About the definition of "accompanying" a citizen

[bigleo2009]

Thanks to all experts here.

It is understood that the days a PR ACCOMPANYING a citizen parent outside of Canada can be counted towards the PR's residency obligation.

Question: If the PR minor is already abroad and his/her parent PR becomes citizen later on and moves together with the PR, is the "accompanying" still valid? When the count starts, from the day the citizen parent left Canada not the date of citizenship certificate?

 

[Rob_TO]

"Accompanying" means you are physically with the PR outside of Canada.

So this means you must wait until you officially have Canadian citizenship, and then can start counting days toward the minor's PR RO as accompanying only when you physically are with him. When eventually applying for his PR TD or PR card renewal, you would need to also submit proof of accompanying/cohabitation (if required to meet RO).

 

[bigleo2009]

Thanks Rob To,

So accompanying means physically living together or cohabitation, not anything to do with who followed whom, from your perspective? I think so.

 

[Rob_TO]

Thanks Rob To,

So accompanying means physically living together or cohabitation, not anything to do with who followed whom, from your perspective? I think so.

Right, physically living together. Shouldn't matter who went there first. Time would just start counting when there together, and stop counting when one person leaves.

 

[keesio]

Right, physically living together. Shouldn't matter who went there first. Time would just start counting when there together, and stop counting when one person leaves.

There has been a bit of debate about this. Some will argue that the actual rule is that the PR should be following the Citizen. So if a PR moves out of Canada because they got a job elsewhere and the Canadian spouse follows, that is not technically following the rule.

But I think in practice, IRCC takes the simpler approach where as long a the couple is living together, who followed whom is not really an issue...

 

[Rob_TO]

There has been a bit of debate about this. Some will argue that the actual rule is that the PR should be following the Citizen. So if a PR moves out of Canada because they got a job elsewhere and the Canadian spouse follows, that is not technically following the rule.

But I think in practice, IRCC takes the simpler approach where as long a the couple is living together, who followed whom is not really an issue...

Ya I recall seeing some posts around this too, but can't remember if it was just someone's own interpretation of the rules or if there was an actual case on record that illustrated IRCC actually looks for this. I imagine getting into this level of detail would get pretty complex, and in vast majority if not all cases simply living together is enough.

 

[keesio]

I imagine getting into this level of detail would get pretty complex, and in vast majority if not all cases simply living together is enough.

yeah, agreed. I imagine IRCC has bigger fish to fry than spend resources investigating more trivial cases like this.

 

[Leon]

Immigration hasn't been going into details about which spouse is accompanying the other in such cases, at least not in the past few years. However, when it comes to children, if you look at the operational manual OP 10, they do say on page 15:

A28(2)(a) (ii) and (iv) provide that each day a permanent resident is outside of Canada accompanying a Canadian citizen spouse, common-law partner or, in the case of a child, a parent with whom they ordinarily reside, it is deemed a day of physical presence in Canada.

And there is a clause in there stating that the immigration officer should examine "whether the applicant normally resides with the person they are accompanying abroad" (page 31).

You can find OP 10 here: www.cic.gc.ca/englisH/resources/manuals/op/op10-eng.pdf

So I would assume that the spirit of OP 10 is that you can not protect PR by the Canadian parent joining their minor child whom they don't ordinarily live with for just enough days to keep their PR.

 

[dpenabill]

Observation: Generally, for a long while now, it has appeared that when genuine PR-citizen couples have been living abroad, even if for many years, the PRs were routinely given credit toward compliance with the PR Residency Obligation. And ordinarily it did not appear to matter why the couple is abroad, who has followed whom. And, indeed, the applicable operational manual essentially states that in assessing the applicability of the credit it is not necessary to determine who is accompanying whom or what the purpose for being abroad is. Moreover, given recent changes pursuant to which IRCC is now issuing PRs in these circumstances a multiple-use PR TD, potentially valid for up to five years, it seems that IRCC is deliberately accommodating PRs in these situations.

Despite some much older cases in which who accompanies whom was parsed, for the last many years I had not noticed any reason to doubt the approach suggested in ENF 23, pursuant to which who is accompanying whom does not matter.


BUT . . .

