Losing PR status and H & C grounds article.
Jan 19th 2017, 9:56 am
#1
Lost in BE Cyberspace
Thread Starter
Joined: Nov 2011
Location: Somewhere between Vancouver & St Johns
Posts: 19,849
Losing PR status and H & C grounds article.
I came across this article yesterday regarding how many are reported for loss of PR status and ordered removed from Canada.
https://www.thestar.com/news/immigra...ompliance.html
Now and again we get queries on here from someone who cannot or has failed to meet the 730 day residency requirement.
Basically as a PR you have to be physically present in Canada for 730 days (2 years) in every rolling 5 years. There are exceptions.
There is this myth that say someone has been outside Canada for 5 years as a PR then they have lost their PR status. This is not true.
What is true is that if they returned to Canada then its likely they would be reported for failing to meet the residency obligation and issued with a Departure Order not in force at that time. They then have 30 days plus 7 days postage to appeal this decision.
PR is only legally lost when a decision under section 46(1) a, b, c, d or e has been made. This includes Voluntary Relinquishment.
Most appeals when reported are made under Human & Compassionate grounds but what I did find interesting was that the Immigration lawyer admitted that you only have a 1 in 10 chance of winning an appeal based on the figures he had access to.
Every case is unique and is won or lost on its own merits. There is no one size fits all although there is jurisprudence sometimes made which sets some form of standard or rationale.
Because X won their case doesn't mean you would win yours even if the circumstances are somewhat similar. Now what an appeal would cost if using a lawyer could run into the thousands of dollars with no guarantee at the end.
Its an emotional time but seriously you have to take a step back and think about it if faced with such a situation. Ask yourself Do I really have a good case?
Remember even if reported and appealing and you have made it back to Canada it could take a couple of years for a decision to be made only then to be told you now have to leave the country.
More details on Loss Of PR can be found in this link
http://www.cic.gc.ca/english/resourc.../enf23-eng.pdf
While you may get sympathy on the board from fellow BE posters if found in this position the IRB members have a job to do and don't make decisions on sympathy or statements like well that doesn't seem fair.
https://www.thestar.com/news/immigra...ompliance.html
Now and again we get queries on here from someone who cannot or has failed to meet the 730 day residency requirement.
Basically as a PR you have to be physically present in Canada for 730 days (2 years) in every rolling 5 years. There are exceptions.
There is this myth that say someone has been outside Canada for 5 years as a PR then they have lost their PR status. This is not true.
What is true is that if they returned to Canada then its likely they would be reported for failing to meet the residency obligation and issued with a Departure Order not in force at that time. They then have 30 days plus 7 days postage to appeal this decision.
PR is only legally lost when a decision under section 46(1) a, b, c, d or e has been made. This includes Voluntary Relinquishment.
Most appeals when reported are made under Human & Compassionate grounds but what I did find interesting was that the Immigration lawyer admitted that you only have a 1 in 10 chance of winning an appeal based on the figures he had access to.
Every case is unique and is won or lost on its own merits. There is no one size fits all although there is jurisprudence sometimes made which sets some form of standard or rationale.
Because X won their case doesn't mean you would win yours even if the circumstances are somewhat similar. Now what an appeal would cost if using a lawyer could run into the thousands of dollars with no guarantee at the end.
Its an emotional time but seriously you have to take a step back and think about it if faced with such a situation. Ask yourself Do I really have a good case?
Remember even if reported and appealing and you have made it back to Canada it could take a couple of years for a decision to be made only then to be told you now have to leave the country.
More details on Loss Of PR can be found in this link
http://www.cic.gc.ca/english/resourc.../enf23-eng.pdf
While you may get sympathy on the board from fellow BE posters if found in this position the IRB members have a job to do and don't make decisions on sympathy or statements like well that doesn't seem fair.
Jan 19th 2017, 6:28 pm
#2
Concierge
Joined: Jun 2011
Location: Oakville, ON, CA
Posts: 8,320
Re: Losing PR status and H & C grounds article.
This is super interesting, thanks FL.
If you are considering H&C, it's also worth reading up on case files on CANLII, found here: https://www.canlii.org/en/ca/irb/ (it's a bit of a search to find the ones that dealt with PR being revoked for failing to meet residency requirements, but they're there.)
