Will they let me in ?

I got my Canadian PR in Jan 2008 after my wife sponsored me.
However, due to the bad economy at that time, we decided not to live there at that time.
My wife moved back to Canada 6 months back and recently renewed her PR
I have been living outside and continued to visit her on weekends in Canada and continuing to look for job there
On one my of last such visited, the Canadian port of entry officer asked me to go to the immigration officer where he advised(rather strongly) me that I run the risk of losing my PR if I do not move there for good, soon enough. He also added a note in my file and then let me in.

I exited Canada after 3 days. Now I have been seriously looking out for a job there and planning to move there in the  next month  after wrapping up my affairs here.
I know that by then I wil be short by a couple of months as I would not have 730 days in Jan 2013 when I would complete my 5 years as a PR

Now my question is, when I try to  re enter next month ( knowing that I wil fall short by  2-3 months when my 5 years are up), would they let me in  ? What problems can I foresee  and whats the best way to handle this now ?

genuismagic:

A Canadian PR is entitled to enter Canada. Even if his or her PR card is expired, he or she is entitled to enter Canada.

The bad news, though, is that they can issue a removal order. That is, they must let you in, but if they have reason to believe you are in breach of the PR residency obligation they can, and most likely will, give you a removal order.

You can appeal that. You can and should make H&C arguments even at the border (explaining your circumstances, the search for work, your spouse living in Canada, and so on) and if you are close there is a good chance (no guarantee) they will warn you again but not yet issue a removal order.

If you get the removal order and leave again that is going to make it more difficult to make your case on appeal. However, unless and until you lose the appeal, you would still be a PR and still entitled to enter Canada upon subsequent attempts to return to Canada. (The PR residency obligation is not self-enforcing.) Once you lose the appeal, the removal order becomes enforceable and you have lost PR status.

Your wife can sponsor you to become a PR again, but of course she must meet the requirements of a sponsor, such as not being on social assistance.

Caution: the validity dates of a PR card do not affect an assessment of compliance with the residency requirement. Some things to note:

-- I may very well be wrong, but I get the sense that your wife may have cut it close as well; remember, she must continue to meet the PR residency requirement and it does not matter what the validity date of the PR card is. A valid PR card does not overcome being in breach of the PR residency requirement, which is a continuing one. So if she did cut it close and she was to leave Canada for a length of time, she too could end up in breach of the residency requirement and face removal for inadmissiblity.

-- The date by which you must be able to have been present in Canada for 730 days in your initial period of time as a PR in Canada is the fifth anniversary of the day you landed, NOT the date your PR card expires. The difference in time may be a couple weeks to a couple months depending on when your PR card was actually issued, but if you are cutting it close those two weeks, and particularly if it is longer, closer to two months, could really make the difference. And it appears that computergeek may not recognize that if at a point during those first five years the PR has not spent enough time in Canada to make it possible to have a total of at least 730 days presence in Canada, they are then in breach of the PR residency obligation, thus inadmissible and subject to losing PR status . . . basically, as soon as a PR (during the initial five years) is absent from Canada for 1096 days since landing, they are in breach of the residency obligation and inadmissible, even if their PR card is still valid, say, for another year and a half.

-- -- I suspect that computergeek may be looking at general practices at a POE; generally a PR with a currently valid PR card is allowed into the country and not subject to a residency examination, so usually having the valid PR card makes it easy, no questions thus no problems, no chance of a removal order. BUT, once there is a flag, some note in the PR's file this changes. This can arise for various reasons in various circumstances, but probably, in your instance, arose in connection with the pattern of entries into Canada combined with some other indications of a potential residency obligation issue. Once flagged, that really changes the landscape.

-- It is important to be aware that if they do issue a removal order, while they must allow you to enter Canada anyway, your time in Canada following that will NOT count toward compliance with the PR residency obligation.

-- It is also worth noting that this government has, it appears, stepped up enforcement of the PR residency obligation. In the past, it seemed that POE officers were quite lenient in evaluating incoming PRs for compliance, and did not issue removal orders in many cases even though the PR was a bit short of compliance (some H&C grounds must be necessary for this). In contrast, overseas visa offices were quite strict in dealing with applications for a PR Travel Document to come to Canada. I strongly suspect that POE officers have been advised to get tougher, to enforce a more strict application of the PR residency obligation.

Bottom-line:

If you know you are going to be short the next time you approach the POE to enter Canada, you should probably consult with an immigration lawyer about preparing an H&C argument. Things go a lot better if no removal order is issued . . . they may still refer your case to a local office in Canada to conduct an investigation and residency examination, but if no removal order was issued at the POE your time in Canada continues to count in your favour and generally things tend to go better.

