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Entry into Canada and Permanent Residence

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=2043
Printed Date: 28 Mar 2024 at 9:54am


Topic: Entry into Canada and Permanent Residence
Posted By: pratik.e
Subject: Entry into Canada and Permanent Residence
Date Posted: 11 Apr 2010 at 7:16am
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I am currently a high school student in my senior year and will be attending university in Canada in the fall of 2010. Late last year I applied to several universities in Canada including University of Toronto and McGill University. I received letters of acceptance from all of them and now, having decided to go to University of Toronto, I have a few questions regarding my status in Canada.
My family and I received permanent residence status in Canada in May 2006. However, from that date to May 2011, when the PR card expires, three out of four members of my family, including me, will not be completing the required 730 days to retain the PR residency. In this situation, I would like to know whether I can renew my PR card upon entering Canada, whether I can enter the country for the fall term with a PR card and then obtain a student visa when the PR card expires in May, or whether I will have to obtain a student visa when to enter the country when I go to attend the fall term.



Replies:
Posted By: canvis2006
Date Posted: 11 Apr 2010 at 12:05pm
You can't extend a PR Card if you have not met the residency obligations of PR status. It seems 3 of you have LOST the PR status already.

If you all come back to Canada right now, you MAY be able to save your PR status, that's if you get in without being written up for non-compliance by Immigration Canada.

If they write you up for non-compliance, you will be allowed in, and then have a hearing with the immigration board, for which you may need a good immigration lawyer. If you win you will be allowed to retain your PR status and will be allowed to stay as PR. If not, you will have to leave the country.

If you relinquish your PR status, be ready to pay the international student tuition fees if you will be studying on a student visa.....those are alot more than what regular residents pay. Not to mention being subject to documentary proof of financial stability, etc

It can be easier for you to come in now and try to save your PR, and have a easier time to study as a canadian resident.....

Alot of changes have been made to immigration skilled worker class, its not as easy and open as it used to be.....


Posted By: pmm
Date Posted: 11 Apr 2010 at 2:32pm
Hi

Originally posted by canvis2006 canvis2006 wrote:

You can't extend a PR Card if you have not met the residency obligations of PR status. It seems 3 of you have LOST the PR status already.

If you all come back to Canada right now, you MAY be able to save your PR status, that's if you get in without being written up for non-compliance by Immigration Canada.

If they write you up for non-compliance, you will be allowed in, and then have a hearing with the immigration board, for which you may need a good immigration lawyer. If you win you will be allowed to retain your PR status and will be allowed to stay as PR. If not, you will have to leave the country.

If you relinquish your PR status, be ready to pay the international student tuition fees if you will be studying on a student visa.....those are alot more than what regular residents pay. Not to mention being subject to documentary proof of financial stability, etc

It can be easier for you to come in now and try to save your PR, and have a easier time to study as a canadian resident.....

Alot of changes have been made to immigration skilled worker class, its not as easy and open as it used to be.....


It is quite likely that CIC/CHC will not issue a study permit as you still (technically) have PR status. They will probably insist that you either apply for a Travel Document or voluntarily relinquish your PR status.

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PMM


Posted By: dpenabill
Date Posted: 13 Apr 2010 at 1:26am
Foremost: you absolutely do NOT need a TD (travel document) so long as your PR card is valid. It would be foolish to apply for one, foremost because it would be totally unnecesary, but also because by doing so that would draw attention to your case.

Again, though, that is dependent on your PR card being valid up to the date you travel.

The real question is how soon you can arrive in Canada and how many days you have been in Canada, so far, plus how many days are left before the fifth anniversary of your landing.

That is, the measure (for you) of 730 days.

I am guessing that even that will total less than 730 days. In that case, the last thing you want to do is draw attention to yourself.

Here's why: Nothwithstanding that measure, from what you say it appears your PR card will be valid until May 2011. The sooner you arrive in Canada, the less likely you will be subjected to a residence qualification examination. If you arrive in Canada and are allowed entry (which would be routine for a PR displaying their PR card), you are good to go, good to stay in school (as a PR, obviously, you need no permit to attend school in Canada), and indeed then the "730 day" requirement is not likely to arise relative to you unless and until you leave and attempt to return.

So if you if come, are allowed entry, go to school, and accumulate 730 days of actual in country residence, you are then OK, good to go, a PR who meets the PR residency requirement.

Your real risk is if they examine you at the POE about your time in Canada versus your time away, and if you do not have enough days left before the five year anniversary to add up to a total of 730 days.

