Consequences of being reported on form 44 for not meeting non-residency obligation.

[taxpayer2000]

Hello

I'm a US passport holder with Canadian PR status who has not met the residency obligation. I'm planning to visit relatives in Canada and I understand that there is a risk of form 44 being filled out for me.

From what I am reading it will cause a deportation order? is that the case even as a US passport holder?

Will it be recorded as derogatory information that the US CBP will see as a deportation order?

Will it have negative effects on future visits to Canada?

 

[dpenabill]

.

Hello

I'm a US passport holder with Canadian PR status who has not met the residency obligation. I'm planning to visit relatives in Canada and I understand that there is a risk of form 44 being filled out for me.

From what I am reading it will cause a deportation order? is that the case even as a US passport holder?

Will it be recorded as derogatory information that the US CBP will see as a deportation order?

Will it have negative effects on future visits to Canada?

The labels (like "inadmissible") aside, the worst outcome (most negative consequence) is losing the status of being a Canadian and becoming, relative to Canada, a "Foreign National;" that is, no longer a Canadian PR. For many this can be a serious, severe outcome, potentially harsh or even devastating. But for someone who is not relying on settling and living in Canada, and who has a passport allowing travel to Canada visa-exempt, like a U.S. citizen, all it means is that for future travel to and time in Canada they are a visa-exempt traveler with the same status as any other traveler carrying the same passport.

The procedure getting there is a little complex, and there are options, which I have I discussed at length and in-depth in numerous topics here. Among the options is going through the process of renouncing your PR status at the Port-of-Entry rather than going through the process of losing PR status in inadmissibility proceedings (which in terms of outcomes is not complicated, but again I have described elsewhere the process in terms of the procedural details).

So a big factor is whether it is important for you to keep PR status. If not, whichever procedural path you go the final outcome is the same: you become a Foreign National who can travel to Canada the same as others who carry the same passport you do.

If instead you want to try to keep PR status, that's a more complex discussion.

 

[Besram]

Hello

I'm a US passport holder with Canadian PR status who has not met the residency obligation. I'm planning to visit relatives in Canada and I understand that there is a risk of form 44 being filled out for me.

From what I am reading it will cause a deportation order? is that the case even as a US passport holder?

Will it be recorded as derogatory information that the US CBP will see as a deportation order?

Will it have negative effects on future visits to Canada?

The ultimate consequence of being reported at the border is a removal order, of which a deportation order is only one type.

Typically, the removal order is issued in the form of a departure order, which asks you to leave the country within a specified amount of time (30 days). If you comply with it, there are no further negative consequences for future visits to Canada, but you will have to disclose this fact when asked. Note you must have your departure confirmed by CBSA.

The deportation order, on the other hand, is a lot more serious, and gets issued if you do not comply with the departure order. This permanently prevents you from coming to Canada unless you apply for an Authorisation to Return to Canada.

Since you are a US Citizen, I don't see how either of the above could have any negative effects on your status in the US.

Note: if you don't have any desire to live in Canada and you don't want to salvage your PR status, you have the option to renounce your PR status. This option is frequently/sometimes (?) provided to people who are being questioned for non-compliance at the border, and if chosen, you can then be admitted as a visitor instead. You can also do this voluntarily ahead of time.

Note if you are issued a removal order, you can appeal it. This means the removal order will not be enforced for the duration of the appeal.

 

[Rahul61]

Has anyone personally experienced, or knows a documented case, where a PR:

Entered Canada with a valid PR card

Was not reported at entry

Stayed continuously for more than 2 years

Met 730+ days in the rolling 5-year window at the time of PR card renewal

AND STILL had their PR card renewal refused solely due to earlier absence?

I am not asking about PRTD refusals, or cases where the person applied before meeting 730 days.

Thanks in advance

 

[armoured]

Has anyone personally experienced, or knows a documented case, where a PR:

Entered Canada with a valid PR card

Was not reported at entry

Stayed continuously for more than 2 years

Met 730+ days in the rolling 5-year window at the time of PR card renewal

AND STILL had their PR card renewal refused solely due to earlier absence?

I am not asking about PRTD refusals, or cases where the person applied before meeting 730 days.

Thanks in advance

I do not know of any. Basic answer is that it *should* not be possible, because residency obligation compliance is evaluated at the time of the PR renewal application. Previous 'breaches' are not punishable.

