if not usually, facilitate the process of returning to Canada without much questioning as to status or even compliance with the residency obligation, but, again, if there is an apparent breach of the PR residency obligation, which would be indicated by the Declaration card alone if the individual has been abroad >1095 days, the prospect of a report being issued to be followed by a Removal Order is substantial, perhaps very high, unless the PR presents convincing H&C grounds.

There are, of course, provisions pursuant to which time abroad counts as time in Canada, such as a PR accompanying a Canadian citizen spouse abroad or working for a Canadian employer abroad, but there is no indication whatsoever those provisions are relevant here.

Bottom-line: if the OP is outside Canada for 1095 days or more, he should be prepared to make a good H&C case at the POE, at the time he seeks to actually enter Canada. A failure to make a convincing case at that time is likely to result in a Removal Order being issued. While there is a right of appeal, the practical burden of proof tends to be more difficult in the appellate setting; that is, it is usually easier to persuade the POE officers of H&C grounds sufficient to allow entry without issuing a report or Removal Order.

And at least until recently, we have seen many reports of individuals being allowed to enter without being issued a report or Removal Order, despite being in technical breach of the residency obligation, when they present a currently valid PR card, have not gone too long in breach of the residency obligation, and have good reasons why they were unable to return to Canada sooner. There is indeed a precedent, that is, many PRs returning to Canada in technical breach of the PR residency obligation have successfully made the H&C case at the POE.

Key factors in making the H&C case:

-- extent to which the PR is in breach (more is worse)
-- reason why PR did not come to Canada sooner
-- strength of evidence documenting the reason for not returning to Canada sooner

Bottom-line for the OP is that he should carry, in his hands (carry-on, not in checked baggage) some formal explanation, adocument written and signed by a duly licensed physician explaining the medical condition and why it precluded travel to Canada, including relevant information like dates of treatment and specific limitations on travel including pertient time periods.

If the medical reason for not returning sooner is documented and the number of days the PR is in breach are not too many, there are very good odds of making a successful plea for being allowed to enter Canada without being issued a Removal Order. However, it is nonetheless still a gamble.

greeny wrote: if Pr is expired in 2016, and they just move in in 2016, then they have to be in Canada for 5 years, why, because, they have to show and prove residency for 5 years prior PR renewal, they have to show notices of assessment, travel history and etc.

You are misinformed.

The Canadian PR residency obligation is 730 days in the preceding 5 years. This only requires a PR to be present in Canada for two years to meet the residency requirement regardless of how long the PR was previously absent.

Thus, once a PR has been present in Canada for two years, and has not been the subject of a Removal Order or other inadmissibility proceedings, the PR is in compliance with the PR residency obligation and is eligible to obtain a new PR card. Again, this is regardless of how long the PR may have been absent previously, even if much longer than three years

That said, these days it is increasingly difficult to return to Canada after any such long absence without being issued a Removal Order, or at least subjected to a follow-up investigation (which quite likely will result in a Removal Order unless the PR demonstrates adequate H&C grounds).

A PR who has been absent from Canada for a very long time may also obtain entry without being issued a 44(1) report by otherwise making a material misrepresentation (at the POE for example, as to status or duration of absence) or engaging in fraud (such as through the fraudulent use of alternative travel documents to enter Canada), but these are a basis for inadmissibility and revocation of PR status, and in some instances may constitute an offence punishable by fine or imprisonment. Not a good idea to pursue this route.

But, if a PR comes to Canada, is truthful in response to questions at the POE, and is allowed to enter Canada without a 44(1) report being issued, once in Canada that PR will be eligible to obtain a new PR card in TWO years time regardless of how long the PR was absent previously.

greeny wrote: so what they will show for 2 years only? for 3 years of absence they will have to fill in additional docs, even if they have 731 days, they will face RQ the best way , just to live 5 years with no Renewal and apply for citizenship, but that's again - my opinion,

Again, two years in Canada is sufficient to meet the residency obligation and be eligible to obtain a new PR card.

Yes, any PR applying to obtain a renewed card (replacement for expiring card) may be subject to a residency examination. And, yes, if so they will have to provide information as to where they have been for the preceding five years and documentation to prove presence in Canada for at least two of those years, and of course this will require them to disclose the time absent and where they were while absent. The issue, however, is only whether they were present in Canada for at least 730 days during the preceding five years, and it does not matter that they were absent for three or even more years beyond that so long as they have been in Canada two years in the last five.



Reminders:
PR status does NOT expire. PR status does NOT require renewal.

Once a person is a PR they remain a PR until PR status is formally revoked, or they become a citizen, or they die.

Formal revocation may be accomplished now by surrendering status, but for PRs who have breached the PR residency obligation the revocation of status is usually done by the denial of an application for a PR Travel Document or the issuance of a Removal Order following a 44(1) report. There are, of course, also proceedings which will result in the formal revocation of status for persons posing serious security risks or otherwise for commiting a serious criminal offence.

A PR who is in breach of the PR residency obligation is inadmissible, but that is of no force or effect unless there is a formal determination as to the PR's admissibility. Again, this usually arises in the context of a denied PR travel document application, or the issuance of a Removal Order following a 44(1) report.

In any event, it may be noted, for example, there are actual cases where PRs have been abroad for a decade or more, who subsequently lived in Canada sufficient to meet the PR residency obligation, that is, to have been present in Canada for at least two years in the immediately preceding five years, and CIC was compelled to recognize that these PRs retained PR status and were not inadmissible. Of course, again, it is far more difficult these days to re-enter Canada without being issued a 44(1) report if the PR has been outside the country for 1095 days or more, so these cases are less and less likely to arise.

The relevant time frame is five years.

As I said in the previous post:

Yes, any PR applying to obtain a renewed card (replacement for expiring card) may be subject to a residency examination. And, yes, if so they will have to provide information as to where they have been for the preceding five years and documentation to prove presence in Canada for at least two of those years, and of course this will require them to disclose the time absent and where they were while absent. The issue, however, is only whether they were present in Canada for at least 730 days during the preceding five years, and it does not matter that they were absent for three or even more years beyond that so long as they have been in Canada two years in the last five.

So, again, yes, the PR will be required to provide information regarding the five previous years. But all the PR has to prove is that he or she was presentin Canada for at least 730 days (two years) during those five years. So, once a PR has returned to Canada and remained in Canada for two years, they are in compliance with the PR residency obligation regardless of where they were the other three years, and at that point are eligible to obtain a new PR card (and again, this is not about renewing status, just about getting a new PR card).

Yes, it is quite simple. Moreover, it is a very liberal requirement. A PR does not have to live in Canada even half the time to remain in good standing as a permanent resident.