Personally, if it was me, & still in that first five year period, I'd have the tendency to be in a big hurry, and say, well, "I was with my parents earlier and I do not really recall how many days here or there, but Canada is my home, and, well, if you have questions about how long I have been in Canada and out of Canada, you can call me later and ask, but I'd like to be on my way today."

Of course it may not be that easy, NOT at all. But, bottom line, if you have the demeanor of "what are you talking about" and "yeah, of course I am a permanent resident of Canada, and I am coming home" . . . and you refuse to give them exact dates (for whatever reason . . . DO NOT LIE . . . as a PR you can be evasive but you cannot lie) the key is whether or not they do the "report" on you . . . they may (and the sooner you arrive with more time left on your PR card the more likely this will happen) just allow you to enter . . . or they may make a report (in which case you have real problems . . . problems which can, however, be extended for quite some time through the appeal process).

I am not at all sure, but I very much suspect that it makes a huge difference if you have a still valid, unexpired PR card. If you do have a valid card, the more time that is left on the card the better, the better the odds you come in without question, without a report, without removal proceedings.

BIG BOTTOM LINE: Foremost, you are a PR. You do not need a "study permit" to study in Canada. Your PR status may be at risk, but if they allow you to enter without proceeding for removal, you are really good to go. You stay, you study, your time in Canada adds up to 730 days, your PR status remains intact. A great deal depends on how things go done upon your arrival in Canada. There is a very good chance you show your PR card, you enter, and you are good to stay, to study, you are a Canadian. This is, after all, a remarkably diverse country.



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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: Beaver
Date Posted: 13 Apr 2010 at 12:04pm
Even by just applying for a PR card renewal, there will be lots of questions you need to answer (absences from Canada one of the most important).
 
I agree with what dpenabill said. Pratik.e, if you return for Fall classes this year, your PR card will still be valid. No need for any other visa. You are a PR and you can work or study, (or get lazy) if you like.  I cannot say if you met the minimum to retain your PR status, though, since the information you have given is not complete for us to properly analyze the extent of your issue.  If you could please share with us the dates you entered and exited Canada from the time you landed up to the present, that would be helpful.


Posted By: pratik.e
Date Posted: 14 Apr 2010 at 2:46am
In response to Beaver and dpenabill:

When my parents acquired these PR cards for us we had intentions to move to Canada, and to live and work there. Unfortunately, these plans weren't realised and since landing in Canada to receive the card in May of 2006, I don't think I have completed more than a week or two.

When the PR card expires in May 2011, and I am no more a permanent resident, will I then need to get myself some sort of visa to continue studying in Canada?


Posted By: dpenabill
Date Posted: 14 Apr 2010 at 2:19pm
KEYs:
1. You are already in breach of the residency requirement, since you cannot have spent 730 days in Canada during your first five years following landing.

2. Your PR status remains, however, unless and until there is a formal adjudication to remove you.

3. That process, however, may very well take place (but for the appeal process) at the POE upon your entry into Canada.

4. Thus, your FUTURE status mostly depends whether or not, upon your entry into Canada, an A44(1) report is generated and a removal order is issued.

5. Even if a removal order is issued at the POE, YOU ARE ALLOWED ENTRY AND YOU CONTINUE TO HAVE PR STATUS for 30 days minimum, and if you appeal (which you should) you continue to retain your PR status during the appeal process.


I am not at all familiar with how long the appeal process is in such circumstances, but I suspect it would be long enough to complete the first year of your studies -- but, again, I am not sure of this. If your PR card were to expire during this period of time, you can usually obtain a renewal but it would only be for a more limited period of time (a year I think).

As to the process itself, see the following manual:
ENF 23 – Loss of Permanent Resident Status
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf

Again, if you are questioned as to residency upon entry there is (it appears) a high probability that a A44(1) report will be made and referred to the minister's delegate and a "removal order" issued, which has no immediate force or effect but which you must "appeal" within 30 days or it will take effect. This is essentially the process through which your PR status will be revoked. While there are often many H&C grounds for which PR status might not be revoked, frankly, in your circumstances it does not sound like you'd have much if any argument here.

Another caveat: Canada has upgraded and extended its overseas . . . I forget their name, but they serve, in essence, a screening function in cooperation with airport and airline personnel at many foreign airports from which flights bound for Canada depart, and it is possible to be questioned even before you are allowed to board a plane BUT I really do not know how this is done in practice or to what extent someone with a valid PR card might be subjected to pre-boarding screening in this way.   


