Can the principal applicant maintain the status and the spouse not?

[karthit]

Hi
I wanted some urgent advice on a rather peculiar situation! Both my wife and myself landed in Canada in Dec 2008 and got our PR cards after staying here for 15 days. I came back to Canada in Sep 2011 and have been here ever since. My wife visited me for 15 days in Dec 2011 and went back to her home country. Her PR card expires on Jan 19, 2014 and she has so far had a physical presence of only 30 days in Canada whereas I have spent 140 days! If she comes back to Canada in a month's time alone (not accompanied by me!) she wont be able to satisfy the 730 day requirement before Jan 19, 2014, though I will still be able to. Will they allow here to enter the country next month because I will anyway satisfy though I am not accompanying her??

[karthit]

Not sure if the question was not clear?

I am mainly referring to the point mentioned below:

In accordance with R61(5), and in connection with A28(2)(a)(iv), a permanent resident complies with the residency obligation so long as the permanent resident they are accompanying is their spouse or common-law partner or parent, and that spouse or common-law partner or parent is in compliance with their residency obligation.
Put another way, an accompanying permanent resident may count days of physical presence in Canada—while accompanying another permanent resident—only if the permanent resident they are accompanying meets the prescribed conditions as specified in A28(2)(a)(iv) and is in compliance with their own residency obligation.

In my case, since I wont accompany my wife when she enters Canada, will my residence days still help her in proving residency?

[Leon]

Small misunderstanding here.  They are not referring to accompanying as you travelling with her, they are referring to her accompanying you as you both live in another country.  The days of residency can also not be passed over by playing tag with you meeting your requirements, then going to her and tagging your days on her.  It is a bit more complicated.  A PR who is staying abroad can meet the requirements if 1) their spouse is a Canadian citizen and they are living abroad together or 2) this PR is working for a Canadian employer who has transferred him/her to another country for work or 3) this PR is the spouse of a person who meets the requirements because of 2) and they are living abroad together.

If your wife does not fall into any of the 3 categories above, she will not meet the requirements.  Immigration however is not all seeing and all knowing.  If they let her in without any comment, she is still a PR until somebody tells her otherwise.  If that would be the case, that is her getting in, she should not leave again but stay until she meets the requirements.  This might mean that her PR card must expire before she can apply to renew.  When she fills out the application, she will have to list her time in the 5 years previous to the application and she should meet the requirements during those 5 years.  If she does not, she should wait to apply.  Having an expired PR card while staying in Canada is not a problem.

[karthit]

Thanks a lot Leon for clarifying this. From what I can understand from your statement, since my wife does not satisfy either of the 3 conditions you have mentioned, it would always be a risk whenever she tries to enter Canada. However, every time a person enters do they really calculate based on the PR card expiry date on whether they will be able to complete 730 days or do they not really bother as long as the PR card is valid at the moment of entry? 

[Leon]

Thanks a lot Leon for clarifying this. From what I can understand from your statement, since my wife does not satisfy either of the 3 conditions you have mentioned, it would always be a risk whenever she tries to enter Canada. However, every time a person enters do they really calculate based on the PR card expiry date on whether they will be able to complete 730 days or do they not really bother as long as the PR card is valid at the moment of entry? 

They may have an idea that a person does not meet the requirements.  Sometimes they may give them a stern talking to.  They do have the option of reporting someone for not meeting the requirements in which case they would let them enter Canada in order to prepare their appeal for their PR but if you do not meet the residency requirements and have no H&C grounds like taking care of sick relative or such, the person would most likely lose the appeal and lose their PR.  However, even though they do have the option of reporting people, it does not seem to happen very often.

If your wife loses her PR, your backup option would be that you can sponsor her again.

[karthit]

Thanks a ton for your clarification Leon. Really appreciate it.