The long explanation coming round to this . . .
With so much uncertainty at hand, it's terrifying to know the kind of impact that can change the courses of families based entirely on a single decision made by an IRCC officer. Rather unimaginable if you think about it deeply enough. I wish it was a little bit more direct and clear.
. . .
and a bit of editorial commentary:
Actually, as noted above, the rule, the law, the policy, is direct and clear: PR status is granted so the individual can come to Canada to establish a permanent residence in Canada (not just obtain the status of being a Canadian; noting that PRs are "
Canadians").
The implementation and enforcement of the law, including the policy and purpose of the law, however, allows for a lot of flexibility and leniency. The Canadian government allows Canadians a wide range of flexibility in managing their own lives. This is illustrated by and evident in the PR Residency Obligation itself: PRs can actually live abroad more than they live in Canada (up to three years out of five) and still keep their PR status, NO questions asked, no need to explain let alone justify the reason for spending most of one's life outside Canada.
The 2/5 RO is not intended to facilitate a lifestyle where the individual does not fully settle permanently in Canada, living outside Canada more than in Canada.
BUT it ALLOWS it. It is intended to allow individual PRs the ability to personally navigate the highly variable contingencies encountered in real life, including attending to family needs abroad or to deal with emergencies, even employment opportunities abroad, without having to answer to the Canadian government. PRs get to choose their own priorities. PRs are not subject to getting IRCC approval, not confined by any "
decision made by an IRCC officer," but, rather, PRs can decide for themselves if and when circumstances weigh in favour of living outside Canada for an extended period of time . . . up to three years in any five (with fairly liberal and lenient, oft times rather generous allowances beyond that, for "H&C" reasons . . . and allowances for additional "
exceptions" like employment abroad for a Canadian business or when "
accompanying" a citizen spouse).
[footnote: this is NOT about my opinion, not about what I believe the law's policy or purpose should be, not about what I think the law "should be;" these observations are derived from extensive reading and research into how the law has been interpreted and applied in official proceedings.]
There is often a difference between the purpose of a system of laws (like those governing immigration), the laws' objectives, versus what the law allows. The latter, what the law allows, particularly in many more progressive, democratic, more or less "
liberal" countries, like Canada, is often far broader than the particular objectives or purpose of the law.
There can be a tendency to approach the
rules, so to say, oriented to what they allow with minimal regard for what the law, what the
rules, intend. As humans, after all, we see the world from our own individual perspective, focused on navigating our own path. We generally approach the rules in a way that works for us.
In regards to rules like the PR RO, the 2/5 rule,
that is fine so long as the PR actually stays inside the lines. The lines, again, being very widely drawn, giving individual PRs total discretion to decide for themselves if and when they need to spend a lengthy time abroad, up to three years in five and, moreover, allowing additional "
exceptions" . . . such as the one at issue here: the RO credit allowed for a PR who "
accompanies" their Canadian citizen spouse abroad.
What Is NOT So Clear:
It is not clear what circumstances will trigger consideration of
who-accompanied-whom, either by CBSA (in conducting a Port-of-Entry RO compliance examination) or IRCC (in a visa office processing a PR Travel Document application, or internal office processing a PR card application).
More problematic is that it is also NOT clear what the parameters are in determining whether the PR was accompanying their Canadian citizen spouse when
who-accompanied-whom is at issue.
I generally try to steer clear of commenting on what the law "
should be," with some exceptions. But I will, for example, say the law should be consistent, uniformly applied, and reasonably predictable. If, as here, there are three completely different approaches to how the law is applied, and there is no way to know in advance which approach will be applied, that's a problem. That's something in need of a fix. For one thing, an important thing, this invariably leads to different outcomes for people otherwise substantively in the same situation, which fits squarely into any definition of injustice.
That Said . . . in some respects, it might make more sense to focus on whether the circumstances show the that either of the spouses was "
accompanying" the other, not a matter of
who-accompanied-whom but, rather, whether either was actually "
accompanying" the other.
I, and others, often address this topic in terms of what triggers consideration of the
who-accompanied-whom question, but it may be helpful to recognize that the circumstances in which this issue arises tend to be, if not overwhelmingly so, circumstances in which it patently appears that the individuals were NOT accompanying one another in arriving at the place where they may be living together abroad, but rather the citizen more or less joined the PR abroad (the most common scenario where this issue arises, usually the PR's home country) or otherwise the couple came together abroad, NEITHER "
accompanying" (in even a very broad, general sense of what "
accompanying" means) the other there.
As I previously, and in other topics have repeatedly noted, for a couple who are settled and living in Canada BEFORE moving abroad together, and "
ordinarily" living together (over the course of their relationship, not just two years), the risk of encountering a
who-accompanied-whom problem is very low, virtually minimal.
Regardless why they moved abroad; regardless for which one's reasons they made the move.
Actual enforcement tends to be significantly less strict than that. Which is more about what the law and its implementation allow, not about the purpose or intent of the law and its enforcement.
So, I still diverge from how
@scylla framed it:
"If the primary reason for living outside of Canada is due to the permanent resident's employment then this doesn't technically fit the rule and you shouldn't assume IRCC will let you count it."
But it may be fair to say that if the PR and citizen were not actually
accompanying one another in going abroad, perhaps it is rather obvious that there is a risk of NOT getting credit for "
accompanying" the citizen abroad, that as
@scylla put it, the PR
shouldn't assume IRCC will let the PR
count it.
That is, in the latter situation, in cases where one might say it appears that neither was
accompanying the other, yeah, it is difficult to know for sure whether the credit will be allowed for periods of time the couple were living together abroad . . . for now the PR bears the risk.
One last comment in regards to what can "
change the courses of families based entirely on a single decision made by an IRCC officer." Fortunately that is NOT how things work in Canada. If an IRCC officer, in a visa office, denies a PR Travel Document based on applying the more strict approach to the
accompanying-citizen-spouse credit, the PR has a right of appeal and as long as the PR appeals it will require the decision of a reviewing IAD panel to cause the PR to lose status.
There is an additional level of review for PRs in Canada, including those being examined in a Canadian Port-of-Entry. The 44(1) Report procedure must be followed (for either a PoE examination or for a PR in Canada applying for a PR card), and this requires one officer making the decision to prepare the Report, and then a second officer (called a "Minister's Delegate, but who is just another officer) deciding whether that Report is valid in law, and whether H&C relief should be allowed, before a decision to terminate PR status is made. AND if that happens, there is a decision to terminate PR status, the PR still has the right of appeal and it will be up to an IAD panel to decide.
Difference between PR TD process and the in-Canada process is that a PR abroad who does not have a PR card is presumed to not be a PR.
In any event, what happens cannot be dictated by a "
single IRCC officer."
