Re-entering Canada with a valid PR card but will n
Printed From: Canada Immigration and Visa Discussion Forum
Category: Canada Immigration Topics
Forum Name: Preserving Permanent Residence Status
Forum Description: How long can a permanent resident remain outside of Canada? Commentaries on preserving permanent residence.
URL: https://secure.immigration.ca/forum/forum_posts.asp?TID=1659
Printed Date: 19 Apr 2024 at 6:48pm
Topic: Re-entering Canada with a valid PR card but will n
Posted By: flim84
Subject: Re-entering Canada with a valid PR card but will n
Date Posted: 18 Mar 2010 at 2:39pm
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My present situation is that I have only lived in Canada for 1 yr 3 months (left at the end of March 2007--thus to fulfill the 2 year requirement I need to leave immediately) but I can only return on late May 2010--my PR card expires on 21 Dec 2010--thus I can never fulfill the residency obligation. I have several factors that I hope you can clarify/assist:
(1) Re-entering Canada with a valid PR card. I really need clarification on this issue. According to the offical Canada immigration website (and the PDF pertaining to PR status), I can enter the country without any problems (based on the strength of the PR card alone).In other words, is this absolutely true? More specifically, will I be questioned and when they discover that I will not fulfill the requirement when my card expires, will they still let me in OR let me in with only a 30 day grace period (and take my PR card away) for appeal (this will be a total disaster as I'm shipping my stuff permanently by then). What do you think are my chances of 'escaping' the quieries of the IOs? Not good right?
(2) Renewal of PR card. This is really confusing. First off, from the offical PDF--Laws on PR status--the application for renewal says that you need to only include your expired card with the application (if it's still valid you don't need to--this means that I can send up the renewal even though my card has expired? Then from reading the immigration blogs (which are most helpful but cannot be fully trusted), the overall suggestion is to only re-apply after you have again re-accmulated 2 years before re-applying (even though the card will by then have expired by at least a year). In my case, this would be coming back on late May 2010 and then applying for renewal around June 2012 (and my PR card will be expired on 21 Dec 2010---that means about 1 and a half years). Isn't this illegal? I don't want to do anything illegal or cause a burden to Canada! My main concern will be the duration when I'm living in Canada with an expired PR card. What if I lose my job, can I get re-hired without a PR card (since I am in possession of the SIN card and have been previously employed during my previous stay in Canada)? What do you know/think??
Many thanks in advance!!
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Replies:
Posted By: blackpearl
Date Posted: 18 Mar 2010 at 2:58pm
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1) You can try entering. I have heard others' experience that they were let in without any problem. I also read some cases where they were determined to have be non compliant with residency requirement, and allowed to enter for 30 days and file appeal. 2) The expiry of PR Card and PR Status are two different things. As long as you are staying in Canada, you are legal (unless you were ordered to leave). But otherwise, you can stay, and let your PR Card expire. You can renew it once you have accumulated the required 730 days in the last 5 years.
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Posted By: flim84
Date Posted: 18 Mar 2010 at 3:05pm
| Many thanks. So it would be a 50/50 situation at best. Thanks again and take care. |
Posted By: dpenabill
Date Posted: 20 Mar 2010 at 4:42am
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A PR retains PR status until there is a formal proceeding resulting in an official decision to revoke PR. A PR can continue to live in Canada even though the PR card itself has expired . . . only the card has expired, not PR status (like one's passport expires . . . but one remains a citizen of course). As for the attempted re-entry with insufficient time to fulfill the residency requirement: you definitely have problems. They must allow you entry (assuming identity is established), but there is a significant likelihood of being questioned relative to residency, the extent to which may depend on sundry factors: depending on what your other travel documents show, depending on what your CBSA records display, depending on the mood or propensity of the officer screening at the PIL, and such. They cannot rule on your PR status at the border. They can, and once they ascertain your problem with meeting the residency requirement are very likely to, commence a formal investigation leading to proceedings to revoke your PR status. I don't know the details of the process, but I believe that once the proceedings have been commenced that is the deciding date -- although if you have not been a PR yet, perhaps the fifth year anniversary is the deciding date, but either way, you won't satisfy the residency requirements and will be left with an appeal on H & C grounds or such. ------------- 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 |
Posted By: pmm
Date Posted: 20 Mar 2010 at 12:40pm
Hi
1. what happens if the IO determines at the POE that the applicant hasn't met their residency requirement or will not be able to meet it. Then a report under 44(1) is written and a removal order is issued. The applicant then has 30 days to appeal to the IAD. If not appeal is submitted then the removal order becomes effective. If there is an appeal then the removal order is held in abeyance until the appeal is heard. ------------- PMM |