Even though I have made a concerted effort, for many years now, to read every published Federal Court decision about citizenship or PR obligations, my reading of IAD decisions is casual, mostly in the course of researching particular issues. So unless someone else in the forums alerts me to significant IAD decisions, I can fail to take note of some rather important ones . . . including a couple decisions specifically about this topic.

It turns out that a salient factor could be the extent to which the PR is "well ensconced in the foreign jurisdiction," and the citizen effectively goes to that foreign jurisdiction to live with the PR.


Spoiler alert: Who accompanies whom can make a difference.

I am not sure how many, but at least more than one person interprets the requirement in a way which, well, emphasizes the difference based on who goes with whom; from an official IAD decision:

[31] In the panel’s estimation, Mr. Strickland [the citizen] accompanied the appellant [the PR]. The appellant did not accompany Mr. Strickland as envisaged by subparagraph 28(2)(a)(ii). They were in one another’s company, but, that in the panel’s opinion that is a different concept from the appellant accompanying Mr. Strickland . . .

[32] . . . Accompanying means to go with.

[33] This is further confirmed by the primary definition of “accompanying” in both the Concise Oxford Dictionary,[3] which includes “go with”, and the Gage Canadian Dictionary[4] which includes “go along with”.

[34] The panel is satisfied that the appellant did not go with or accompany David Strickland to the United States. Consequently, she is not a permanent resident of Canada on the basis that she has been outside Canada accompanying a Canadian citizen who is her common-law partner as intended by subparagraph 28(2)(a)(ii) of IRPA.

Before anyone counters that this comes from the Gabrielle Hildegard Pasch Smith decision (see http://canlii.ca/t/1xb5j ) which was decided nearly a decade ago, and ultimately in that case the IAD allowed Pasch Smith to retain PR status based on H&C grounds, there is an IAD decision decided within the last two years, in the Linhong Bai case (see http://canlii.ca/t/gtmm0 ) decided in July 2015 and which cites this interpretation from the Pasch Smith case, the IAD panel there concluding:

"In my view, based on the totality of the evidence, it was not the appellant [the PR] who was accompanying his wife [the Canadian citizen] to China, but rather, his wife was accompanying him."

This panel did not find there were H&C reasons to allow the PR to retain status. While this PR's citizen spouse mostly lived with him, the panel emphasized she only ever had visitor status in China. Nonetheless, living with him was her primary and usual residence, the life she was living was with her husband in China, and she maintained minimal ties to Canada. Physically they clearly lived together for most of the five years, not merely just 730 days. The PR lost status.

These cases do not appear to be common, but there are also others. And they arise from various visa offices around the world. This warrants noting because this means there are both multiple visa officers and IAD panels which are applying some degree of determining who is accompanying whom.

These are not sketchy anecdotal reports, but actual cases, official decisions. And while they may represent how only a few interpret the credit, they happen to be a rather important few: persons who decide whether to grant or deny a PR TD, and persons who make the decision on appeal.

So one more decision warrants mentioning. It too cites the "accompanying" interpretation discussed in the Pasch Smith decision. It too was less than two years ago, spring 2015. And, it is worth noting, a different panel than that deciding the Bai case.

This is the MD Shahiduzzaman KHAN case. It is another PR TD denial and appeal case. see http://canlii.ca/t/grz8t An April 2015 decision.

"Upon careful consideration of all the evidence, as well as the intended interpretation of the word “accompany” within the context of the legislation and I find that at no time did the Appellant [the PR] “accompany” his spouse [Canadian citizen]. It is his spouse who went to Bangladesh to “accompany” the Appellant. There is no temporal nexus between the two events that could be construed as the Appellant relocating to Bangladesh in order to be with his Canadian citizen spouse, or a Canadian spouse following the Appellant at the time or shortly after he relocated to Bangladesh to be with him.

The wording of section 28(2)(a)(ii) of IRPA clearly contemplates that it is the Appellant who is “outside Canada accompanying a Canadian citizen who is their spouse or common-law partner . . . and not the other way around.

. . . . . .

This is different than the situation where the permanent resident living in Canada follows his or her Canadian citizen spouse, or a Canadian citizen spouse follows his or her permanent resident spouse, outside Canada, at the same time or shortly thereafter."