Emphasis in interpreting this on "refused solely to the the earlier absence." And assuming all facts are factual (eg day count is not disputed).

Only exception I could possibly think of would be a situation where somehow the 'report' was started and somehow continued without the PR being aware. Which, you know, should not happen. That would then get into legal issues such as appeal periods, fair notice, etc.

In other words: it's not impossible to have a case that might look like what you say, but where a report was somehow completed. The rest is factual disputes about what happened and obligations of the parties, etc. And it's likely (almost certain, really) that there are cases in the past that have met this description (at least in the opinion of one of the parties).

But on a basic 'what the procedures say and allow', no, the renewal can't be refused on that basis if the facts are as described.

 

[Rahul61]

Ok thanks
So it is safe if someone entered without being reported at entry time and then he shd stay straight for more then 2 years and apply for renewal only when he meet more then 2 year residency.

Then for sure no risk or still being risk ?

 

[steaky]

Ok thanks
So it is safe if someone entered without being reported at entry time and then he shd stay straight for more then 2 years and apply for renewal only when he meet more then 2 year residency.

Then for sure no risk or still being risk ?

I think risk remains if the person apply things such as sponsor their family for immigration before he meet more than 2 year residency.

 

[armoured]

Ok thanks
So it is safe if someone entered without being reported at entry time and then he shd stay straight for more then 2 years and apply for renewal only when he meet more then 2 year residency.

Then for sure no risk or still being risk ?

I am basically repeating: but no 'real' risk - as @steaky reports (and I neglected to mention) certain things like sponsoring spouse or child or other 'interactions' with IRCC directly (not just *any* interaction, but things which may require them, technically anyway, to confirm one's elgibility/admissibility in order to proceed - like sponsoring spouse) could trigger such an evaluation.

But note, normal day to day life (working etc) should not do so. It's not necessary to be afraid of eg interaction with other govt agencies.

 

[canuck78]

In general very tough to comment when Canada is tightening its immigration system. Still don’t think it is likely but things that were once possible may no longer be possible going forward so would be extra cautious and not base decisions on what people previously got away with.

 

[dpenabill]

.

Has anyone personally experienced, or knows a documented case, where a PR:

Met 730+ days in the rolling 5-year window at the time of PR card renewal

AND STILL had their PR card renewal refused solely due to earlier absence?

No.

But I have seen a case in which a Removal Order was issued by an officer who miscalculated the extent of a PR's RO compliance by counting absences prior to the preceding five years, which was set aside on appeal and that particular aspect of the officer's decision was ruled to be NOT valid in law . . . the obvious outcome. (Outcome so obvious, setting aside an outlier decision blatantly contrary to the law, I did not take much note of the case, so cannot cite or link it.)

So it is safe if someone entered without being reported at entry time and then he shd stay straight for more then 2 years and apply for renewal only when he meet more then 2 year residency.

Apart from cases involving contested facts, aberrations in processing, or unusual anomalies . . . sometimes the innocent are not only prosecuted but convicted . . . stuff happens . . . (see example referenced above)

Apart from that . . . Yes, a PR who is currently in compliance with the Residency Obligation when they make a PR card application (which must be made IN Canada), and who continues to be in compliance after making the PR card application, is "safe" in regards to RO compliance; that is, they will not be inadmissible for failing to comply with the PR Residency Obligation.

Thus, for the PR who has breached the RO but is back in Canada and not subject to an inadmissibility report, who has stayed in Canada for two full years, there is no basis, none whatsoever, to find they are inadmissible for failing to comply with the RO based on prior absences.

Here is what the statute, section 28(2)(b) IRPA, provides regarding the PR Residency Obligation:

. . . it is sufficient for a permanent resident to demonstrate at examination . . . that they have met the residency obligation in respect of the five-year period immediately before the examination​

That is the current law. And it is the law being applied in practice. There is no hint that IRCC or CBSA has pursued inadmissibility proceedings against a PR who is in compliance with the RO "solely due to earlier absence." (Note: even the case I referenced above was nowhere near solely due to the PR's earlier absences.)