dpenabill wrote:Posted By: dpenabill
Date Posted: 20 Mar 2010 at 7:32pm
This is not true. This glosses over the process (ignoring important intermediate proceedings) and is misleading as to any PR whose status has not yet been adjudicated. To the extent it suggests a failure to meet the full requirements of residency will definitely (or even most likely) result in not being admitted to Canada, it is wrong. It is misleading to the extent it suggests that a person failing to meet the residency requirement will definitely be removed from Canada. This may be quibbling, though, relative to the situation presented by film84 (the OP here) because of the OP's absence from Canada for more than three consecutive years, which on its face documents the failure to meet the residency requirement, and thus, as I said previously, the OP has a definite problem and will quite likely (though, it should be emphasized, not necessarily) face a removal proceeding. Nonetheless, as a PR the OP must be allowed to enter Canada upon approaching a POE. One aspect of my previous post was technically wrong because at some POEs a delegate of the Minister of Public Safety and Emergency Preparedness is available to make a prompt determination on the POE officer's A44(1) report, so in some cases a removal order may be issued at the POE itself (again, however, only following the Ministerial adjudication, and the PR must nonetheless still be allowed to enter Canada -- unless, of course, there are other grounds of inadmissibility warranting detention or a denial of entry). Foremost, and simply, an examining officer at a POE cannot issue a removal order. If the examining officer at the POE is the Minister's delegate at the POE (which for many POEs is the case, though probably not so for larger, busier POEs like the Pearson airport), the examining officer cannot review the A44(1) report. The POE officer only has authority to make the report. The report must go to the Minister, or (as is most often the case) the Minister's delegate. In the meantime, the POE officer must allow the PR to enter Canada. How it goes from there, in practice, varies. But even prior to that, as to whether a A44(1) report is even made, it is complicated and in practice varies. For anyone actually facing this situation, it is probably a good idea to review the applicable operation manuals: ENF 4 – Port of Entry Examinations http://www.cic.gc.ca/english/resources/manuals/enf/enf04-eng.pdf ENF 5 – Writing 44(1) Reports http://www.cic.gc.ca/english/resources/manuals/enf/enf05-eng.pdf ENF 6 – Review of Reports under A44(1) http://www.cic.gc.ca/english/resources/manuals/enf/enf06-eng.pdf and, ENF 23 – Loss of Permanent Resident Status http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf In any event -- Worst case scenario for a person with PR status who approaches a POE and is identified by an examining officer as not meeting the residency requirement: a 44(1) report is generated, and a Minister's delegate is on-site and the Minister's delegate immediately issues and serves on the PR a "removal order," and the PR then proceeds on his or her way into Canada. It is true that then the PR then has 30 days to file an appeal, which is simply accomplished by sending in a written notice. In the meantime they are entitled to remain in Canada. In the meantime they remain a permanent resident. (see page 10 of ENF 23) They are not subject to detention based on the grounds of failing to meet the residency requirement alone. Again, that is the worst case scenario. Both the examining officer and, if a report is made and the matter is heard by the Minister's delegate, the delegate have authority to issue restoration of status (depending on all factors known to the respective officials), though the POE officer must still write the A44(1) report (if, in the officer's opinion, the PR seeking entry has not met the residency requirement) and restoration of status is subject to review by the Minister's delegate. It should be noted that H & C grounds are fairly broad, lenient even, and available at this stage of proceedings. The extent to which the PR has ties in Canada, has evidence of actually establishing residency in Canada and an intent to maintain residency in Canada, may be very helpful in this -- so it would be wise for a returning PR, facing the prospect of removal proceedings based on a failure to meet the residency requirement, to have, in hand, whatever documentation they can gather to show such ties, intent, and so on, ranging from information of family members actually residing in Canada as well as things like a job offer in Canada. Beyond that, both prior to and following the issuance of the A44(1) report, it can be quite complicated. In large part it may depend on the extent to which the PR has failed to meet the residency requirement. Again, the problem for the OP (original poster) here is that more than three years will have elapsed since the OP was last in Canada. No inferences or interpretation of circumstances are necessary to conclude that the OP has failed to meet the residency requirement and cannot meet the residency requirement. Anyone else with this situation looming on the horizon should attempt to make a least an occasional brief trip to Canada, sufficient to avoid a solid three year period of absence. It appears that in the latter situation, that is where it appears that the PR has not met the residency obligation but it is not conclusively indicated by the length of the PR's most recent absence, that it is much more likely that a A44(1) report will initiate an investigation rather than an immediate referral for review