Formalities regarding PR Residency Obligation credit based on accompanying a Canadian citizen spouse:

The statutory provision is Section 28(2)(a)(ii) IRPA
see http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-19

Section 28()(a)(ii) IRPA states (in pertinent part):
". . . a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are . . . outside Canada accompanying a Canadian citizen who is their spouse or common-law partner . . . "


The applicable regulation is Regulation 61(4) in the IRPA Regulations

see http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-12.html#h-31

Regulation 61(4) in the IRPA Regulations states )in pertinent part):

"For the purposes of [the provisions prescribing the credit for accompanying a citizen], a permanent resident is accompanying outside Canada a Canadian citizen . . . — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen . . ."


The operational manual which, so far, continues to apply is ENF 23 Loss of permanent resident status, and in particular Section 7.5

to see this manual, go to IRCC web page listing Operational Bulletins and Manuals, and follow links for Enforcement manuals, and ENF 23 in particular
see http://www.cic.gc.ca/english/resources/manuals/index.asp

ENF 23 Section 7.5 states (in pertinent part):

"In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met."


However, another operational manual applies to Residency Determinations made by Visa Offices overseas, OP 10 Permanent Residency Status Determinations. Section 6.1 in this manual discusses credit for "accompanying" a citizen. It is cursory, but more specifically refers to days that count:

". . . each day a permanent resident is outside of Canada
accompanying a Canadian citizen spouse [or common-law partner] . . . it is deemed a day of physical presence in Canada.



Other Observations:


As I noted above, turns out that a salient factor could be the extent to which the PR is "well ensconced in the foreign jurisdiction," and the citizen effectively goes to that foreign jurisdiction to live with the PR.

There is an older case which similarly focuses on the fact that the PR was living abroad for many years, had no ties in Canada for many years, and the decision turned on the fact that the PR subsequently married and lived with a Canadian citizen spouse in the country where the PR had been living all along. Lost PR.

Other cases involve collateral issues, including credibility or the genuineness of the relationship. In the Yanet Pardillo Diaz case (see http://canlii.ca/t/fq0vg ), for example, in addition to focusing on the fact that the citizen maintained a primary residence in Canada and was visiting the PR in Cuba, there were questions as to the credibility of claims about how much time they were together in Cuba and questions about the genuineness of their relationship.

I cannot discern to what extent the 2015 cases should cause concern among those PRs living abroad long-term with their citizen spouse. My sense is that these negative decisions are not how most of these cases go, that these are more or less obvious instances involving abuse of the Canadian immigration system. But, if the situation is one in which the citizen goes abroad to join the PR, particularly if there is a substantial gap in time as to who went abroad when, and the PR is the one who is "well ensconced in the foreign jurisdiction," this issue might warrant taking a closer look and considering ways to reduce the risks.

 

[dpenabill]

In my previous post I referenced an apparent change in policy last year, pursuant to which IRCC began issuing multiple-use PR TDs valid for up to five years, which seemed to be largely about accommodating PR-citizen couples living together abroad long-term.

I noted that this seems to be contrary to the approach reflected in two 2015 cases, cited and linked in that post, in which PRs lost PR status even though they had been living with a Canadian citizen spouse, based on a determination that the citizen accompanied the PR rather than the PR accompanying the citizen.

To some extent I downplayed the impact of these cases, suggesting they are probably exceptions related to specific, unusual circumstances. But in significant part this somewhat dismissive view (my view) was influenced by the policy change. In particular, in the Khan case (see http://canlii.ca/t/grz8t April 2015) the IAD appears to agree with the Minister of CIC, who argued: " . . . section 28(2)(a)(ii) of IRPA is intended to be an exception, and as such, the interpretation should be restrictive" (and thus the fact that the citizen accompanied the PR, not the other way around, precluded credit toward compliance with the PR RO). But the policy change last year, toward issuing multiple-use PR TDs to PRs living long-term abroad with a citizen spouse, I thought, signals that IRCC is approaching these PRs liberally not restrictively relative to the PR RO.

Which brings up a post this morning in another topic:

I am a Canadian Citizen and my wife (a Canadian PR) is accompanying me . . . outside Canada since Feb 2008. She became PR and landed in Nov 2006 and stayed with me in Canada up until Jan 2008 and subsequnetly we moved outside Canada in Feb 2008 . . . in Dec 2016 we applied a multiple entry PRTD for her and wrote a cover letter describing our scenario of "PR expired and accompanying Canadian Citizen spouse outside Canada on a long term basis". However, we only got a one time entry PRTD in Jan 2017 which is valid for 6 months.