Part of doing that, however, is basically you need to move to Canada then. Indeed, while I am not certain, not at all, I think if you approached the border, the POE, with a load of stuff that you were bringing to Canada to move to Canada, and you have concrete plans to stay and live in Canada, that should (no guarantees -- a lawyer's advice regarding this would be much better than what I say) help persuade them to not issue a removal order. It is absolutely critical, however, to be entirely honest in what you represent to them at the border. They get a scent of misrepresentation, deceit, or evasion, things are likely to go way bad way fast.

You do have other options. Again, a lawyer could better help you to sort these out. But, for example, if you are not prepared to fully move to Canada soon, you might as well give up PR status. If you do that voluntarily, being entirely upfront, you should be able to enter Canada as a visitor periodically while you continue to live and work elsewhere. When you are finally ready to really move to Canada, your wife can sponsor you to become a PR again. She must, as I said above, be a qualified sponsor, and you must of course continue to be admissible to Canada, and of course you must continue to maintain a genuine spousal relationship, but the availability of this avenue is explicitly stated as one of the reasons why H&C grounds may be insufficient in such scenarios: that is, more than one IAD panel and more than one Federal Court justice have concurred that the alternative availability of the spouse living in Canada to sponsor the other mitigates the hardships of a removal and loss of PR status.

At this level of detail it would really be much, much better to consult with an immigration lawyer and go over all the circumstances in detail, in a confidential setting with an attorney (not a consultant) who had practical experience in this area.

I am no expert. Not by a long shot. No one here can be relied upon to offer expert advice.

I am under the impression that things have changed with CIC and CBSA relative to enforcement of the PR residency obligation. That makes it very difficult, if not impossible, to predict how things will go. One of the major incentives for Canada to enter into a recent accord (so far just entered to in principle, not formally as yet) with the U.S., relative to real-time sharing of border crossing information, is to better enforce the PR residency obligation. It seems to be a priority for this government.

Thus, much of what a number of us have said here in the past couple years may not be current.

All this points to, again, the need to consult with a real immigration lawyer.

If you want to do some additional homework for yourself, go to the operational manual ENF 23 "Loss of Permanent Resident Status" and, in particular, go to section 7 in that manual, and go to 7.7 especially (around page 19, the discussion about "Humanitarian and compassionate determinations"); this is a link to that manual. There are other manuals which are relevant to your situation, such as the one regarding evaluating inadmissibility and the one regarding POE examinations. You can get to the operational manuals by following the link on the CIC home page for "publications" (lower left side).

But, frankly, going to a competent lawyer is what you need to do.

I will, however, offer some additional observations:

I believe the weekend trips to Canada did help. They undoubtedly delayed the date on which you became technically in breach of the obligation. They undoubtedly do bear the kind of weight you thought they might: evidence of continuing ties and intention to make Canada your home. They will help when it comes time to make a H&C case.

Sure, if you did not approach the POE, they would not be alerted to the pattern of your absences, but eventually this was going to catch up with you anyway, and again, it would have caught up to you sooner but for the periodic trips to Canada and without those trips making the H&C case would be far more difficult.

Your dilemma now is obvious: the longer it is before you attempt to re-enter Canada, the harder it will be to make a convincing H & C case. But, you are right, the next time you attempt to return to Canada is likely to be the time things are at the critical stage: stay or get a removal order, or, perhaps simply get a removal order.

No avoiding the consequences now, though; all you can do is prepare and in particular prepare to make your best case to be allowed to enter without being given a removal order . . . recognizing though that even if you are given a removal order, you can still make the H & C case on appeal and while I suspect they are getting tougher I believe you have fairly good odds . . . that said, yes, the number of days you fall short is getting rather high.

I believe, but I am not at all sure, that PRs within the first five years following landing, are treated more leniently in this regard . . . the contingencies of real life and the difficulties of making the transition to fully settle in a new country are recognized and, I believe, to some extent will allow for some flexibility in applying the residency obligation. This could be changing under the current government. And, in contrast, for someone who has been a PR for more than five years: falling short of the obligation by 80 days is most likely going to result in the loss of PR status.

Frankly, if your wife only has 800 days presence in Canada within the previous five years, I'd say that is indeed cutting it close . . . that is well less than half time spent in Canada, and depending on when some of those days occurred, if she is outside the country for just a little over two months in the near future, that could put her at the brink of being in breach (if those 800 days were mostly within the previous three years, then she is good for a long while . . . but the obligation is ongoing, so any time she leaves Canada she too could be questioned, upon returning, about how many days within five years from that day she had been in Canada, and if it is less than 730, that is a breach).


