Hello. Can anybody suggest whether PR status is lost if PR card renewal is denied due to failure of RO? What happens after the denial? Does applicant have option to appeal to the decision? TKS.
Is PR status lost if PR renewal is denied due to failure of RO
- Thread starter chaimaomao
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Yes, status would be lost if you do not win an appeal. Same goes for a PR that fails to obtain a PRTD for the same reason (not meeting the R.O.).
An application for a new PR card is NOT (with some isolated exceptions) denied because the PR failed to comply with the Residency Obligation.
Procedure attendant PR card application processing for Inadmissible PR:
When a PR who is IN Canada and is in breach of the RO when they make an application requiring or triggering a Residency Determination, such as an application for a PR card, and IRCC determines the PR is inadmissible due to a breach of the RO, a 44(1) Report for Inadmissibility is prepared, and another officer reviews that report. Attendant the officer's review of the Inadmissibility report, the PR is at least interviewed or provided other opportunity to, first, address whether they have failed to comply with the RO, and secondly, if so, to present H&C reasons why they should be allowed to keep PR status despite the RO breach. If the officer conducting the review determines the report is valid in law (meaning mostly, as a matter of fact, the PR has breached the RO) and that there are not sufficient H&C reasons to allow the PR to keep status, a Removal Order is issued.
Issuance of a Removal Order is a decision that terminates PR status. It does not take effect immediately. There is a right of appeal. If the PR timely appeals, the Removal Order remains unenforceable pending the appeal -- that is, if an appeal is made, the Removal Order does not take effect pending the outcome of the appeal. If the appeal is dismissed, the Removal Order is then enforceable and that terminates PR status. If the outcome of the appeal is to set aside the Removal Order, the PR keeps PR status.
Exceptions:
It gets more complicated if the PR is outside Canada, or leaves Canada after making the PR card application. Situations involving PRs seeking H&C relief for a breach of the RO leaving Canada or applying while outside Canada (however they might manage to do this despite IRCC's efforts to make it at least very difficult to do that), have been discussed at length in many topics. Suffice to say, there is very little point in making a PR card application when in breach of the RO UNLESS the PR is IN Canada and will be STAYING in Canada. If this is the situation, better to consult with a lawyer about how to proceed.
Other Reasons for Denying PR card:
The above observations are not about other reasons for denying the PR card application. Obviously, if a PR has already had a PR TD application denied, or a Removal Order go into effect, the application will be denied because they are NOT a PR, but rather a Foreign National.
Thanks a lot for detailed response. Another question: If PR finally gets his PR card renewed based on H&C though not meeting RO, how will the new RO be counted in his future 5 years? Can he leave Canada for one year just after he gets the new PR card?
If you are asking whether the PR Residency Obligation clock starts over, NO, it does not.
Beyond that, this is a complex subject, tangled with complicated nuances, very much dependent on the particular details in the individual case. What actually happens can and will vary considerably from one person to another. The risks vary so widely it is very difficult if not near impossible to even ballpark the odds.
The only for sure safe approach is to STAY in Canada long enough to be in compliance with the RO and then not stay abroad for so long that they fall short of having been IN Canada at least 730 days within the previous five years . . . as of any day, as of every day.
That's how the RO works: to be in compliance with the RO, the PR needs to have spent at least 730 days IN Canada within the previous five years. A new PR card does not change that. (The clock does NOT start over.)
A positive H&C relief adjudication complicates this. It does NOT affect the calculation of RO compliance itself the next time the PR is examined, which can happen anytime when the PR arrives at a PoE returning to Canada. The RO compliance calculation is still based on whether or not the PR was IN Canada at least 730 days in the five years preceding that day.
But the previous H&C decision is entitled to credit in so far as it has determined that H&C relief was warranted as of the date that decision was made, considering absences from Canada prior to that date and the reasons for them. What that prior decision did not (and could not) have considered is the nature and extent of absences AFTER the H&C decision, or the reasons for the absences after the H&C decision.