The fact that a PR TD was issued should be reassuring to most PR-citizen couples living abroad. But, nonetheless, it is interesting that a single-use PR TD was issued, not a multiple-use one. Perhaps this can be explained based on the particular circumstances, the couple being abroad for nearly a decade without visiting Canada, or the lack of a copy of the CoPR.

Or, it could be that I have misjudged the import of the changes last year, that perhaps the issuance of multiple-use PR TDs does not reflect a more or less liberal approach toward PRs living long-term abroad with citizen spouses.

As I noted in my previous post, in addition to the two 2015 cases, there are other cases which similarly distinguish circumstances in which the citizen accompanies the PR abroad, and the PR thus not qualifying for the credit toward compliance with the PR RO, because the PR was not the one accompanying the citizen. One of those is the Parveen Akhtar case, a 2011 decision (see http://canlii.ca/t/fp0lk ) The IAD stated:

"Although the words “accompanying” or “accompany” are not defined in IRPA or the Immigration and Refugee Protection Regulations, the dictionary meaning of the words is to “go with; escort, attend”. The Appellant did not escort or go with her husband to Pakistan in the sense that is ordinarily understood by the words “accompanying” or “accompany”. Hence, the Appellant was not accompanying her spouse to entitle her to an exception under subsection 28(2)(a)(ii) of IRPA."

In this case the PR and citizen were together less than 730 days. The issue was whether, in conducting a H&C assessment, the PR should be given credit for those days they were together (recognizing that extent of breach is one of the primary factors considered, so even though less than 730, whether the credit was available or not was important). Since the PR was essentially living abroad and the citizen went to stay with the PR, the IAD concluded there should be no credit for their time together, the citizen was accompanying the PR, rather than the PR accompanying the citizen.


All of which leads me to express more caution about the accompanying a Canadian citizen spouse credit toward the PR RO. It does appear, indeed, that who accompanied whom can make a difference. This appears to loom more when the PR is, as I previously quoted, "well ensconced in the foreign jurisdiction."

The circumstances in which this arises probably are relatively uncommon, but nonetheless, and somewhat contrary to what I (and others) have previously oft posted, there are circumstances in which the PR-citizen couple living together might NOT be enough to be given the credit for accompanying a citizen spouse. Who accompanied whom can affect how this goes.

 

[bigleo2009]

Thanks to Depenabill and Leon, and all seniors at this forum.

Re Leon's reply, thanks to op10 you'v posted, is there any latest one as this is 2015 version, or they havn't updated from then. What I understand from this is, there should be no difference for accompanying spouse or minor, on page 31 it reads:

"R61(4), R61(5) and R61(6): Whether the permanent resident has satisfied their residency obligation through compliance with the criteria specified in R61(4), (5) and (6) for those permanent residents who are accompanying either a Canadian citizen or another Canadian permanent resident outside of Canada.
The burden of proof rests with the applicants to provide the necessary information and evidence to satisfy an officer that they are in compliance with the provisions of R61(4), (5) and (6). Examinations would typically address the following factors:
 whether the applicant is a bona fide spouse, common-law partner or “child“ of the person they are accompanying abroad;
 whether the applicant normally resides with the person they are accompanying abroad;
 whether the person the applicant is accompanying is a Canadian citizen or a permanent resident of Canada;
if the applicant is accompanying a permanent resident, whether that permanent resident is in compliance with their residency obligation."

So they are really checking above three factors. I think the "residing" factor shall be examined no matter spouse or minor. Correct me if I am wrong.

 

[bigleo2009]

There comes another little question, should short trips to a third country citizen has made while without PR spouse during the accompanying period be counted? (with stamps on passport) or it doesn't matter as long as the accompanying fact is there?

Leon and Depenabill, your opnion about this?

 

[dpenabill]

Toward maintaining clarity, this response is about a PR-citizen couple:

From what is reflected in the IAD decisions I previously cited and linked, it is apparent that to some extent visa offices and IAD are considering who accompanied whom. Thus, at least for purposes of PR Travel Document applications, if the history of the couple indicates the citizen has moved abroad to join a PR already abroad (particularly if for an extended period of time), this could be an important factor.