Finally, no, you would not find yourself prejudiced in a new PR application just because you previously had PR and lost it or gave it up due to not meeting the residency requirement. In particular, if you are sponsored as a spouse, if the sponsor is qualified to sponsor and the relationship is genuine and the applicant is not inadmissible, CIC has no discretion: they must grant PR status. And they will. They are not interested in keeping families separated. They are, however, charged with enforcing the rules and regulations and laws, and among those is the PR residency obligation, which is why you would lose PR status for being in breach. But, again, no, it should not handicap being sponsored to become a PR again . . . of course the problem of maintaining the relationship through such a separation can indeed be daunting. Relationships can be tough to maintain in good times and the best of situations; separations are indeed very hard on many couples.

See a lawyer.

aeem23: 1. Do you consider in general IAD panel/ Federal Court Justice are not willing to give a positive sentence in cases where the 730 days has been broken and they prefer instead PR spouse start a sponsor process? Off course I know some special cases are applicable, but what if that was for job reasons and it looks not a big hardship for the family separation? 2. If spouse is working but is not doing enough money to meet the requirements, it is possible Immigration looks in both incomes? the sponsor and the spouse sponsored? 3. If family lives here in Canada, it's Immigration open to aprove a Visa to visit the familiy while as you said the person it's ready to really move to Canada? Are they no fear the person decide to stay in Canada and be a problem for them? (and you know how hard is get a Canadian Visa anywhere) Thanks for your answers in advance. As maybe you remember me from a previous threat, my brother was denied a TD overseas and he is appealing that decision. However, I'm not sure if that is the right decision due to the way IAD panel use to act. I think his chances are minimal (in my opinion, not my brothers), and your words confirm me that impression. I'm more eager to the idea his wife start a sponsorship process but I have that doubts. I've contacted some lawyers, but my feeling is they not really looking for the goodness of the client but for theymself ($$$) and they say yes, you have a chance, but it not convinced me at all. I know that appeals at the end are unpredictable but I don't want my brother spent a bunch of money and time in a process with almost any chance. Thanks

I do recall your previous posts but not in detail.

In any event, I have offered about as much as a non-expert can offer. As I have said in related topics, and often, there are many, many variables in these kinds of situations and it is far better to find a good lawyer and work with that lawyer . . . even with a good lawyer, there is a lot that could go one way or go another, some risks, no guarantees.

Lawyers are expensive, yes, but most lawyers are (I believe, though I cannot really say I know) practical and will give practical advice. Good lawyers, in particular, do not need to con clients into paying for services that will do the client little or not much good. Sometimes, for some, a chance is the best they get and it is worth pursuing.

The thing about your brother's case is that I don't think these appeals take all that long, not in the whole scheme of things, so if that's the route he's taken, might as well ride it out . . . should not prejudice the available alternatives in the event the appeal is denied (which, in the abstract, yes, I'd guess is the likely outcome, but of course what the actual outcome will be depends on all the particulars of his case, so my guess is just that, a mere guess).

As to the specifics of your questions, what I have said before applies . . . but please remember I am discussing things in the abstract, based on general principles, based on general trends, whereas every case is determined on its particular details and merits. The details matter.

For example, I have said that I thought that the PR who in effect surrenders PR probably has a better chance of then obtaining a visitor's visa than just the general population of Foreign Nationals from the same country. But that is still very much an individually determined matter, based on all the individual's background, history, circumstances, ties, and so on. This is not just about special cases but is about the vast range of variables that can affect the outcome of even a mere visitor's visa application.

One question, though, does have a relatively simple, straight-forward answer:

If spouse is working but is not doing enough money to meet the requirements, it is possible Immigration looks in both incomes? the sponsor and the spouse sponsored?

No. Foremost, the subsequent family class sponsored partner PR application will be processed pretty much like any other family class sponosored partner PR application . . . yes the previous history will have some bearing, some influence, but that is because a person's history generally has influence. The parameters and requirements, including requirements of the sponsor, will still apply. Note, though, that a spousal sponsorship does not require the sponsor to meet any minimum income requirements, just that the sponsor cannot be on social assistance. But, no, their combined incomes will not be considered, and indeed the income earning capacity of the person being sponsored is not really considered.

Hi

aeem23 wrote: dpnabill just for clarified somenthing, you said "that a spousal sponsorship does not require the sponsor to meet any minimum income requirements, just that the sponsor cannot be on social assistance." Maybe I'm wrong and things have changed on that issue, but I sponsored my wife a few years ago and I remember I had to meet the minimal income to be approved as sponsor. That are my worries with my brother because his wife don't make so much money as my brother does. Could you please clarified that issue for me? thanks. (maybe I need to come back to Family Sponsorship 101! ;)

There is no minimum income BUT, if the sponsor has a minimal income and the applicant has no English/French ability, no marketable skills and low educational accomplishment, then a refusal can result. It will be refused on the basis that once the Applicant is in Canada they will not be able to subsist without resorting to welfare.


Marginal note:Financial reasons

39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

search http://www.canlii.org/en/ca/irb/index.html with sponsorship spouse 39