The VO follow the guidelines for approval. If you don't meet the requirements then you get refused. Canada is somewhat flexible. They understand you may a 2-3 weeks of vacation and seem to accept short absences but 3 months is not a holiday. VO have seen it all so if you try to say it was for work you will have to back up why you physically needed to be in India.
Leaving Canada Temporarily while spouse's PR (outland) is in progress Sponser being PR and sponsorship eligibility is Approved
- Thread starter garuda2020
- Start date
You assume that there would be a line of questioning, i.e. that a sponsor deemed ineligible for reason of not being in Canada would have an opportunity to respond. I don't know that that's the case.
It's entirely possible the application would simply be cancelled and returned. While one might - hypothetically - challenge the decision, in practical terms it may not be at all useful, if all one would 'win' is the ability to apply again, i.e. to start over. Which one could do anyway, and where the same residency requirement would exist.
(This would be an interesting question to ask of one of these lawyers who claim they'd be able to 'win' in such a case - how would that work? Would an appellant gain anything, other than re-applying?)
I should have asked the question of your specific situation before. While there is no guarantee, my impression is that IRCC is not pursuing the issue with the objective of 'catching' people after the fact - but looking primarily at actual presence in Canada (i.e. at the time they consider the issue). But it's not really clear how or when or how diligently they pursue the issue at all.
At any rate, you've done what you can do - returned to Canada. (Remaining in Canada except for short trips would be advisable)
I think much of the discussion about this - and comments here - gets driven by those who either want to go abroad for longer periods or who are abroad already (for longer) and wish to remain, and want confirmation it'll be okay. No-one can give that confirmation.
But for those who have already returned, the risk is probably lower.
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Since I got confirmation from my attorney, IRCC agents and raised a webform (not sure if I'd get a response), I am planning to take the so called risk.. booked the flights for a 3 month wfh trip outside Canada. I still have a good 6 months left to reach the avg processing time on my application.
Will surely post my outcome, but its going to take a long time..
Will surely post my outcome, but its going to take a long time..
What did you 'raise' in your webform? Advised or asked that you will be out of country, and is that okay?
Just to warn: raising the issue in a webform does not resolve anything. IRCC will not (generally) respond in a way that constitutes giving anything that can be seen as advice or permission - it's your responsibility to comply with the requirements.
There was a case here just a few days ago of an inland applicant who wrote webforms to advise/ask about the PA being out of country, and got no response of any utility. When the confirmation came of PR status and it turned out the PA was outside of Canada, it was just cancelled.
It's not IRCC's responsibility to tell you your application is at risk - only yours. That doesn't tell us how your case will be treated, but the webform advising them doesn't solve the issue.
"Since the lawyer I paid, and who I will continue to pay if something goes wrong says it's fine, along with the call centre agents who are not visa officers and who are well known for providing incorrect advice, I have advised IRCC that I intend to render myself ineligible to sponsor a spouse. If IRCC does not take action against me despite me clearly no longer being inside Canada, I will return to these forums and tell everyone that it is perfectly fine to live outside Canada while being a PR and sponsoring a spouse, despite the clear eligibility criteria. I will also tell others they are wrong if they raise the risks of advising IRCC I intend to render myself ineligible to sponsor."
I didnt know so many self-proclaimed IRCC officers were on this forum. Now I see these officers have put a new immigration law preventing a PR from travelling just because they sponsor. Or may be these officers should take a chill pill with water and let us who struggle communicate with each other. No one has pointed a single denial due to travel ouside Canada. So I got all your threats, I am telling * you and moving ahead with my personal decision. I never instruct or intend anyone to follow me instead just serving as a case study here..
This search function on this forum makes it hard to find previous posts unless you have hours to read through threads. This situation popped up today and it looks like IRCC has realized that the sponsoring spouse is abroad.
https://www.canadavisa.com/canada-immigration-discussion-board/threads/cic-asking-for-my-paystub-and-i-am-not-currently-employed.729738/
I am always astounded when I read posts from people who seem determined to ignore reasonable advice about IRCC policies. While I have no dog in this fight it remains odd that some sponsors are eager to play with fire to try to prove that their personal wishes supersede government authority.