That is a very different response than the one I would have given two weeks ago (before seeing the two 2015 IAD decisions previously cited and linked) and a little contrary to what Leon suggested (I am guessing that Leon may not have been familiar with the two 2015 cases I cite above and with which I was not previously acquainted). And obviously contrary to other posts above.

There comes another little question, should short trips to a third country citizen has made while without PR spouse during the accompanying period be counted? (with stamps on passport) or it doesn't matter as long as the accompanying fact is there?

Foremost: probably NOT a good idea to rely on any days spent in different countries, notwithstanding ordinarily residing with one another. (This may be different for credit a dependent child might be given for accompanying a citizen parent.) In whatever way a visa office usually makes such a calculation, there is undoubtedly some risk that days spent in different countries will not get credited. So, even if it appears such days have been included for some, and one thinks they should be included, there is nonetheless a significant risk they will not be given credit.

Secondly, a reminder, cutting-it-close inherently involves risks. If the couple is cutting it so close that days spent on occasional trips apart could make the difference, the risk of elevated, intensive scrutiny and skepticism goes up considerably, in which case the PR may run into problems proving his or her case.


Regarding declaring periods of separation while abroad:

Note too that the application form allows for multiple on & off periods of time spent accompanying the citizen (that is, there are multiple lines in the form accommodating multiple start and end dates for periods of accompanying the citizen), suggesting IRCC expects periods of separation to be disclosed.


Beyond that, it is not at all clear how these periods of time might be calculated. Obviously, the credit will be applied practically, meaning that it is not dependent on the couple being joined-at-the-hip while abroad. A day here, three days there, spent apart, in different cities or regions or whatever, is not likely to be deducted from the calculation; that said, such days obviously could be deducted, especially any lengthy period of separation, and if it involves going to another country evidence of the time apart could be readily gleaned from the respective passports (remember, to support entitlement to this credit, passports for both the PR and the citizen-spouse must be submitted).

But there is another case which I did not cite above (and do not have the time to go find the citation at the moment) in which a big factor in denying the credit was the extent to which it appeared the couple were in different cities although in the same country. To some extent the facts there undermined the claim of cohabiting that full time, but IRCC's attention was mostly focused on the PR's failure to sufficiently show enough days together to meet the PR RO. And there have been other cases in which the IAD focused on indications of time separated, emphasizing that more needed to be proven than that the couple was in the same country and used a common address.

Even if generally the approach of the visa officer making the decision, regarding a PR TD application, is not as "restrictive" as the IAD in the Khan case (see http://canlii.ca/t/grz8t April 2015) suggested the provision for credit should be, it warrants remembering that the credit is indeed an EXCEPTION. Thus, if a situation is dependent on parsing things closely, the odds are too high they will be parsed in a way that goes against getting the credit.

The vast majority of situations in which the PR in a PR-citizen couple will get the credit are undoubtedly largely straight-forward, not a close call. PRs in these situations have little to worry about.

If, in contrast, the circumstances are such that a close call is in play, better to be sure everything is lined up with a margin of safety before making a PR TD application.

In other words, if it appears it could be a close call, if the outcome might depend on a few days here and there, exercise caution!

And an important reminder: it is presumed a PR abroad does NOT have valid PR status unless the PR has a valid PR card. The burden of proof in a PR TD application is fully on the PR, and this has tripped up more than an occasional PR abroad (fortunately the appeal process allows a PR to make up for this before the IAD, but of course meeting the burden tends to get tougher each step up the hierarchy).



Regarding a dependent child:

There are far fewer cases involving children accompanying a citizen parent.

While the form describing what qualifies for the credit is the same, there is nonetheless a huge difference. Children have minimal autonomy and are generally required to reside where their guardian, usually a parent, decides.

My sense is that so long as a dependent child is indeed ordinarily residing with a citizen parent (or PR who otherwise qualifies per employment or such), that time should earn credit toward the PR RO. But I am not sure of this.

Also note, so long as a child PR has not been adjudicated to have lost PR status, when the child PR reaches the age of majority IRCC will usually allow the child to retain PR status based on H&C grounds, the child having no independent capacity to return to Canada sooner.