FURTHER OBSERVATIONS regarding entry:

You are still a PR. So you are entitled to enter Canada as such (unless there are grounds for inadmissibility other than the breach of the residency requirement.

As I said, however, you are already in breach of the residency requirement, since you cannot have spent 730 days in Canada during your first five years following landing. When you attempt to enter Canada you may be subjected to questioning about your residency in Canada. You also, however, might not be subjected to such questioning.

I do not know, and I doubt anyone can say with any degree of certainty, whether or not you will be questioned about residency. It probably depends on a lot of factors.

Assuming you arrive while your PR card is still valid, that alone, may facilitate entry without being subjected to questions about meeting the residency qualification -- but I believe several things could trigger an examination into whether or not you meet the residency requirement. For example: "where do you live?" A foreign address may trigger more questions. Or, your travel documents may, on their face, indicate that you have been outside of Canada for three years or more. Again, I do not really know what the chances are of being questioned about residency.

Unfortunately, it appears, the tactic I suggested earlier, about being evasive as to how long you have been in Canada, is probably a bad idea for you . . . if you had spent any significant time at all in Canada, that tactic might work (it would, in effect, require them to follow up with an investigation rather than issue the A44(1) report on the spot) but where you have spent so little time in Canada that would amount to misrepresentation and you do not want to engage in any misrepresentation (that could result in inadmissibility on other grounds and in effect accelerate your removal).

Technically you do not have to answer questions at the POE about how long you have spent in Canada (once they establish that you are a PR you are entitled to entry), but to do so in your circumstances is almost certain to result in the immediate issuance of the A44(1) report, and being uncooperative is a sure-fire way to make sure they pursue removal against you with diligence.


Since you do have a valid PR card, and the longer that is valid for at the time you arrive at the POE, there is (my best guess, emphasis on it being a "guess") a pretty good chance you will be allowed into Canada without being questioned closely about time of residency/presence in Canada.

It is a gamble. Perhaps a pretty big gamble. But the payoff is this:

If you are allowed to enter Canada without the A44(1) report being issued, you are *in*. All you would have to do then, in order to keep your PR status permanently, is simply not leave Canada for 730 days, and NOT apply for renewal of your PR card until after 730 days of actual presence in Canada. Yes, I realize this would mean you will have to go from May 2011 until well beyond 730 days from the day you enter Canada without a valid PR card . . . but your PR status will remain even if your card is not valid. You will obviously not be able to travel outside Canada during this period. But once you have stayed for two straight years, the fact that you were previously in breach of the residency requirement is of absolutely no effect (at least under current law . . . which is always subject to change).

This is all a bit complicated, I realize, and for most young people, for almost anyone, this might seem like more risk and work than they are willing to take. But if you want to live and study in Canada, it seems worth pursuing to me.

I definitefully recommend that you go to the enforcement manual and peruse that. Other CIC manuals you may want to look at:

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, again, the most important one:
ENF 23 – Loss of Permanent Resident Status
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf




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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: dpenabill
Date Posted: 14 Apr 2010 at 2:34pm
Sorry, I should add two more caveats:

1. The likelihood of being examined as to the residency requirement may be elevated in your case since it is fairly likely that the lack of entries into Canada since four years ago may be immediately apparent to the PIL officer -- CBSA travel record on the officer's computer monitor -- and of course three years continuous absence is, in itself, a prima facie indication of a breach of the residency requirement.

2. I forgot to emphasize (or make clear), that while ordinarily once a PR is in Canada, they can accumulate 730 days of presence and then be in compliance with the residency requirement no matter how long they were previously outside Canada, if the A44(1) report is issued, time in Canada following that will NOT count toward meeting the residency requirement.

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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: pratik.e
Date Posted: 15 Apr 2010 at 6:07am
I have studied ENF23 fairly carefully. It doesn't however mention anything about proceedings if a person, a student in my case, chooses to voluntarily relinquish PR status and then remain in Canada as an international student. Is it better to relinquish this before I arrive at the POE and obtain a student visa before landing

Also if I choose to proceed with voluntary relinquishment, need I just mention this to the Immigration Officers at their desk or is there more formal procedure


Posted By: dpenabill
Date Posted: 15 Apr 2010 at 6:04pm
I do not know the practical pros and cons of relinquishing PR. You might want to start a new thread titled something like that, as in "pros and cons of relinquishing PR status" to bring attention to this particular issue -- hopefully someone with more direct experience (or at least expertise) in that side of things will offer some insight.