Thanks for taking to the time to find this article. But I don't see the relevance or am I missing something?
SA is done after employment verification. OP quit the job right after applying, so IRCC has requested for a recent paystub. According to your view if IRCC is aware of sponsor's travel then they should have issued a PFL or denial? why asking for a paystub? The OP here in this thread, just like me will continue to work for the same Canadian employer even on travel.
Can you folks be straight forward on what you are trying to accomplish by scaring the hell out of everyone in need? I mean what is that even you achieve by doing this? You have no proof of a denial due to travel and no where it is written on IRCC, so all I can assume is either you are getting paid here to annoy ppl or don't have a life together
I totally understand advice is always free, but has to be limited. This is insane
No-one claimed it is a 'denial to travel' but that sponsor must be resident in Canada, not in violation of residency for 'short holidays or business trips outside Canada on a temporary basis.'
If you believe that your planned trip is a 'short trip', and are willing to bear the consequences if IRCC should decide otherwise, that's your choice.
Here is the source:
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-assessing-sponsor.html
As you can see this is the operational bulletin/manual for assessing family class sponsorship and specifically the sponsor.
The relevant text is:
"A sponsor must be residing in Canada, unless they are a Canadian citizen residing abroad sponsoring a spouse, common-law partner, conjugal partner or dependent child (provided that the dependent child does not have dependent children of their own) [R130(2)].
Sponsors who maintain a principal residence in Canada are not considered to be in violation of residency requirements if they:
- take short holidays or business trips outside Canada on a temporary basis
- have work arrangements that require them to be outside Canada for temporary finite periods of time, but return to live in Canada in between assignments (such as ship crew or seasonal workers)"
I am a full time employee in a Canadian Bank and I pay mortgages in Canada. I travel to WFH abroad with written permission from my Candian employer, who withholds taxes to the CRA. So how does my principal residence change if I WFH abroad for just 2-3 months?
In your post, you seem to have avoided the below text,
"Persons who do not maintain a principal residence in Canada and who live and work abroad and only return to Canada for short visits are not considered to meet residency requirements."
A sponsor is ineligible when he/she is unable to meet the income requirements of $XYZ... it is written as is.. hence practiced as written. Why is it assumed that if a PR takes long holidays then they are in violation? it is not written there
These are only two conditions stated, so as per your hypothesis this document should read
Sponsors who maintain a principal residence in Canada are
- take long holidays outside Canada
There are so many threads with the same question for years and same advice has been given out here. Not even once anyone has come back with a refusal. I even went through the refusal thread in and out.
https://www.canadavisa.com/canada-immigration-discussion-board/threads/can-sponsor-leave-canada.173006/
https://www.canadavisa.com/canada-immigration-discussion-board/threads/leaving-canada-during-spousal-sponsorship.434352
https://www.canadavisa.com/canada-immigration-discussion-board/threads/sponsor-travelling-outside-canada-after-submitting-outland-spousal-sponsorship.707778/
From the PMs I send/receive, I can see ppl take LONG holidays and still get approved/processed
canlii.org has multiple denials issued under R130(subsections). I went through at least 50+ recent cases and none of these sponsors have established reasonable ties to Canada while travelling, that was the only reason why a refusal was issued and NOT FOR JUST STAYING 2-3 MONTHS ABROAD (while maintaining all ties in Canada)
Here is a recent refusal from 2020 - https://www.canlii.org/en/ca/irb/doc/2020/2020canlii50490/2020canlii50490.html
The Chief Justice is quoted below for what it means to “reside in Canada”
- What does “reside in Canada” mean in the context of section 130(1)(b)
- [15] Because the Appellant is a permanent resident (PR) in Canada, it is perhaps understandable that she might have presumed meeting her residency obligation pursuant to section 28 of IRPA was sufficient to establish residency for the purposes of sponsoring her husband, a foreign national. Unfortunately, this residency obligation provision is not the same as the one at issue in this case. Maintaining one’s own status as a permanent resident by spending 730 days in Canada within a five-year period is a personal obligation and meeting this requirement does not necessarily lead to a conclusion that a person resides in Canada which necessarily involves an actual physical presence for a sustained period of time. One might be an itinerant resident of Canada with a PR card but still maintain significant ties to another country where one spends three out of every five years. The legislation does not provide that once a person is a PR, he or she can automatically sponsor another person. Section 130 imposes additional conditions, including a PR being over the age of 18 and residing in Canada as noted in paragraph 11 above. Thus, not all permanent residents are sponsors.
