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730 Day Fulfilment in Re-entering Canada
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timbit_TO View Drop Down
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Joined: 23 Nov 2010
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Points: 249 		Post Options Post Options   Thanks (0) Thanks(0)   Quote timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 9:23am
Originally posted by Canada Faith Canada Faith wrote:

1. If we win the appeal will we have to stay in Canada without departure until we have accumulated 730 days?

Yes.  Being in breach of your residency obligation at the time of re-entry puts you at risk of being reported.
Originally posted by Canada Faith Canada Faith wrote:

2. Do we have to reach the 730 days upon the exact 5 year anniversary?  Or could we retain our residence once we achieve 730 days even if it runs over the 5 year  anniversary.

I.e. If our 5 year anniversary is November 2013 and we know we cannot achieve 730 days by then.  If we remain in Canada past the anniversary and apply for renewal in January 2014 when we have 730 days how would that be ok?

The examination of compliance is normally triggered in 3 situations:  application for a PR card, a travel document and at the POE.  It would be prudent to be in compliance before finding oneself in one of these situations.  While it is unlikely that if you are peacefully residing in Canada someone from CIC will endeavor to investigate your compliance on the 5th anniversary of your landing, you should certainly strive in good faith to remain in compliance with what is by any measure an objective and fair requirement at all times.
Originally posted by Canada Faith Canada Faith wrote:

3. If we were to engage an immigration lawyer before re-entry, what would we be asking them to do exactly and would it make much of a difference?

Thanks again

The crucial moment will be your interaction at the POE.  That is where you need qualified legal advice.
Law (the). Nobody knows what it is.
Gustave Flaubert, Le Dictionnaire des idées reçues
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Joined: 17 May 2011
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Points: 8 		Post Options Post Options   Thanks (0) Thanks(0)   Quote Canada Faith Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 8:45am
Thanks again.  Just some further questions:

1. If we win the appeal will we have to stay in Canada without departure until we have accumulated 730 days?

2. Do we have to reach the 730 days upon the exact 5 year anniversary?  Or could we retain our residence once we achieve 730 days even if it runs over the 5 year  anniversary.

I.e. If our 5 year anniversary is November 2013 and we know we cannot achieve 730 days by then.  If we remain in Canada past the anniversary and apply for renewal in January 2014 when we have 730 days how would that be ok?

3. If we were to engage an immigration lawyer before re-entry, what would we be asking them to do exactly and would it make much of a difference?

Thanks again
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timbit_TO View Drop Down
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Points: 249 		Post Options Post Options   Thanks (0) Thanks(0)   Quote timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 7:46am
If you prevail on appeal, you will retain the status of a permanent resident.  As a permanent resident you are and will continue to be subject to the obligation to accumulate 730 days of physical presence in any 5 year period.

If you, inexplicably, decide to leave Canada again before satisfying the residency obligation, and then return, and again there are grounds to conclude that you are in breach of the residency obligation, CIC may once again report you and start removal proceedings.

What appears to be a narrow and limited exception to this is discussed on p. 22 of ENF 23 under the heading "The effect of a recent, favorable H&C decision".

Regarding your second question, not sure what you mean exactly by a "red flag", but it is likely that if you decline to answer questions CIC will not be pleased.

Finally, there's little reason for you to feel at ease yet.  There is a real possibility that you will lose your status.  If you are serious about settling in Canada, you may wish to engage an immigration lawyer to assist you in advance of your planned return.
Law (the). Nobody knows what it is.
Gustave Flaubert, Le Dictionnaire des idées reçues
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Joined: 17 May 2011
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Points: 8 		Post Options Post Options   Thanks (0) Thanks(0)   Quote Canada Faith Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 4:34am
Thanks very much for that.  That does clarify things and put me at ease a little.

Can I ask though if proceedings are put in place, and we appeal and win the appeal, what would then happen?  Would we be expected to serve the remainder of our 5 year period and then go through the whole process of appealing again or would they reset our 5 years?

Also if we refuse to answer questions (as it is voluntary) would that not raise a red flag?
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timbit_TO View Drop Down
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Points: 249 		Post Options Post Options   Thanks (0) Thanks(0)   Quote timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 17 May 2011 at 8:11am
It depends, among other things, on the pattern of your absences.  If your most recent continuous absence exceeds 1,095 days, your breach will be immediately apparent upon re-entry.  If not, then it is only likely to be revealed during a secondary examination, if you are selected for one.

While the views regarding whether one should consent to being questioned diverge, you should be aware that the CIC manual explicitly states that answering any questions regarding the duration of one's absences from Canada is strictly voluntary.

In any event, you will be allowed to enter Canada.  CIC may or may not initiate removal proceedings based on the breach of the RO, and in the former case you will have an opportunity to appeal;  you will not be turned away from the airport or the border crossing.

You should carefully review a publication called ENF23 - Loss of PR status.
Law (the). Nobody knows what it is.
Gustave Flaubert, Le Dictionnaire des idées reçues
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Joined: 17 May 2011
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Points: 8 		Post Options Post Options   Thanks (0) Thanks(0)   Quote Canada Faith Quote  Post ReplyReply Direct Link To This Post Posted: 17 May 2011 at 6:58am
Hi

My family and I are permanent residents and have accumulated 60 days in the country so far.  However unfortunately we cannot move for the final time to Canada until the end of this year.  

We were prevented from moving to Canada earlier due to issues with selling our home it appears that when we do re-enter we will not be able to fulfil the 730 day requirement.  If we re-enter Canada as planned later this year and stay without leaving the country, the most we could acquire by the time the 5 year anniversary of our entry is reached would be about 650 days.

Are we likely to have any problems in entering Canada?  In other words will someone at immigration prevent us from entering on the basis that we won't be able to meet the 730 day requirement when our 5 years is up?
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