It is, however, a specific inquiry for which you may not find much practical information; perhaps you should pursue talking to a Canadian immigration lawyer . . . recognizing, however, that is not easily done from abroad.

There are a number of practical contingencies in your circumstances, several branches of "what-if . . . " The direction things will go relative to many of those branches cannot be predicted all that reliably. A lawyer may be of some assistance.

Good luck.

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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: pratik.e
Date Posted: 24 Apr 2010 at 5:52am
I have a few more inquiries involving the appeal process, should a report be made when I enter Canada.

1. Will I need a lawyer of some sort for this appeal?
2. Should this appeal be unsuccessful, ie, my PR status is withdrawn, will I have to leave Canada or will I be able to continue studying under some other legal status in the country?

Thanks


Posted By: dpenabill
Date Posted: 24 Apr 2010 at 4:58pm
Assumption for following remarks:
Quote Assuming your PR card is valid, you are allowed to board a plane destined for Canada (see previous post in which I cautioned that Canada has upgraded its overseas screening process at many airports), and that upon approaching the PIL in Canada you are referred to secondary at the POE and questioned as to meeting the residency obligation, and then a report is issued followed by referral (on-site usually, at least at any major airport during regular hours) to the minister's delegate and a removal order is issued:


Foremost: in that process, at the POE, be sure to make an H & C argument -- I don't have a link or url handy, but research the available H & C grounds for this and prepare your best argument before you even go . . . perhaps something along the lines that since landing you always intended to maintain your residency in Canada but had to go abroad because of your parents and you are returning to Canada as soon as possible. But research this for yourself and prepare your personal best argument.

OK, re your specific questions --

Lawyering up --
No, you do not need a lawyer. It would probably be of much help to have a lawyer, but of course expense looms as a very large factor for most people. If you can research cases and the operational manuals and so on for yourself, and are fluent in either English or French (appears you are in English), you can probably competently represent yourself without a lawyer. So, if you can afford one, get a lawyer. If not, do a lot of research and preparation.

You can definitely send in the notice to commence the appeal without obtaining a lawyer first. Be absolutely sure to get that done less than 30 days from the date they issue the removal order -- suggest you not cut this close, give yourself some margin.

Re failure of the appeal --

If you have not lawyered up to this stage, this is when you probably would want to at least consult with a lawyer (many will give a consultation at their usual hourly rate, for time in consultation plus time to open a file) to ask about prospective avenues to obtain some other status to continue your studies.

A further appeal (as in an application for review) may be made to the Federal Court, though a lawyer would be almost certainly required for this . . . but where H&C grounds are at play, there may be enough flexibility in things for this to actually make sense.

While your time in Canada following the issuance of the report will NOT count as days of residency toward meeting the residency obligation, the longer you are in Canada and the more of your studies you have completed, I believe that would have some weight in a decision-maker's evaluation of the equities including specifically the assessment of H&C grounds, so the longer you can delay the appeal process before a removal order becomes enforceable, probably the better your odds are.

However, I do not know how the process goes once the appeal is denied . . . I'd suggest reviewing the relevant enforcement manuals for the various types and procedures involved in the issuance of removal orders; Appendix C to ENF 3 as well as ENF 10 ("Removals") and ENF 11 ("Verifying Departure"). Just remember that the ENF manuals do not tell the full story and do not flesh out the practical application.

That said, I believe you may have an opportunity to apply for a TRP but I am not at all sure about this. Others here are much more familiar with the vagaries of the TRP and under what circumstances one might be obtained.

There may be various ways to apply for either an extended stay or other status. Perhaps others are more familiar with this. If you do not get an answer here, continue to do your research and/or consult with a lawyer (I think this is too complicated, to particular, to get much from most consultants, so I'd lean toward spending money on a lawyer rather than a consultant for this).

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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: EaraL
Date Posted: 26 Apr 2010 at 10:00pm
hi guys i have few questions to ask:

i will be having my interview on 26 of May and im going back to Philippines in the same day right after my interview...is that gonna be possible to happen?
the paper that the immigration will be giving is not valid to show in coming back to canada...
is there anybody who have tried my situation???
pls give advice
thanks
have a great night!!!


Posted By: nav mann
Date Posted: 04 Sep 2010 at 11:40am
HI EAREL,
perhaps u should open a new thread for ur topic, there u will be suggested better, have a nice day


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mann



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