That is, if as a matter of fact a PR is in RO compliance as of the date of an examination (date a PR card application is made is just one potential examination date; date of interview or hearing during the processing of a PR card application is another, among others, such as a RO compliance examination attendant PoE screening), they do not meet the definition of inadmissible for a breach of the PR Residency Obligation. There are no grounds for taking action or making a determination against the PR based on the RO.

Of course the facts matter. And sometimes the facts can be in dispute. It happens, for example, the PR claims presence but officials determine the PR's proof is insufficient to "demonstrate" presence meeting the RO (burden of proof is on the PR).

In regards to . . .

In general very tough to comment when Canada is tightening its immigration system. Still don’t think it is likely but things that were once possible may no longer be possible going forward so would be extra cautious and not base decisions on what people previously got away with.

For clarification, it is important to distinguish the risks of inadmissibility proceedings for a PR who is outside Canada and in RO breach (which could be a higher risk going forward, and very likely will be a higher risk), versus the risk (none) for a PR who is in Canada and currently in RO compliance. This is true no matter how strictly CBSA and IRCC are "tightening" the immigration system. In particular, no matter how strictly, how tightly the RO is enforced, under the current law it is safe for a PR to make a PR card application when they are currently in compliance with the RO no matter how much they have breached the RO in the past.

There is no pending legislation, and so far as I am aware none proposed, that would change Section 28(2) IRPA.

There are many other getting-tough measures and proposed measures, mostly in terms of how the current law is applied but also in proposed legislation. But in regards to this, it is difficult to perceive much chance there will be any changes to Section 28(2) even proposed, let alone adopted, for the foreseeable future.

That said, I totally concur in cautioning that going forward there is a real prospect, if not high probability, Canada will be more strictly enforcing the RO . . . even if this is mostly about the extent to which developing technology flags more PRs in breach during PoE screening. The employment of Advanced Analytics and other AI components in conjunction with travel history data is so likely it seems inevitable, particularly so long as the political environment is leaning toward increased enforcement of immigration laws and rules generally.

Thus, the premises of @Rahul61's query are critical: PR in Canada, no Report pending, applying for a PR card after having stayed here two straight years.

If, in contrast, the query is about a PR not yet in Canada, that gets into the history of, in effect, getting away with breaching the RO, and warrants the caution the odds of that could be changing . . . or, as some of us apprehend, are likely to be changing toward getting tougher.

 

[Rahul61]

Thanks very much for the detailed information.

One query
Would consulting an immigration lawyer before attempting entry be the recommended approach?

Or shd try to enter canada if currently out of residency
As stayed only 20 days in canada
from issue of pr sept 2022 to till date and pr expiry date is sept 2027.

Thanks

 

[Besram]

Thanks very much for the detailed information.

One query
Would consulting an immigration lawyer before attempting entry be the recommended approach?

Or shd try to enter canada if currently out of residency
As stayed only 20 days in canada
from issue of pr sept 2022 to till date and pr expiry date is sept 2027.

Thanks

Several points of note:

• You PR does not expire, it's only the PR card that does
• The more important date for you is when you landed (NOT the issue date of the PR card) - this is when the RO starts to count
• Assuming that you landed in Sep 2022, that puts you out of compliance by about four months, give or take. This is still fairly low. The sooner you return to Canada, the better your chances are.
• It appears from forum reports that most people do not use a lawyer before attempting a return to Canada. Conversely, if people do get reported at the border and decide to appeal, this is usually when a lawyer is most recommended and used.
• That said, certain lawyers do offer services like preparing a written H&C package for the border that you can present if you do get questioned in secondary inspection. This service can be very pricey though. They can also assist with helping you prepare for any questioning. One important caveat: an immigration lawyer cannot represent you at the border directly, meaning you can't call your lawyer and ask him/her to come and talk to CBSA on your behalf. So you need to decide if the additional help in preparing for the border crossing is worth it to you. Expect to pay thousands of C$ for this service.

 

[Rahul61]

Thanks very much

I also wmat to ask
I come to know from various forums that there so some differences of port of entry also like which airport is more easy or where extensive checking is not done
Some say prefer yyz

Some points are there like this
If any info plz share

 

[dpenabill]

I come to know from various forums that there so some differences of port of entry also like which airport is more easy or where extensive checking is not done
Some say prefer yyz

Whatever differences there might be, those differences are largely unpredictable and they are outweighed by other factors, outweighed by a lot. This has been part of a very recent discussion in a topic where another PR in breach asks about the odds of facing inadmissibility proceedings when they come to Canada. In that topic I address the risks of inadmissibility proceedings at the PoE when a PR in breach arrives here, and @Besram offers several astute observations about various factors and considerations in play for the OP there.