Generally a PR allowed to keep PR status based on a positive adjudication allowing H&C relief, and issued a new PR card, can safely (well, with low risk) travel outside Canada using the new PR card to return to Canada, if they are going abroad for SHORT trips, particularly so if the short trips only take place AFTER it is readily apparent the PR is well-settled in Canada and has established permanent residence in fact here (not to be confused with having immigration status of a Permanent Resident). This is rife with caveats. One of the caveats is that the longer or more frequent the trips aboard, and especially so if the PR has not, first, clearly well settled here in Canada, increases the risk of inadmissibility proceedings and loss of PR status the next time the PR returns to Canada.
Another caveat is that it appears IRCC will many times approve issuing a new PR card, even though it is readily apparent the PR is in RO breach, without formally adjudicating whether that is based on H&C relief. Even though the application for a new PR card specifically asks for H&C relief. Then subsequent travel abroad is very much at risk if the PR does not meet the RO the next time they arrive back in Canada (that is, if the PR has been in Canada fewer than 730 days within the five years of that day, the day they return here). Credit for a previous H&C decision, in weighing whether the PR still deserves to keep status despite being in breach of the RO (such as, when they next return to Canada after an absence), depends on there having been a formal adjudication granting H&C relief.
It is not easy to characterize the difference it makes, in terms of risk, if the new PR card was issued without a formal adjudication of H&C relief, versus when there has been a formal adjudication. That is because either way, if a PR leaves Canada and is in RO breach the next time they return, there is (of course) some risk their RO compliance will be examined, and if in breach of the RO then subject to Inadmissibility proceedings. And the risks are so widely variable we just cannot quantify them, not even in ballpark range . . . well, except, if it is certain that the H&C case was adjudicated, the risk for SHORT trips is less.
I am not sure how to tell if the H&C case was formally adjudicated. For PR TD applications it is easy: if a PR TD is issued and coded RC-1, that means it was based on H&C relief. Otherwise, even if one might conclude that the visa office had to consider H&C factors in granting the PR TD, if the PR TD is not coded RC-1 that means to whatever extent H&C factors were considered, that will have little or no weight in any future RO compliance assessment. For Port-of-Entry examinations it is also fairly easy to know, assuming the PR is clear headed enough to recognize if a Inadmissibility Report has been prepared and then in the course of reviewing that by another officer it is set aside for H&C reasons.
For PR card applicants relying on H&C relief, they will know there was a formal adjudication of H&C relief if they are interviewed or questioned by an officer reviewing a 44(1) Report, resulting in the Inadmissibility Report being set aside. Absent that, odds are a new PR card is not based on a formal adjudication of H&C relief.
And, again, either way, extended absences without first getting into RO compliance will risk Inadmissibility proceedings.
All that said, absent some additional, strong H&C factors, soon leaving Canada for a year without first getting into compliance with the RO, very likely significantly elevates the risk of Inadmissibility proceedings when next returning to Canada . . .
But again, how it actually goes can vary widely . . . depending the numbers, including the length of the absence and reasons for it . . . depending on whether the returning PR is fortunate enough to get waived through the PIL (Primary Inspection Line) without a referral for RO compliance questioning . . . depending on the extent to which the PR has settled in Canada or otherwise has residence-related ties in Canada . . . depending on, well, a lot of contingent and specific to the individual factors.
Safe approach is to NOT travel abroad UNTIL AFTER clearly establishing in-fact residence in Canada, and only go abroad for short stays; and the safest approach is to STAY long enough to get into RO compliance.
the 5 years is a rolling year. So every time he interacts with IRCC or CBSA (PR card renewal, trying to sponsor family, entering border...etc) the 5 year from that day, he needs to meet RO.
Getting a new PR card doesn't mean he will start counting his RO from 0 and be given another 5 years to meet his RO.
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Is this for your son? He seems to have been out of Canada since 2020. Is he still compliant with his RO? How old is he? Does he stil have a valid PR card? Does he have a US visa?
Yes, this is for my son. He will turn 22 in Dec 2024. He left Canada in July 2020 and I left in Sep 2020. I Became Canadian citizen in June 2022 and I left Canada after the ceremony. My son is attending university in China and lives in dormitory most of the time and staying with me during vacations. He is supposed to graduate in July 2025. His PR card expired but he has US visa.
