Hello Everyone,
I'm trying to calculate my "physical presence" days to see if I'm eligible to apply for citizenship. My refugee claim was denied. I was however, granted PR status under H&C grounds. Throughout the whole "refugee and H&C" application process I was able to remain in Canada due to a moratorium placed on people from my country. Do I include the days before I became a PR when calculating physical presence even though I was not a successful asylum applicant, or do I only count the days after PR status was granted?
Thanks!
I largely agree with the observations by @
Quink in the abstract, and in particular that whether you are entitled to credit for any of the days you were in Canada prior to obtaining PR status depends on determining whether you had temporary resident status or protected person status.
That said, since it is fairly clear you did not have protected person status pending the approval of your PR application, since your refugee claim was denied, the question is whether you had temporary resident status. I suspect not. My impression is that you will only be able to count days since you became a PR.
That is, rather, it
appears (emphasis on
appears, as in not-for-sure) you were allowed to stay without status, as in not subject to actual removal proceedings despite not having status, pending the H&C application for PR. This is somewhat common. For example, it can be similar for inland spousal sponsored PR visa applicants whose status has lapsed or terminated, pending the issuance of an OWP or full PR status; they do not have legal status but the government will not pursue their actual removal pending a decision as to either temporary status (such as per a work permit pending the PR application itself) or sponsored PR status.
Note, for example, it is clear that time in Canada awaiting a decision on the refugee claim is not given credit, even though Canada allows the claimant to remain in Canada pending a decision. Not much likely the denial of the refugee claim and making a H&C application for PR results in the grant of resident status to the claimant.
My
impression, thus, is that
NO, no credit for days in Canada prior to the date your PR was approved and you became a PR.
IF HOWEVER you have the impression you had temporary resident status of some kind (rather than just not being deported), you should make an effort to find out for sure. The actual terms and application of the moratorium are what matters, meaning whether by its terms it gave you temporary resident status rather than simply withholding or deferring deportation action. As @
Quink observed, if you had temporary resident status you would be entitled to a half day credit for days in Canada within the preceding five years, up to a maximum 365 days credit.
If you had a representative assisting you in your H&C PR application, your representative should be able to give you a definitive answer as to what your status was prior to being granted PR. Otherwise an immigration lawyer, particularly one who has a practice providing services to refugees, should be able to answer the question (the question is whether you had temporary resident status or protected person status prior to a grant of PR based on H&C grounds). Ordinarily I emphasize obtaining a
paid-for consultation (at best, you get what you pay for from a lawyer, and indeed it is tough to get that much from most lawyers), but this is a question I hope lawyers will be willing to answer in a brief, free, perhaps even telephonic consultation. (No guarantee one will, but they should.)