Remember that the PR's personal situation dominates how officers perceive them . . . even if one PoE is generally more lenient than another (reliable reporters with more experience in that regard than me typically say this not so, not in any useful sense), if arriving here at that PoE is in anyway incongruous with the PR's personal circumstances, arriving at that PoE will increase the risks of an adverse outcome.

Best for a PR in breach to arrive at the PoE that makes the most sense for their situation and plans.

Additionally . . .

Would consulting an immigration lawyer before attempting entry be the recommended approach?

Or shd try to enter canada if currently out of residency
As stayed only 20 days in canada
from issue of pr sept 2022 to till date and pr expiry date is sept 2027.

CAUTION: Seeking and relying on information, let alone advice (such as inquiring what should be done), based on abstract or hypothetical queries (rather than based on the relevant circumstances in a particular PR's situation) is fraught with peril, especially for a PR who meets the definition of inadmissible and is outside Canada. The specific details more than matter, they make a big difference, often the difference that determines the outcome.

For example, if your queries are about a PR (perhaps you?) who is not IN Canada yet, and not in compliance with the PR Residency Obligation, and especially if it has been more than three years since the PR was last IN Canada (note that I am not acquainted with your personal circumstances, which you have not shared in this topic), my observations in response to your query about a PR applying for a new status card are largely irrelevant. As I noted in response to @canuck78:

. . . the premises of @Rahul61's query are critical: PR in Canada, no Report pending, applying for a PR card after having stayed here two straight years.

If that is not the situation, if the previous query was a hypothetical rather than an actual situation, my previous response above does not illuminate much (it mostly states what the law is, how the law works, which does not illuminate much about how it will go for a PR in breach and still outside Canada). In particular, if the PR's circumstances (again, including yours if your queries are about you) are different, and for sure if the PR is in breach of the RO and not currently IN Canada, your previous query here and my response is largely irrelevant, or at the very least way, way premature.

That is, what I described about the law and how it is applied is only relevant for a PR who is currently in Canada, has no inadmissibility Report or inadmissibility proceedings pending, and is applying for a PR card after having stayed here two straight years . . . and is only about whether there could be an adverse outcome in response to a PR card application "solely due to [an] earlier absence." Otherwise, especially for a PR in breach currently outside Canada, there are far too many contingencies, all sorts of potential wrinkles, some likely, that can significantly alter what happens.

It is possible, and there are many anecdotal reports of it happening, that a PR in breach outside Canada is waived through the PoE upon arrival, is not subject to a RO related examination; in that case it is then possible that this PR could stay two straight years and then (only then) be in position to make a "safe" PR card application. As has been described. But for a PR in breach who is outside Canada that is just one possible scenario, and it is the best case scenario, not the more likely scenario; there are lots of risk that things go differently.

To some extent your previous query was akin to asking if someone with a million dollars in the bank can spend that million dollars (sure they can). But that does not illuminate much, not much at all, if they do not actually have a million dollars in the bank and they are relying on winning a game of chance to get a million dollars.

It is worth noting (for a PR in breach attempting to return to Canada from abroad), that even though many of the various scenarios in how it goes can lead to adverse outcomes, including loss of PR status, there are also some others ways it can go in a positive direction. For example, if a 44(1) Report is prepared by border officials and then set aside based on H&C reasons by the second officer reviewing the Report (acting in the role of Minister's Delegate), that PR should not have to wait two full years before it is safe to apply for a new PR card, and in the meantime they should be able to make short trips abroad (so long as they settle in Canada, establish an in fact permanent residence here, and mostly stay) -- but this too is just one of the possible ways it can go, another more or less best case scenario among a number of other not-so-good ways it can go, and the prospect of it going this way depends on the specific details in the PR's particular situation.

To be clear: the particular details matter and for a PR who meets the definition of inadmissible there are various risks potentially leading to adverse outcomes. And for a PR in breach of the RO and still outside Canada, it is way, way too early to consider how things will go years from now when a PR card application might be made.