I am not sure whether his time accompanying me might be counted in his RO and even if it is counted as RO credit, he might not be able to use it after his 22 birthday. He wants to get his degree from CwantsASAP before permanently moving back to Canada. We are valuing the following options:
1. Go back to Canada through USA in July 2024 just before his 22 birthday so that his time outside of Canada since June 2022 (when I Became citizen) might be counted in his RO obligation. Then he has to stay in Canada for 2 years and apply gaps from his unversity. Two years later, he is worry-free to renew PR card and go back to China to complete his last year. For this option, he has to spend two more years before getting the degree and can not be covered for health insurance in Canada, but it is the safest way to keep his PR status.
2. Go back to Canada in July 2024 and apply for PR card renewal before Dec 2024 or his 22 birthday. If all time he spent outside Canada while accompanying me is counted in RO, he might have no trouble to get his PR card and enjoy health and other rights with PR crad in hands. He may wait for two years and go back to complete his degree.
3. Similar to option 2, but might leave Canada after getting new PR card. In this case, he doesn't have to wait 2 years to complete his degree, but might risk loss of status if his RO credit as a child is NOT available after he turns 22.
Can you give some ideas whether option 2 and 3 will work? Thanks.
I don't know exactly how a under 22 years old adult's RO can count towards staying with a citizen parent.
BUT he wasn't really accompanying you. You were in Canada while he already settled in China since 2020. You travelled in 2022.
Did he not plan to settle in Canada eventually? Why did he not want to study in US or Canada instead?
Unless it's related to Chinese medicine or Asian culture, wouldn't it be better if he tried to transfer his credits and continue his study in Canada instead?
https://irb.gc.ca/en/making-immigration-appeal/Pages/residency-obligation-outside-canada.aspx
Copied from the link
There may be reasons why you were outside Canada that the law allows. If you can prove this, the time you were outside Canada can be added to the time you were physically present in Canada. This could fulfil your residency obligation.
Allowable reasons:
- Living outside Canada with a spouse, common-law partner or parent who is a Canadian citizen. A child can make this case only if they were a dependent child of the Canadian citizen at the time they lived outside Canada.
- Subsection 28(2) of the Immigration and Refugee Protection Act (IRPA)
- Section 61 of the Immigration and Refugee Protection Regulations
Even if you believe that you had an allowable reason for being out of Canada, be prepared to show that there are humanitarian and compassionate reasons for your appeal
You should assume he will not be able to use any time from outside of Canada as credit towards RO. This is for a few reasons. He's not accompanying you outside of Canada. He moved out of Canada several years before you did. He is also not primarily living with you. He's living in his dorm primarily and staying with you on holidays. Assume the time outside of Canada will not count and plan accordingly. This means he needs to return to Canada and then live in Canada for 730 days before he can apply to renew his PR card.
Would add that there are still no guarantees that he won’t get reported because he is under 22 just better chances than being older and that is primarily for PRTDs based on H&Cs. Your son also had the ability to study in Canada as a domestic student but chose to return to China to study so that wouldn’t be considered an H&C situation but a personal decision. The fact that you returned to China as well shows that he has a support network in China.
Let me clarify. My son left Canada in July 2020 and I left in Sep 2020. I applied citizenship before leaving. I waited until notice for ceremony and traveled back to Canada in June 2022 and returned to China in AUGUST 2022 after I got citizenship. I guessI time since August 2022 could be counted into my son's RO. And I assume he might have fewer chances to be reported if he returns to Canada through USA border before his 22 birthday.
There's no obvious reason to think or conclude he accompanied a citizen as was already there when you got citizenship. Who knows how ircc will treat, but not obvious.
Likewise crossing at border. Perhaps lower chances, esp compared to prtd, but not self evident it won't happen.
Note also timing - after 22 cannot be sponsored.
I really don't think you can count any time outside of Canada towards your son's RO. You should assume IRCC will give him zero days credit for this time. He didn't accompany you out of Canada, he left on his own. Also, he's not living with you full time.