Hi,
both couple left Canada together as PR in 2012 (assuming wife accompanies husband) and wife applied for citizenship before leaving. In 2015 wife returned to Canada to attend citizenship oath and became a citizen. Then wife went aboard to live with husband again.
From the day wife as a citizen to present, will this period of over 3 years that the couple lives together account for PR-husband's RO?
Thank you.
SOMEWHAT SHORT ANSWER:
Maybe. Possibly. Meaning that the time the PR has been living together with a citizen spouse might get credit toward meeting the PR Residency Obligation. Indeed, the credit has typically been allowed so long as it is clear the PR is living together with the citizen spouse.
But in the situation described, the
who-accompanied-whom question looms large and PROBLEMATIC. The credit is based on a PR accompanying a citizen spouse. You concede this is NOT the case. Moreover, the facts and circumstance tend to show this anyway.
I cannot forecast how this will go. It might depend on many other facts in your situation. There are unresolved conflicting views about what the law actually requires, with some IAD panels specifically deciding the opposite of other IAD panels.
This is discussed in-depth and at-length in another topic:
"Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE"
see
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
LONGER EXPLANATION:
This might be a tricky scenario which would be difficult to forecast,
EXCEPT you make it clear that the reason for the citizen to be abroad is to accompany the PR ("
assuming wife accompanies husband" in conjunction with the wife now being the citizen). Since the PR has been abroad more than three out of five years, and there is NO credit available for accompanying a citizen spouse (NO credit since the citizen spouse is the one accompanying the PR rather than the other way around), the PR is clearly in breach of the PR Residency Obligation.
As noted, there is a credit toward the PR Residency Obligation for PRs who accompany a Canadian citizen spouse abroad. Applications for a new PR card or for a PR Travel Document do NOT request information specifically about
who-accompanied-whom or why the couple is abroad. So long as the couple have been living together, generally IRCC (CIC before the name change) has given credit for the time living together, again without specific inquiry as to
who-accompanied-whom, or why. BUT WITH SOME EXCEPTIONS.
SOME NOTABLE EXCEPTIONS. More recently (last few years), HOWEVER, a number of IAD decisions indicate that IRCC has been more strictly considering the
who-accompanied-whom question.
Again, there is an in-depth discussion about this in the topic
"Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE" See
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
Since you leave no doubt about
who-accompanied-whom, however, there is not much of an argument in favour of allowing the credit here.
Additionally, even without that concession, the facts and circumstances fit a pattern which appears likely to draw attention, scrutiny, and a more strict approach to applying the rules. After all, the purpose of granting PR status is so the person CAN LIVE PERMANENTLY IN CANADA, whereas these circumstances bear little indication the PR is doing this.
This issue can be confusing since it has long appeared to be the general approach (which has been applied in Federal Court decisions as well as IAD decisions) that allowance for the credit is focused on crediting time the PR and Canadian-citizen-spouse actually LIVE together abroad. Thus, so long as the couple were living together, ordinarily there is NO PROBLEM with getting credit.
Usually! BUT NOT always.
Allowing the credit for time living together is essentially the oft referenced approach outlined in ENF 23 "Loss of Permanent Resident Status." This, however, is not law, and it generally carries little weight (it helps illuminate what IRCC does and why, but is not binding). And the IRPA Regulation 61(4) tends to support the approach crediting time the couple are living together (see
https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-14.html#h-32).
But the statute itself specifically prescribes the credit is for a PR "outside Canada accompanying a Canadian citizen" (IRPA Section 28(2)(a)(ii); see
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-20) and several IAD panels have specifically ruled or upheld rulings that reject the credit where the citizen accompanied the PR.
Without revisiting a lot of that discussed in the topic specifically addressing
who-accompanied-whom, the scenario you describe seems to among those more likely to trigger
who-accompanied-whom analysis with an elevated risk of a negative determination.
OPTIONS:
If and when there is a plan to return to Canada, the PR can apply for a PR Travel Document. If that is denied, the citizen spouse can commence an application to sponsor the spouse for a new PR visa.