Leading to the observations by @Besram, which as usual are astute, more succinct than mine, and with which I largely concur except to note that a consultation with a Canadian immigration lawyer can be helpful, offer some useful guidance, without necessarily incurring the expense of paying the lawyer to prepare a written H&C package. For one thing, a lawyer can review the particular reasons why the PR did not come to stay in Canada sooner, and offer some instructive guidance that should help the PR prepare to best present their case to border officials . . . if it comes to that.

Which brings this to the fulcrum in this PR's situation: what happens, how it goes, when the PR in breach arrives at a PoE in their effort to come to Canada to stay. . . TBC

 

[dpenabill]

Or shd try to enter canada if currently out of residency
As stayed only 20 days in canada
from issue of pr sept 2022 to till date and pr expiry date is sept 2027.

Assuming that you landed in Sep 2022, that puts you out of compliance by about four months, give or take. This is still fairly low. The sooner you return to Canada, the better your chances are.

I concur and this observation is consistent with what many veteran forum participants are likely to comment, and have commented in regards to many other queries here about the various ways things can go in the PoE screening of an arriving PR who is in RO breach. There is a plethora of discussions here about many of various ways things can go at the PoE and subsequently, many diving much deeper into various particular circumstances, wrestling with the many complex nuances which make it difficult, if not nearly impossible, to make any forecasts beyond ballpark generalities, including what should be the obvious: "The sooner you return to Canada, the better your chances are."

Among the many, many related discussions here, for example, in regards to the risk of inadmissibility proceedings at the PoE, I very recently commented:

In particular, how soon you make the move is the main factor that you have control over which will affect your odds.

. . . When is the main factor; again, the sooner the better, and . . .

It is worth noting that the best odds are about having good odds of being waived through the Port-of-Entry without being closely questioned in regards to RO compliance. Most PRs arriving at a PoE with valid PR cards are not interviewed about RO compliance, let alone examined in depth in regards to the RO. Unless there are circumstances more or less flagging the likelihood of non-compliance with the RO, a returning PR presenting a valid PR card is likely to be waived through, and indeed (pursuant to the rules and CBSA practices) should be readily waived through.

The caveat is that for a PR in breach there can be and often are various circumstances which will flag a RO compliance issue . . . and as @canuck78 referenced, overall "Canada is tightening its immigration system," and this most likely applies to RO enforcement, so it is even tougher now to forecast how it is likely to go, let alone how it will go for any particular returning PR.

Basically the sooner the PR returns to Canada, the better their odds of being waived through. Being waived through is what can set up the best case scenario in which the PR can settle and stay, and then wait to apply for a PR card ONLY after they are in compliance with the RO.

There is a very real risk, nonetheless, of being questioned about RO compliance at the PoE, and then how things go gets a lot more complicated . . . and the risk of an adverse outcome increases. If there is a "fairly low" breach in conjunction with decent even if not great reasons for not getting here sooner, there should still be fair odds of being waived through, or if a Report is prepared, lower but still fair odds the reviewing officer sets the Report aside for H&C reasons (the latter is actually another best case scenario, as I described above, but once a Report is prepared that significantly reduces the odds the PR will avoid receiving a Removal Order at the PoE).

If this is about you, and you cannot afford or you are otherwise unable to obtain guidance from a Canadian immigration lawyer, regarding how to best prepare to save your PR status when you return to Canada, there is a lot of relevant information posted in this forum . . . with the caveat there's a lot of crap posted here as well. So keep your critical thinking cap on and use it.

For example, for perspective, there was a conversation here around a year ago about whether there has been an increase in inadmissibility proceedings during PoE screening. See https://www.canadavisa.com/canada-i...hreads/increase-in-44-1-at-the-border.864270/ In that topic I discuss, for one example among many, the decision in Agzaou v Canada, 2024 CanLII 135398, https://canlii.ca/t/k8z2s as an example of a soft landing PR who was issued a Removal Order upon arrival when Agzaou was only sixty days short of arriving in time to meet the RO within his first five years. His status was saved on appeal, but it illustrates the risks even for a PR just a little short and with rather good H&C reasons.

If you query is about yourself: Consult with a lawyer . . . or do the homework, read about making the H&C case upon arrival . . . or take your chances coming here as soon as you can, hoping to be waived through (as many who are still more than a year short of the fifth year anniversary of landing report they have been).