before a delegate of the Minister of Public Safety and Emergency Preparedness. In many circumstances an informal adjournment will be done, and the PR will be "asked" to return to for further evaluation. (Again, the OP's problem is that there is no need for further information, as the failure to meet residency is apparent on its face.) In any case, it should be remembered that once the A44(1) report is made, time spent in Canada following that report does not count for residency calculation purposes. The OP (film84) should probably review the discussion of H & C grounds relevant to a determination as to whether or not a failure to meet the precise residency requirements should result in a removal order, recognizing that flexibility is mandated, not just allowed, and thus there is a lot of room for allowing PRs to maintain their status despite technically failing to meet the requirement. See pages 19 to 21 in ENF – 23. It is worth emphasizing that PRs are free to make submissions on any aspect of their personal circumstances that they feel would warrant retention of their permanent resident status. The extent of non-compliance (total number of days short) is explicitly one of the major factors to be considered. That should give this OP some hope, since the OP will fall short of the requirement by just two months. Against this factor, though, the reason for the extended absence (in excess of three years) is also a major factor. The relevancy of several aspects of the latter are noted in the operational manual. There is much more; ENF – 23 is the most important of the manuals anyone facing this circumstance should review. Bottom line, again: A PR must be allowed to enter Canada, even if a PS Minister's delegate is available at the POE to rule on the examining POE officer's A44(1) report, and they continue to be a PR until, at the very least, there is a final adjudication on the removal order. ------------- 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 |
Posted By: pmm
Date Posted: 20 Mar 2010 at 7:43pm
Hi
1. Suggest you re-read the post, nowhere did I say that the person would not be admitted. They are admitted to appeal. 2. You should know that the Minister's representative is the supervisor or manager at the Port when it comes to reports. If there is no supervisor on site, there is a designated supervisor (Min Rep) who is phoned. 3. It is extremely unlikely that if the report is "well founded " (note those 2 words, they come up a lot in 44 reports) that status will be restored. PMM ------------- PMM |
Posted By: coolspy
Date Posted: 20 Mar 2010 at 11:02pm
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Accompanying a Canadian citizen outside Canada Thanks PMM for the relevant documents: It clearly answers on of my previous questions about Canadian accompanying PR? http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf " In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met." |
Posted By: dpenabill
Date Posted: 21 Mar 2010 at 1:53am
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Actually coolspy, I am the one who posted the link to Enf 23. (There is no apparent reason for pmm to have quoted that part of my post, or most of the rest of what pmm quoted of my post. But in any event it is simply a quote of my post.) pmm: I did read your post. You purport to describe "what happens," except, as I said, that is not what happens, it is not true. You posted:
And in response I posted:
For emphasis: your first post glosses over the process, and leaves out the most important part of the process, and that is the review by the minister's delegate. And further leaves out that the PR must be admitted. These, as the saying goes in immigration matters, are material omissions. It also left out the important fact that a PR actually retains permanent resident status until a final adjudication on status, which means the PR can also continue to come and go until there is a final adjudication. And I never said you said that the person would not be admitted. I did not even say your post suggests that. I said "to the extent it suggests . . . " and it does in part suggest it because you purport to be explaining "what happens," and in your version "what happens" does not include being admitted to Canada – and again does so in addition to your leaving out the review by the minister's delegate (and moreover what you describe, even if what was omitted is assumed included, is actually only one of multiple possibilities as to "what happens" when an examining POE officer has an opinion that the PR seeking entry has not satisfied the residency requirement). Sometimes direct answers, even if a bit cryptic, are helpful. Sometimes they are misleading. In this case both of your posts are misleading. Your latter post is also misleading because again you gloss over the process, leaping over important details in it. You say:
