geedee

Hello All, haven't visited this part of the forum for quite some time! Hope you're all keeping well and I will be looking out for familiar "names".
I have searched the forum for advice on this, and while there are a couple of recent threads, they don't quite fit my query.

In a nutshell, we lived in Canada from 2007 to 2013. We were given PR towards the end of 2102 (I think!). We loved it!
Anyway, in 2013 the Company I work for relocated my family and I to the other side of the world! At the time we decided we'd try it for up to two years and if it didn't work we'd come back. We weren't far off having enough time in to apply for Citizenship, but due to school timings etc. we had to go when we did.

To cut a long story short, I was never able to get back to Canada but am now thinking of returning. However, the PR cards have long since lapsed and we are nowhere near the 2 years in 5 obligation. The only option we have is the "humanitarian / compassionate" route but don't think that would apply to me (but it might to my wife and kids as they were kind of "forced" to leave with me!!).

I have been in contact with a lawyer (new, the one we had for PR has stopped practicing) and the first question they asked was "is the Company Canadian"? Well, no, it's a British company with offices all over the place - we did have an office in Canada, the Company did pay tax there, obviously, but it is a UK company with satellite offices. The decision to relocate us came from the UK Head Office, not Canada.

So the lawyer I'm in touch with responded quickly but charges $500 for initial consultation - I'd obviously rather keep that in my pocket if we have no chance and need to relinquish PR.

I'd be very grateful for any advice, guidance or opinions from you guys.

Cheers.

christmasoompa

Whether the company was Canadian or not was going to be my first question too!

In all honesty, I can't see how H&C grounds would apply to any of you. It can be used as ground for an appeal against losing PR status from outside Canada, but rarely works unless you can show that there is an extreme reason for not being able to return to Canada i.e. you were in a coma etc, that you have maintained ties to Canada (doesn't sound as though you have) and intended to return at the first opportunity. As you could actually have returned at any time, I don't see what grounds you have tbh.

The IAD say the following "if absent from Canada for family reasons (i.e., illness, death, etc.), this will be far more compelling than absence for financial reasons (i.e., did not leave employment in country of origin, did not find employment in Canada, etc)".

The IAD has provided a non- exhaustive list of factors that may be considered in assessing H&C merit:

1. (i) the extent of the non-compliance with the residency obligation;
   
2. (ii) the reasons for the departure and stay abroad;
   
3. (iii) the degree of establishment in Canada, initially and at the time of hearing;
   
4. (iv) family ties to Canada;
   
5. (v) whether attempts to return to Canada were made at the first opportunity;
   
6. (vi) hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada;
   
7. (vii) hardship to the appellant if removed from or refused admissions to Canada; and.
   
8. (viii) whether there are other unique or special circumstances that merit special relief.

Sorry but I just don't see that any of those would apply to you from what you've said.

But have you checked to see if you'd be eligible for PR under the new rules? Obviously things have changed a lot since you first applied. If you are, then I'd just go that route as it will be much quicker/easier/cheaper than trying anything else. If you're not eligible for any other visa route to Canada now then it may be worth giving a H&C application a go as an appeal against lost PR status, but it won't be cheap or easy, and I'd only do it as a last resort.

geedee

Thanks Christmasoompa..... think you might have just saved me 500 bucks!
I'll look at the new PR requirements and see how we fare.

Just feel sorry for the kids.... they consider themselves Canadian!

Cheers

Revin Kevin

Depending on the age of your children they could have a good H&C case for retention of their PR on the grounds of having been removed as minors from Canada and consequently losing their PR though no fault of their own - it wouldn't help you though.

geedee

Thanks Revin, kids were minors when we left, I'll look into it. Both would prefer to be Canadian than British (passports they have now)!

catweazle

Don't forget that you & yours are still PRs, even though you no longer comply
with the residency requirements. Only your PR card expired, not your status.
You will remain PRs until you either give up the status, or it is taken away
from you.

It's an open secret that there is no residency requirement enforcement INSIDE
Canada. Once you are in, and not "reported", you are a PR just like all others.
By staying in Canada long enough (two years) you will eventually comply again
with the residency requirement. To my knowledge, there is not a single rule,
regulation or law that forbids this.

The challenge for you then, is to get into Canada without being reported.
Ever since ETAs were brought in, most PRs require either a valid PR card or
a PR Travel Document from a Canadian mission abroad. When you apply for the
PRTD you will almost certainly be denied, causing the loss of your PR status.

You could get yourself to the Canadian border by flying into a US airport
close to Canada, for example Buffalo or Seattle, and drive. Once there,
you could plead your case in person with a Canadian border officer. Tell them
you're PRs and no longer comply, but explain your specific case. Definitely do
not make the mistake of lying. Depending on the officer you get that day, you
will either be written up, or allowed to proceed.

If allowed to proceed, you can follow the strategy outlined above, where you
do not leave Canada for at least two years. To the best of my knowledge, this
is completely legal and above board. You do not need a PR card INSIDE Canada,
your COPR is sufficient for all purposes.

If written up, you will still be allowed entry into Canada - after all, you are
still a PR! You will have to appear later and your status will then almost
certainly be taken away from you. However, you still have the opportunity to
lodge a H&C application. This is also completely legal, as long as you don't
stick around after your PR status is taken away, obviously.