- [16] That said, section 130 does not define or describe what it means to “reside in Canada”. Guidance in determining whether a potential sponsor regularly, normally, customarily, or actually lives in Canada comes from the courts through jurisprudence which has evolved in the citizenship and immigration realm. In IAO,[5] Chief Justice Crampton described factors which go “to the heart of the issue of whether a person resides in Canada for the purposes of paragraph 130(1)(b)” and summarized, with approval, the factors the IAD member considered in IAO as follows:
- • “The extent of physical presence in Canada prior to sponsoring an application for permanent residence;
- • The extent of physical absences from Canada;
- • The location of immediate family members and dependents;
- • A comparison between the quality of connection to Canada and connection with another country;
- • Whether the pattern of physical presence in Canada indicates a returning home or merely visiting Canada.”[6]
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then go ahead and move outside of canada as a PR sponsoring a wife. make sure you send a webform while you do it to let IRCC know since you're confident there will be no issues.
First, I honestly commend you as you have done considerable research and you feel comfortable that your case is strong. That's your decision as you believe the risk is low in your case. (I warn that the risk for other PRs will be different, according to their circumstances - since unfortunately many take cases that they claim are similar to their own and the facts of the case differ - and that's what matters).
I agree with you on quite a bit of what you've written, actually. You're right that I did not draw attention to the question of 'principal residence in Canada.' That's because it's actually NOT a simple matter - what I've consistently objected to are arguments that attempt to say (for example) "I'm tax resident in Canada, therefore resident." The IAD cases confirm this. I kept this part short in the interests of simplicity; it's fine if you think that it's been over-simplified.
What is clear is that 'short visits' abroad are allowed. In between, there is considerable gray area. Hence, I believe that for most applicants, when they want to know what is 'allowed', it is solid advice to say 'short visits.' (Unfortunately no good definition of what are considered short visits - I'm not going to debate that, except to say that less than one month is almost certainly a short visit).
The problem - that I've attempted to highlight previously - in simple terms, is that we do not know what approach IRCC takes when they make refusals based on s130 (and the related 133). If any individual believes that their chances of being refused on this basis are low (based on research into actual cases or what they've heard or whatever), fine - that's their choice.
BUT: there is a VERY large practical difference for most applicants if they are refused and then winning on appeal - because it will mean a LONG time period (delay) in winning, getting re-evaluated and then being approved subsequently. (Or alternatively applying again and starting over - which may in many cases be the only practical route in terms of completing their family sponsorship in a reasonable period of time.)
There are a few other points that jump out from my (very brief) look at the cases referenced:
-the regs in 133 say that "a sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor is a sponsor described in section 130 of the IRPR." This is a bit circular as the language in section 130 says 'resident' (which therefore refers to the same test as you outlined) BUT does seem to be commonly interpreted by IRCC as meaning that the PR must be physically present in Canada on the day of filing. My point is that this shows the problem: strictly speaking by the legal interpretation you argue, there is no such requirement - the longer, several point, more subjective residency test should apply; BUT in practice, it's a bad idea for a PR-sponsor to apply from abroad (they do get returned).
-As a practical matter, there is some likelihood that 'the day a decision is made' may also be important, e.g. if IRCC officers actually check presence in Canada when/at the time they 'make a decision' - not enough information to say. The risk for a PR-sponsor is that there is no way to know when a file will be looked at (the 'decision day') and hence no way to plan in advance. There's also uncertainty about whether this means the day the sponsor is approved (sponsor eligibility) or PA eligibility or both.
