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730 Day Fulfilment in Re-entering Canada

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Canada Faith View Drop Down
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    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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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.
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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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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.
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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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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.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 11:16am


Largely agree with observations by timbit_TO.

Some additional observations:

Returning PRs with a currently valid PR card have good odds of not being qeustioned relative to the residency requirement unless there is something that triggers the PIL officer's concern, such as a multi-year absence from Canada. The longer the card is still valid for, the better the odds . . . but this is no guarantee at all and other factors can affect how this goes.

Indeed . . .

There is a great deal of variation in how these things actually go down. Much (if not most) of what influences how things happen in practice depends on the particulars of an individual's circumstances, the totality of their background, history, immigration history in particular, and other not necessarily fair factors.

For example, Brits, Americans, Australians, and those from some (not all) other visa-exempt countries are, I believe, subjected to less scrutiny, or at least less skeptical scrutiny, at a POE, and particularly so relative to the scrutiny given PRs from some African and Middle-Eastern countries. This is not news, I am sure, but it is worth a reminder because this is just one factor among a great many which may affect how things go at a POE for any given individual.

Even age, appearance, and other subtle factors may influence the degree of scrutiny a PIL officer (the first CBSA officer one talks to at a POE) gives an individual, which may affect whether that officer asks questions that could lead to the PR being referred to a secondary examination.

Of course, factors directly related to status and apparent on their face, are more likely to have a direct effect on whether the PIL officer refers the PR to secondary or not.

But other factors totally beyond an individual's control can have an impact as well: for example, a stupid coincidence between one's name and date of birth, or even just appearance, with that of someone who is on record for criminal history or a watch list (including temporary alerts) or such.

But, again, the most significant factors are those directly related to status and identity, and particularly those readily apparent to the PIL officer, such as from stamps in the passport, notes in FOSS, and so on.

Thus, as timbit_TO suggests, if it is apparent from stamps or other indicators in the passport that the PR has been outside Canada for more than 1095 days (three years), a referral to secondary for a residency examination is almost certain, and, I'd suggest, there is perhaps some length of time less than that for which PIL officers routinely make the referral to secondary for a residency examination.

Where I deviate a bit from timbit_TO is in the interaction with CBSA officers at the POE. I do not disagree with the observation that a PR is not obligated to answer questions about meeting the residency obligation (once identity and status is confirmed, a PR is entitled to entry into Canada), but in practice I do not think (in most situations) a PR can do so to his or her advantage. First, one of the most common questions by the PIL officer, whose screening duties include customs as well as immigration, is "how long have you been out of the country?" To refuse to answer this question is, indeed, I suspect, a virtual guarantee of a referral to secondary and, perhaps, a trigger for questioning significantly more intrusive and expansive than even a residency examination. And while one can decline to answer questions, I do not think that things will go all that well if one does. The extent of discretion the CBSA has at a POE is great, and while there are specific guidelines limiting their capacity to deny entry to a "Canadian" (including a PR), their capacity to engage in security related screening and investigation, and holding one at the POE for a "reasonable" amount of time attendant that, is greater than most people want to endure.

(I have been delayed at a POE under stressful circumstances, during which I was subject to somewhat intense interrogation, and while it was a long while ago now the memory of that still evokes a powerful emotional response in me, and believe me, an hour in that situation can seem like a very long time, and two hours or more gets to be very uncomfortable, seeming to be a lot, lot, lot longer than it really is . . . even if, as in my one time encounter of this sort, one is totally calm and absolutely certain there is no real problem, as I was since the whole thing was triggered by a border officer getting the strange and totally unfounded idea that I was not the person named in my passport, a mistaken identity of sorts, so I knew I only had to wait until they did enough checks to be assured I was who I was purporting to be . . . I cannot imagine how I would have felt if I was afraid of some substantial impact on my freedom or status.)

Overall, as timbit_TO also suggests, staying in compliance with the residency obligation is of course the best course of action to take if one really wants to be a Canadian PR, as in permanent and as in resident.

Beyond that, given the great variations in how these things devolve, all we can really talk about are possibilities, risks, and probabilities in the context of what is, technically, the range of possible outcomes.

So, for example, the longer a PR has been outside Canada, the greater the risk of being questioned about the residency examination when appearing at a POE seeking to re-enter Canada.


One more important clarification:

Quote 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


timbit_TO answered this.

However, to be sure you grasp the nature of the obligation: If at any point during your first five years as a PR the total number of days you have been in-Canada plus the total number of days left until the fifth anniversary of your landing adds up to less than 730 days, as of that date you are in breach of the residency obligation since there is no way to meet the requirement of being in-Canada for 730 days during the first 1825 days following your landing.

On the other hand, if you are allowed to re-enter Canada and no removal order is issued, once you are back in Canada it does not matter (practically speaking) if you are in compliance with the residency obligation or not, though of course it would be foolish to do something that might trigger an examination or investigation as to meeting the residency obligation unless and until you are indeed in compliance with it. Thus, once in Canada you can wait until you are in compliance and your status will be good once you are. So, do not apply to renew the PR card until after you are in compliance; do not travel abroad again until you are in compliance, and so on.

Remember, too, if the 60 days you were in Canada already were soon after you landed, those days start to fall out of the calculation after five years. (For example, if as of the fifth anniversary you have been in-Canada for 700 days, counting 60 days immediately following landing plus the most recent 640 days, you will not be in compliance until three months after the fifth anniversary, the first sixty not counting as they become more than five years past.)



Edited by dpenabill - 18 May 2011 at 11:24am
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 timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 11:58am
Originally posted by dpenabill dpenabill wrote:

First, one of the most common questions by the PIL officer, whose screening duties include customs as well as immigration, is "how long have you been out of the country?" To refuse to answer this question is, indeed, I suspect, a virtual guarantee of a referral to secondary and, perhaps, a trigger for questioning significantly more intrusive and expansive than even a residency examination.


I completely agree.  If the most recent continuous absence is greater than 1,095 days, there's not much one can do, other than plead for mercy and hope for lenience, perhaps with the help of an attorney with some experience in H&C applications.

In other situations, when the residency examination is conducted based on a hunch or suspicion that a series of absences may add up to more than 1,095 days, it remains open to the PR whether or not to participate in such an exercise.  Again, I would defer to a professional attorney with a full grasp of the individual's circumstances to advise on the best course of action.

And finally, it may be appropriate to reflect on the importance of playing by the rules, or following the instructions.  A difference of 3 months would have made this a non-issue, as the OP is only coming up about 80 days short.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Canada Faith Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 12:14pm
We plan to enter Canada for three weeks this summer before entering for the final time at the end of the month.  There should therefore be only 4 months between our final entry and our last visit. Based on what you have both said, I am assuming that that may be of help to us?

Are there any other things I should do in my visit this summer that could help my case (i.e. things to show we are committed to being in Canada)?

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Post Options Post Options   Thanks (0) Thanks(0)   Quote timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 12:40pm
It is not necessary for you to show that you are "committed" to Canada.

It is, however, necessary for you to be here, corporeally, for 730 days out of every 5 years.   You will be well advised to govern yourself accordingly.
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