Which leads to this (continuing post):
Again, clients do not usually want to pay for the equivalent of going to law school.
While a good lawyer should and will be able to speak to all the relevant facets of a situation,
it is for sure NOT true the good lawyer always will or even generally will.
On the contrary, lawyers more commonly give advice they expect the client to follow (that's a big part of what the client is paying for: to be informed what to do) without wandering into the weeds (which would tend to confuse most clients anyway), without racking up a huge for-the-client's-edification bill elucidating details most clients are not much interested in and even more are not anxious to pay for.
In particular, lawyers commonly do not explain all the nuances underlying their advice.
Not even close. Most clients do not want to pay for the amount of time that would take. When there are several aspects to a matter, and dozens of potential issues and dozens more sub-issues for which further elaboration is possible, and just one fifteen minute additional explanation for any one of those means an additional $100 to $150 in costs, clients generally expect their lawyer to be circumspect, to not run up the bill, and keep it focused on what the client needs to know.
In the context here, the advice was simple, direct, and
SAFE:
be sure to comply with the PR Residency Obligation, the 2/5 rule.
If the PR referenced in the OP here followed this, the lawyer's advice, the CAVEATS/CAUTIONS I posted initially would have little relevance. The odds of any problems at all would be very low.
When the PR referenced in the OP here anticipated NOT following that advice, it would have been prudent to further consult with the lawyer about the alternatives and their potential consequences.
Lawyers generally expect their clients to follow their advice OR be upfront about not doing so. Competent, conscientious lawyers will provide the client with enough information to recognize risks and consequences for failing to follow the advice provided. The advice referenced here appears to have come with sufficient context in this regard. To be safe, comply with the PR RO.
NOW we get the critical part; not explaining beyond advising compliance with the PR RO:
Again:
The vast majority of participants in this forum probably would NOT even have advised the OP to comply with the 2/5 obligation. Conventional wisdom is: PR married to and cohabiting with a Canadian citizen, credit for accompanying citizen spouse available, no need to worry about the 2/5 rule. And that sort of
advice tends to be rather common in this forum. Little if any regard for the possibility the OP's situation might NOT be so straight-forward, might not fit the general rule.
I do not know the details of the OP's situation. There might not be any reason at all for any concerns. But the known circumstances as described leave open, wide open, the possibility of circumstances giving reason to take my previous discussion of caveats seriously. I noted that notwithstanding those concerns, odds of avoiding a problem are good and particularly so the sooner they arrive TOGETHER in Canada to live in Canada. As I have oft said, it is NOT as if IRCC will go dredging through the weeds to find an excuse to take away a PR's status, and particularly so if the PR is in a genuine marriage with a Canadian citizen and is now settled in Canada.
Odds of no problem would have been better, a lot better, if pursuant to following the lawyer's advice they had relocated to Canada sooner rather than later, in time to comply with the PR RO based on actual presence in Canada (in time to meet the 2 years in Canada out of five rule).
The following may not be much if at all relevant to the OP's situation. The circumstances do, however, suggest the possibility of a somewhat similar situation in which the particular circumstances might indeed lead to problems. Again, the OP's situation might not be much at all like this (and hopefully the OP's situation is actually better than this), but the few circumstances indicated could arise where:
-- Canadian citizen was born abroad and subsequently has had either minimal personal residential ties in Canada or no recent residency in Canada prior to the sponsorship application
-- Sponsorship application made while citizen sponsor was abroad, predicated on presenting a concrete plan to relocate to Canada
-- Only brief VISITS to Canada after spouse obtains PR (couple did NOT do as represented they planned to do)
-- PR has no history of residing in Canada
-- Couple are residing in country where PR resided prior to relationship
-- PR has been outside Canada 3+ years since landing
As previously noted, such circumstances potentially raise
TWO RED FLAGS, either or both of them.
As I elaborated in my CAVEATS post, these circumstances are consistent with those cases in which IRCC and the IAD have not applied the general rule, that cohabitation with citizen spouse warrants credit for "accompanying" citizen spouse, and
instead actually parsed who was accompanying whom. In the circumstances just outlined, on its face it is clear, after all, the PR did NOT accompany the citizen abroad. There have been, indeed, very, very few cases where this has been targeted. These circumstances, however, are in line with the reasoning of those cases where it has happened. These circumstances suggest the kind of case which do not follow the general rule. Again, after all, it is clear on its face the PR did NOT accompany the citizen abroad. It is one thing to not go digging into who accompanied whom. It is likely a rather different thing when it is readily, obviously, apparent the PR did not accompany the citizen abroad.
ADD to that the potential perception of fraud, the appearance there might not have been a genuine plan to relocate as represented in the sponsorship application. This undoubtedly elevates the risks.
And let's be clear: much of the situation I just outlined is probably not that uncommon.
EXCEPT most will have followed through on the plan to relocate, or some semblance of it resulting in relocating in Canada less than three years after landing. And the PR would have then resided in Canada long enough for there to be no obvious reason to question who accompanied whom if the couple moved abroad again. That is, long enough for the couple to be residing together in Canada and then go abroad accompanying one another, or the PR alone residing in Canada before in fact accompanying the Canadian citizen abroad. No hint of fraud in the sponsorship application, no reason to question the couple's credibility, no reason to doubt eligibility for the accompanying-citizen-spouse credit toward the PR RO.
NO PROBLEM.
All they had to do was follow the lawyer's advice.
Anyone electing (or compelled by contingencies) to not follow advice obtained from a lawyer, really should proceed with caution. Get an update on the advice, with consideration given to changed circumstances or intentions. Research and figure out the ramifications. Do some homework. Be very, very cautious about "advice" in forums like this.
It is all too easy to bang out ridicule of a lawyer or the advice of a lawyer on the internet. But
if the question is serious enough to obtain a lawyer's advice, it is too serious to cavalierly disregard it. Which is not to suggest blindly following a lawyer's advice. Making reasoned, informed decisions is always appropriate, even for those relying on a lawyer.