What is that supposed to convey? It is like saying that if a person is found guilty of a crime it is extremely unlikely they will be found not guilty. That's called a tautology. While I am not personally acquainted with the exact manner in which this language arises in specific reports, I am pretty sure it is conclusory in nature, as in it is an expression as to the ultimate determination, that the PR seeking admission should be removed for failing to meet the residency requirement. The specific 730 day requirement is not the only consideration underlying that determination. The way you say this, in the context of the query being discussed here, suggests that a failure to meet the 730 day residency requirement itself is all but certain to result in removal. And that is not true. To say that the report is "well founded" is, I am quite sure, a reference to the overall determination being made, and, quite simply, that is not the same thing as determining that the PR has failed to satisfy the 730 day requirement. The former is a conclusion as to whether a removal order should be issued. The latter is merely one factor to be considered in making that determination. In other words, just because a PR approaches entry to Canada and it is clear that they do not meet the 730 day residency requirement, how that plays out is not certain. In particular, each decision-maker involved in a residency obligation determination case is required to assess any H&C factors brought to their attention to determine whether such factors justify retention of permanent resident status, notwithstanding a breach of [the residency obligation]." While the application of H&C grounds is described as an "exceptional response to a particular set of circumstances," what this means in practice is a balancing of the specific factors involved, recognizing again that "officers are obliged to consider all the information presented by a permanent resident." A key factor: "how many days of physical presence in Canada within the five-year period under examination has the permanent resident spent in Canada?" (Note: if 730 or more days total of presence or while accompanying a citizen spouse, this factor does not even come in to play, there is no breach of A28 at all; this factor is explicitly about persons who have fewer than 730 days combined of physical presence, absence in presence of citizen spouse, and days working abroad for a Canadian company – that is, this factor is about assessing persons who have breached the 730 day requirement). There is, little doubt, a huge difference between the person who approaches a POE five days short versus the one who is 705 days short. What about a person, like the OP here, who can show well over 600 days, nearly 700 days, that is, someone who falls about 50 or 60 days short? Again, anyone who might be facing this issue should review the factors spelled out at pages 19 to 21 of ENF – 23. As a practical matter, it is my impression that a great many of the cases officers encounter at the border are not all that difficult, not all that close; it appears that it is common for former PRs and some landed PRs who never really lived in Canada at all, to show up at a POE seeking entry even though many more than three years have elapsed, even though they have minimal if any real ties in Canada. Reports in such cases would indeed bear something akin to a "well founded" characterization, and the minister's delegate's determination is then relatively perfunctory. But the query in this thread was a serious one deserving some attention to the nuances of the process. The OP is in tough straits because of the more than three year absence, but not necessarily without hope. If per chance the OP could make it to Canada sooner, the better that would be, the closer to the 730 threshold the better. ------------- 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 |
Posted By: coolspy
Date Posted: 21 Mar 2010 at 2:05am
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Sorry dpenabill fault on my part. I overlooked who posted the links. Anyways, you deserve the credit as they as very very useful (referenced the right links). |
Posted By: dpenabill
Date Posted: 22 Mar 2010 at 2:00am
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I suppose a caveat is due. Ordinarily, the revocation of status demands a more stringent standard with a significant benefit of doubt favoring the person with such status, than, for example, an application to acquire status. In other words, the burden an individual faces is higher when applying to obtain status, while in contrast the degree of proof necessary for CIC to take away status is in many respects higher. One only needs to peruse the inadmissibility cases to see how this plays out; applicants for PR who are inadmissible face a very high hurdle and are rarely granted status even with relatively strong H&C grounds; but the cases involving PRs who have committed offences for which they are technically "inadmissible" tend to suggest that CIC does not even act to revoke PR status in many such cases and largely pursues the removal of PRs for inadmissibility mostly only in more egregious cases. BUT when it comes to the residency requirement the policy itself recognizes that a great deal of flexibility is hard wired in the minimum requirement: just 730 days in five years, with allowances for PRs living abroad with Canadian citizen partners, as well as PRs working abroad for Canadian employers. So there is less leniency given what might be a so-called technical breach, that is, a breach based on less than 730 days total under any of the ways a PR can be acquiring days to be counted toward residency. It is recognized that the requirement itself is generous and highly flexible. So anyone falling short of the technical requirements really does need some persuasive evidence for the position that PR status should not be revoked. So I hope my previous posts do not give the impression that a failure to meet the 730 minimum requirement will be routinely overlooked. Not at all. Any specific individual case really depends on the particular circumstances of the case . . . and again, for some good direction as to favorable factors that can be of assistance to people in the position of the OP here (film84), see pages 19 to 21 of ENF 23 (url given in posts above), recognizing that probably the biggest hurdle the OP here faces is that blatant three year plus absence, which does not allow any wiggle room whatsoever relative to the breach itself. ------------- 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 |