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 ?

 

[victoreberhart1]

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 ?

Stay in MAGA land.. we have enough flip flops here

 

[Rahul61]

Stay in MAGA land.. we have enough flip flops here

This is not a political discussion.
I’m asking a genuine question about Canadian PR residency rules and real-world renewal outcomes.
If you have factual information or personal experience relevant to this, please share. Otherwise, let’s keep the thread on topic.

 

[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.