Application of Section 28 of the Immigration and Refugee Protection Act

[htransf]

Hello everyone,

Apologies if this topic has already addressed elsewhere on the forum. If it has, please direct me to the thread.

Background Information: My spouse (dual US & Canada citizenship) has been living and working in the US. I (US citizen) applied for PR (from outside Canada) and obtained PR in May 2022 (via soft landing). I have received the physical PR Card. We are currently living in the US and are planning to move to Canada (Victoria, BC is our target) when his mother (who is 93) passes away. So the timing of our move is undetermined at the moment. Since I am outside Canada for the duration, my question is this: in terms of fulling residency obligation (730 days out of 5 years), would section 28(2)(a)(ii) apply to my case, given my spouse is living and working in the US? I can supply evidence of us living together in the US. Also, I have been in Canada less than 1 week since May 2022.

My thinking is that if I am qualified for section 28(2)(a)(ii), it would give us a lot of flexibility to meet the residency obligation. Otherwise, I would need to start clocking in the days in the next four years, which means living apart most of those 730 days and maintaining two residences.

Any insight and comments provided are much appreciated.

 

[Ponga]

Are you familiar with the `who followed whom' in terms of your situation?

At first glance, it would appear that your days spent outside of Canada with your Canadian spouse, would in fact count towards your R.O., but...have a read through some of these posts:
https://www.canadavisa.com/canada-immigration-discussion-board/search/22723135/?q=who+followed&t=post&c[child_nodes]=1&c[nodes][0]=11&o=relevance

Starting with this one:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

This part in the link jumps out to me:
That is, usually (not always, but close): PR/citizen couples living together abroad do not need to worry about qualifying for the accompanying-Canadian-citizen-spouse-abroad credit as long as they were living together IN Canada and are accompanying one another abroad.

Since it doesn't appear that you have actually lived in Canada, you may or may not have an easy time with this.
Good luck!

 

[htransf]

Thanks for the url. Yes, I heard about the "who followed whom" rule but am not sure how it would apply to my case since I have not actually lived in Canada before or after our marriage. So, I would not follow him. Would I be able to say that he stays in the US because of me and thus "followed" me?

 

[Ponga]

Thanks for the url. Yes, I heard about the "who follows whom" rule but am not sure how it would apply to my case since I have not actually lived in Canada before or after our marriage.

Therein lies your potential problem, IMHO.

 

[Ponga]

Your potential problem doesn't really begin to materialize until May 2025.

 

[htransf]

Therein lies your potential problem, IMHO.

You are quite right. Hence, my solicitation for comments and insight. In the end, it would be up to IRCC

 

[dpenabill]

Hello everyone,

Apologies if this topic has already addressed elsewhere on the forum. If it has, please direct me to the thread.

Background Information: My spouse (dual US & Canada citizenship) has been living and working in the US. I (US citizen) applied for PR (from outside Canada) and obtained PR in May 2022 (via soft landing). I have received the physical PR Card. We are currently living in the US and are planning to move to Canada (Victoria, BC is our target) when his mother (who is 93) passes away. So the timing of our move is undetermined at the moment. Since I am outside Canada for the duration, my question is this: in terms of fulling residency obligation (730 days out of 5 years), would section 28(2)(a)(ii) apply to my case, given my spouse is living and working in the US? I can supply evidence of us living together in the US. Also, I have been in Canada less than 1 week since May 2022.

My thinking is that if I am qualified for section 28(2)(a)(ii), it would give us a lot of flexibility to meet the residency obligation. Otherwise, I would need to start clocking in the days in the next four years, which means living apart most of those 730 days and maintaining two residences.

Any insight and comments provided are much appreciated.

You have strayed into what-can-happen but does-NOT-happen-often terrain. So it is difficult for anyone to forecast what will happen.

As @Ponga referenced, in regards to determining if you comply with the PR Residency Obligation, there could be (emphasis on what could happen, not necessarily what will happen) an issue with whether you qualify for the "accompanying" a Canadian citizen spouse abroad credit. If this is questioned (and very often it is not but it can be), it would be hard to say you accompanied your spouse abroad since you never actually lived with your spouse in Canada -- hard to accompany, or "go with" someone in traveling abroad from Canada unless you are actually with that someone IN Canada to begin with.

Assuming you were sponsored for PR by your spouse, what then elevates the risk of this issue arising in such cases is that it is readily apparent, for example, that either there was a major change in plans AFTER the sponsored spouse obtained PR status, or there was misrepresentation as to plans to relocate to Canada during the process of obtaining PR status.

(Reminder: to qualify for sponsored PR status, the sponsor and PR applicant must intend to relocate to Canada when the sponsored spouse is granted PR status, and in the application process present concrete plans to that effect; obviously, at any time prior to the sponsored spouse actually becoming a PR, prior to the actual landing, there is an obligation to notify IRCC of any change in intent or change in plans, and the failure to do so would be misrepresentation by omission.)​

It does not appear that IRCC aggressively investigates these scenarios for misrepresentation. So much so there is little if any reason to worry that will happen.

But, when the PR later makes an application for a new PR card and reports information like address history, and if relying on credit for the accompanying-Canadian-citizen-spouse credit, the citizen spouse's address history as well, the fact that the couple did not relocate to Canada as they represented they would tends to stand out, and while it is not likely to trigger inadmissibility proceedings on the grounds of misrepresentation, it can trigger elevated scrutiny of things like RO compliance. Does that mean it will trigger an issue about whether the PR actually accompanied the citizen spouse abroad? We do not know to what extent this increases the risk. We know it can. We know that patterns of circumstances suggesting the possibility of misrepresentation tend to elevate scrutiny generally (even though they do not trigger prosecution for misrepresentation itself).

All that said, as I noted at the outset, this is very much in the realm of what-can-happen rather than what-is-likely-to-happen.

It is probably worth noting that the more time spent in Canada, and the more often, seems to appease IRCC and CBSA concerns. Ongoing ties to Canada tends to lower risks. Probably not worth making special trips just to have time in Canada to report (doing that tends to be more obvious than many apprehend), but if you and your spouse have ongoing ties here and spend significant periods of time here, so far as the cases seen (mostly in published IAD decisions), and anecdotal reporting indicates, that should be enough to have little or no worry even though your total time in Canada falls significantly below the 730 days/five years threshold . . . but no guarantees.

 

[bricksonly]

You'd better stay in Canada for 6 month and up, better to file a tax return, then leave...that to say, you ARE LEAVING with your spouse...

 

[htransf]

Thank you, everyone, for your comments and insights. Spouse and I talked about this matter. So, we will wait until MIL passes away and then move North. In the mean time, I will start spending more time in Canada, with and without the spouse. If I don't accumulate the requisite 730 days at the time I need to apply for PR renewal (assuming that we will be living in Canada by that time), we'll either re-apply for a new PR (if required by the IRCC) or return to the US. We are very fortunate that we have options. Thanks again for your comments.