-the IAD decisions make very clear that if a sponsor is not eligible under s130 and s133, there are no exemptions for humanitarian and compassionate considerations and they will not be considered on appeal. I note this because sometimes posters here argue that "it's not fair" or similar arguments should be taken into account. And the answer is simple: they are not. The 'fairness' doctrine that applies is whether the sponsor is a resident or not.
-In at least one of the cases I looked at, the sponsor returned to Canada for the time of appeal, i.e. was factually resident in Canada at the later date, and was still refused on this basis by IAD. In other words, returning to Canada after-the-fact does not (necessarily) help. (Granted that case was much more complex and the facts substantially different - but it does underline an important point, re-establishing 'residency' is not a fix).
-The IAD cases and language provide multiple tests, including 'the extent of physical presence in Canada prior to applying'. Now it seems (from what you've written) that you are well-established in Canada prior to applying - many posters here, however, are not - in fact quite recently landed. With respect to 'advice' given here, or at least comments about what is risky or safe, we usually do not know the details of the applicant or sponsor. Given that, it is not unreasonable to be cautious in giving advice or noting what is 'safe.'
-The court cases also make reasonably clear that for a PR, there is a significant difference between being employed by a Canadian company and being required to be on a temporary assignment abroad and being employed by a Canadian company and just working abroad/choosing to work abroad for a Canadian company. (It's also clear that this is just one factor to be looked at). My point here is that we've seen multiple posters claiming that being on 'work from home' means they can be anywhere because they're working for a Canadian company. That may be one positive contributing factor in terms of the residency determination - but that is distinct from the language about being on an assignment where one is temporarily required to be abroad. (The point being that "I'm employed by a Canadian company" is not in and of itself the test)
Now as I said, I think you've done extensive research and feel your specific case is strong. Fine - that's up to you.
You make the case that the 'general advice' here is overstated in terms of the risk of being refused. That's also fine and not unreasonable. It may be the case for many applicants/sponsors.
However: it's also not unreasonable to say that the regulations provide clear guidance for only one case - the sponsor being factually (physically) resident in Canada and taking 'short trips' abroad (with unfortunately no clear definition available); that the risk exists it will be refused if IRCC determines otherwise; that 'redress' (e.g. appeal) may be lengthy and painful and costly, meaning re-applying may be the only practical course; and that IRCC officers make their own decision about what constitutes 'residence'; and that it seems there will be no direct possibility for sponsors to explain their case and circumstances (apart from by appealing). Also, there is no way to get 'approval' or confirmation in advance that IRCC will accept that your trip is short or that you are resident in Canada - you will only know after the fact.
I am mostly on the side of this: for those who want to know what is 'safe', saying 'keep your time abroad to short trips' is straightforward, simple, and practical. (Since we don't know the other details of each case). Anything else is at the risk of the sponsor.
There are many arguments made, however, in support of why it should be okay that are just wrong or out-of-date, such as IRCC doesn't / can't know if the sponsor is abroad. Or posters who want support for their 'right' to be abroad during the process - there's no such right (or rather, there's no right to be abroad and be an eligible sponsor).
Good luck.
screech339
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While I give you kudos for your research, it doesn't matter how much research you want to justify your choice, at the end of the day, it's the visa officers that decides. If you are so confidence that you are on the right side of your choice. Put money where your mouth is. Be Rosa Parks. Challenge the PR sponsorship rules if you think PR sponsorship rules are unfair like Rosa Parks did . Inform IRCC and officially submit documentation that you are PR sponsor currently living and working outside Canada. Verbally calling call center informing this is not good enough as they are not visa officers that makes decisions on the application. If you are not willing to officially inform IRCC of your current situation of living / working outside Canada as PR, then you really hope they don't "catch" you.. You are no different from anyone else who want to get a pass on their PR sponsorship violation. Your argument to support your case then become moot.
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