Chances of being written up are high yet not 100%, but you have nothing
to lose, except the time and expense getting to the Canadian border via the US.

Former Lancastrian

I certainly disagree with this last bit. Nothing to lose is somewhat disingenuous. So they make their way to the border and are written up and issued with a conditional removal order. They then have 30 days to submit an appeal to the Immigration Appeal Division. Once the appeal is submitted then the removal order is not enforceable until a decision is made on the appeal. So the family continue their day to day lives, parents have jobs, kids go to school, they retain a lawyer for their appeal and family might even buy a house. Then around 12 to 24 months later the appeal is heard and the decision is to dismiss the appeal and the removal order now comes into force meaning they now have to leave Canada.
How is that nothing to lose?

christmasoompa

+1. No chance an immi officer isn't going to enforce the law and report the family if they know they don't meet residency obligations, so it's just making it worse IMO, the kids will then have another year or so in Canada before potentially being kicked out if they don't win an appeal on H&C grounds. I personally wouldn't do that to my kids.

And re: the mention of kids having H&C grounds, how old are the children? Bear in mind that if you tried to appeal under H&C grounds for just the children you'd have to prove that it's in their best interests, and that not granting the PR would result in "unusual and undeserved or disproportionate hardship". Given that it would mean them being separated from their parents who wouldn't be able to stay in Canada, I can't see how that would be a valid argument?

As I said above, the first thing I'd do would be to look at if the family could get PR now, as it would be much quicker/easier/cheaper to just rescind PR and reapply. Only if that's not possible would I then start considering trying to enter Canada and then appealing under H&C grounds, it would cost a small fortune in lawyers fees and be incredibly disruptive to the children to do that.

geedee

Hello again.
Catweazle, many thanks for your thorough and well-intentioned post, but we'd be coming from Malaysia and it would actually cost a lot more in travel costs than a consultation with a lawyer. Further if we got in we'd have to stay and work-wise that's not an option. I'd need to know beforehand we could get in and be welcomed back!! Then plan accordingly.

Christmasoompa, FL, thanks both - you both contributed to a thread I posted when our PR Cards expired - I had a vague recollection of getting some good advice here previously and went back to find it - all the way beck to the end of 2016!! If you're at a loose end, the closed thread is here:

Well, that's that then!

I might just think a bit harder about losing 500 bucks on a consultation - it's only money....

christmasoompa

I've just skimmed that thread and am now thoroughly confused - what happened to the plan for your wife/kids to stay in Canada long enough to keep PR? Did they stay or not?

geedee

Good question - I see I never gave the end of the story in the thread!

Basically although they only needed a month or so to stay extra (after the 6 weeks they'd had there on holiday!) the kids didn't want to stay - they loved Canada and being there but they didn't want to miss a month or so of school.
Although it was explained to them they might lose PR, they wanted to be back in time for school. Things like PR didn't mean much to them at the time.

My wife didn't want to stay to finish hers off for a few reasons. She (we) were worried about the kids making such a long journey back on their own. She was concerned about me looking after them (and the big dog that came with us from Canada and two cats) on my own for so long - I would also have had to use up my full annual vacation time, plus some more, to do so - I travel quite a bit in my job and can be away for lengthy periods on occasion. I had things going on at work which meant I couldn't really take holiday at the time, which was why I didn't go on holiday with them. Plus she knew I had "lost" mine and perhaps thought she wouldn't want to go back without me (Aaahhh)!

There was something else about the 'rolling" 5 years that I think meant they didn't have long out of Canada again before needing to go back, and our daughter was at an age where we didn't really want her changing schools if we could help it.

Whatever, it didn't come off. In hindsight, a pity, but as always we do what we think's right at the time - and sometimes live to regret it later!

Will keep exploring and let you all know how things go.....

catweazle

I certainly agree that an appeal from inside Canada is highly problematic for people with a reasonable chance of H&C appeal success. Compared to the alternatives.

However, if one's H&C chances are non-existent, it becomes a choice between giving up PR yourself, and this last-ditch attempt. In this case, I stand by my opinion that there's nothing to lose, except time and expense. The worst-case outcomes are identical: PR is lost in a legal and above-board way, without prejudice.

catweazle

ChristmasOompa, do you have any empirical evidence for this statement?

From what I understand, the regulations allow, but do not compel, immigration officers to enforce the residency requirements at the POE. They have much more flexibility in making a decision than the bureaucrats at IRCC. There have been quite a few instances where immigration officers do give non-compliant PRs a second chance. Which is perfectly within their remit. How often this happens is anyone's guess. But I'd wager that chances are much better than getting a PRTD.

YMMV.

catweazle

It does sound like you have much better options than the "hack" I proposed. Especially if you can reapply for PR. Good luck and all the best to you & your family !

christmasoompa

OK, shame they didn't stay but thanks for updating. Having read that thread, I think it's worth exploring with a lawyer the chances of you arguing you were sent abroad to work by a Canadian company again. But I'd still check out PR options first (for free before spending $500!) just in case you would be eligible now.

I'm sure FL (who is a CBSA officer) will comment on how likely he is to allow somebody in that hasn't come close to meeting the residency obligation. As a bureaucrat, I'll defer to his view.