I read a really interesting one ages back that was actually approved. The PR in question was a middle-aged man who came on a work permit and then got PR. He came on his own, leaving his family in ... I want to say Albania? Anyway, doesn't matter. He was in Canada for a year, and then his father had a heart attack very suddenly so he flew home to deal with that. He was the oldest of a few kids, and stepped up when the father was out of the picture. He took a leave of absence from work and left his apartment vacant, but didn't sublet or cancel the lease. He ended up staying in his home country for a few months while his father recovered, and eventually came back to Canada. He was only in Canada a few months when the father had a second heart attack and then passed away. He had to quit his job that time, but again left the apartment vacant, and because of his father's death and helping to put the family affairs in order (and I gathered from the file that it was pretty complicated) he ended up being out of Canada for nearly two years by the time he went back. When combined with the time he was out of Canada the first time, he had not met his residency obligation, so when he returned to Canada, the officer started the process to revoke his PR and he appealed the decision.
During the time that he was in his home country, he continued to pay rent on his apartment, he continued to file his taxes, he was in touch with his employer, and upon returning to Canada after the second trip he was able to go back to his previous employer.
The board allowed his appeal because they could see that it really was his family circumstances that kept him away from Canada, and even while he was away, he clearly made it his intention that he planned to come back (evidenced by keeping his job the first time, his apartment, his bank accounts, basically everything else about his life - he didn't do anything to signal he did not plan to come back like selling possessions or cancelling his lease), just his family circumstance kept him out longer than he'd planned.
It was a really interesting read and gives a good example of when H&C grounds can lead to an allowed appeal.
If you are considering H&C, it's also worth reading up on case files on CANLII, found here: https://www.canlii.org/en/ca/irb/ (it's a bit of a search to find the ones that dealt with PR being revoked for failing to meet residency requirements, but they're there.)
I read a really interesting one ages back that was actually approved. The PR in question was a middle-aged man who came on a work permit and then got PR. He came on his own, leaving his family in ... I want to say Albania? Anyway, doesn't matter. He was in Canada for a year, and then his father had a heart attack very suddenly so he flew home to deal with that. He was the oldest of a few kids, and stepped up when the father was out of the picture. He took a leave of absence from work and left his apartment vacant, but didn't sublet or cancel the lease. He ended up staying in his home country for a few months while his father recovered, and eventually came back to Canada. He was only in Canada a few months when the father had a second heart attack and then passed away. He had to quit his job that time, but again left the apartment vacant, and because of his father's death and helping to put the family affairs in order (and I gathered from the file that it was pretty complicated) he ended up being out of Canada for nearly two years by the time he went back. When combined with the time he was out of Canada the first time, he had not met his residency obligation, so when he returned to Canada, the officer started the process to revoke his PR and he appealed the decision.
During the time that he was in his home country, he continued to pay rent on his apartment, he continued to file his taxes, he was in touch with his employer, and upon returning to Canada after the second trip he was able to go back to his previous employer.
The board allowed his appeal because they could see that it really was his family circumstances that kept him away from Canada, and even while he was away, he clearly made it his intention that he planned to come back (evidenced by keeping his job the first time, his apartment, his bank accounts, basically everything else about his life - he didn't do anything to signal he did not plan to come back like selling possessions or cancelling his lease), just his family circumstance kept him out longer than he'd planned.
It was a really interesting read and gives a good example of when H&C grounds can lead to an allowed appeal.
Jan 19th 2017, 9:40 pm
#3
Lost in BE Cyberspace
Thread Starter
Joined: Nov 2011
Location: Somewhere between Vancouver & St Johns
Posts: 19,849
Re: Losing PR status and H & C grounds article.
If anybody is interested in searching CanLll go to the website using this link
https://www.canlii.org/en/
Select Canada (Federal) under the browse category
This will give the various courts or boards and tribunals.
Select Federal Court and in the document text search box at the top of the page type in residency obligation and you will find 4963 decisions.
The recent decisions usually contain a few of them.
Go back to the boards and tribunals and select IRB (Immigration & Refugee Board) do the same and you will find 9407 decisions
If still not enough for you then go to the Federal Court Of Appeal do the same and you will find 606 cases.
Caveat the Federal Court and Court Of Appeal cases might not be all residency obligations for PR's under IRPA.
https://www.canlii.org/en/
Select Canada (Federal) under the browse category
This will give the various courts or boards and tribunals.
Select Federal Court and in the document text search box at the top of the page type in residency obligation and you will find 4963 decisions.
The recent decisions usually contain a few of them.
Go back to the boards and tribunals and select IRB (Immigration & Refugee Board) do the same and you will find 9407 decisions
If still not enough for you then go to the Federal Court Of Appeal do the same and you will find 606 cases.
Caveat the Federal Court and Court Of Appeal cases might not be all residency obligations for PR's under IRPA.
Jan 19th 2017, 9:51 pm
#4
BE Forum Addict
Joined: Dec 2012
Location: British Columbia
Posts: 3,263
Re: Losing PR status and H & C grounds article.
As well if you have an IAD near you, you can go and observe appeals.
