Some keeping-current observations:
Most PR Residency Obligation appeals are resolved at the IAD and few lead to Federal Court review. A couple relatively recent Federal Court decisions offer some insight regarding two issues which often arise in the forum:
-- whether circumstances compelling a PR to remain abroad to work can be a positive H&C factor tipping the scales in favour of a successful H&C case
-- the extent to which employment abroad for a Canadian business must be TEMPORARY for it to qualify for the credit toward compliance with the PR RO
Can circumstances compelling a PR to remain abroad to work be a positive H&C factor: YES
The first of these issues was addressed in
Public Safety and Emergency Preparedness v. Nkanagu 2018 FC 56
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/309488/index.do
The decision is by Justice Shore.
PR less than five years was examined and reported about seven months prior to the fifth year anniversary of his landing.
Regularly visited family in Canada during those four and a half years.
There is some suggestion the residency examination was triggered by a notebook found in a search of the PR's luggage, which showed the PR regularly visited his family for summer holidays and again for winter holidays.
Total time in Canada: 329 days.
Key factor: remained abroad because of inability to find work in Canada, so kept job in Europe to support family.
IAD granted appeal on H&C reasons. Minister appealed, arguing (consistent with views oft expressed in this forum) that the PR "chose" to work abroad and that does not suffice to make the H&C case.
Federal Court dismissed the Minister's appeal.
Caveat: there are a number of particular, perhaps peculiar nuances in this case which distinguish it from cases in which circumstances did not sufficiently make out an H&C case where the PR was compelled to keep working abroad . . . including, for example, the fact this individual is approaching retirement age.
Thus, while the IAD and Federal Court gave positive H&C weight (sufficiently so to tip the scales allowing this PR to keep PR status) to circumstances compelling the PR to stay working abroad, this case does NOT stand for the proposition that other PRs are likely to obtain favourable H&C consideration due to difficulty finding work in Canada.
BUT IT DOES ILLUSTRATE THIS ISSUE CAN GO BOTH WAYS, it can be a positive factor in some situations (such as the one in this case) even though the more common outcome is that staying abroad to work is indeed considered a choice and more often than not either does not help much or does not help make an H&C case at all.
REMINDER: PR RO compliance H&C cases are difficult, tricky, and there are virtually no definite rules, few if any for-sure this-fact-results-in-this-specific-outcome.
Note some additional positive factors in this case:
-- filed Canadian tax returns
-- owner of a house in Canada
-- savings in Canada
In many cases these factors have not helped much. In the particular circumstances of this case, however, they did. Note too the PR appears to have documented the extent to which he made a concerted effort to find employment in Canada.
The extent to which employment abroad for a Canadian business must be TEMPORARY for it to qualify for the credit toward compliance with the PR RO
As much as some may find the previously discussed case a surprise, the outcome of this case should be NO surprise. The general consensus here has long emphasized how difficult it can be to qualify for the credit, toward PR RO compliance, based on working abroad for a Canadian business.
The decision by Justice Russell further illustrates this, and overrules an IAD decision which had effectively allowed the credit based on an implied term that the PR would "return to Canada at the completion of his assignment" abroad.
This is the Citizenship and Immigration v. He 2018 FC 457 case
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/309704/index.do
The Minister appealed the IAD decision. And won.
The Federal Court concluded: "There is a 'possibility' that, at some time in the future, [the PR's] present employer may hire him to work in Canada, but this is not a contractual commitment. On the evidence, no implied term can be read into the contract of employment that the [PR] is on assignment . . . and will be returning to work [in Canada] for the company at some future date."
Thus, the employment did not meet the requirements to qualify for credit (even though the PR was employed by a Canadian business).
Federal Court noted, however, that the PR in this case (and his accompanying spouse, also a PR) could present H&C arguments upon review by a different IAD panel.
In any event, the case highlights the importance of the temporary nature of the job and to qualify for the credit it may even be necessary to show the Canadian business is contractually committed to providing the PR with employment in Canada at the conclusion of the "assignment" abroad.
Most PR Residency Obligation appeals are resolved at the IAD and few lead to Federal Court review. A couple relatively recent Federal Court decisions offer some insight regarding two issues which often arise in the forum:
-- whether circumstances compelling a PR to remain abroad to work can be a positive H&C factor tipping the scales in favour of a successful H&C case
-- the extent to which employment abroad for a Canadian business must be TEMPORARY for it to qualify for the credit toward compliance with the PR RO
Can circumstances compelling a PR to remain abroad to work be a positive H&C factor: YES
The first of these issues was addressed in
Public Safety and Emergency Preparedness v. Nkanagu 2018 FC 56
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/309488/index.do
The decision is by Justice Shore.
PR less than five years was examined and reported about seven months prior to the fifth year anniversary of his landing.
Regularly visited family in Canada during those four and a half years.
There is some suggestion the residency examination was triggered by a notebook found in a search of the PR's luggage, which showed the PR regularly visited his family for summer holidays and again for winter holidays.
Total time in Canada: 329 days.
Key factor: remained abroad because of inability to find work in Canada, so kept job in Europe to support family.
IAD granted appeal on H&C reasons. Minister appealed, arguing (consistent with views oft expressed in this forum) that the PR "chose" to work abroad and that does not suffice to make the H&C case.
Federal Court dismissed the Minister's appeal.
Caveat: there are a number of particular, perhaps peculiar nuances in this case which distinguish it from cases in which circumstances did not sufficiently make out an H&C case where the PR was compelled to keep working abroad . . . including, for example, the fact this individual is approaching retirement age.
Thus, while the IAD and Federal Court gave positive H&C weight (sufficiently so to tip the scales allowing this PR to keep PR status) to circumstances compelling the PR to stay working abroad, this case does NOT stand for the proposition that other PRs are likely to obtain favourable H&C consideration due to difficulty finding work in Canada.
BUT IT DOES ILLUSTRATE THIS ISSUE CAN GO BOTH WAYS, it can be a positive factor in some situations (such as the one in this case) even though the more common outcome is that staying abroad to work is indeed considered a choice and more often than not either does not help much or does not help make an H&C case at all.
REMINDER: PR RO compliance H&C cases are difficult, tricky, and there are virtually no definite rules, few if any for-sure this-fact-results-in-this-specific-outcome.
Note some additional positive factors in this case:
-- filed Canadian tax returns
-- owner of a house in Canada
-- savings in Canada
In many cases these factors have not helped much. In the particular circumstances of this case, however, they did. Note too the PR appears to have documented the extent to which he made a concerted effort to find employment in Canada.
The extent to which employment abroad for a Canadian business must be TEMPORARY for it to qualify for the credit toward compliance with the PR RO
As much as some may find the previously discussed case a surprise, the outcome of this case should be NO surprise. The general consensus here has long emphasized how difficult it can be to qualify for the credit, toward PR RO compliance, based on working abroad for a Canadian business.
The decision by Justice Russell further illustrates this, and overrules an IAD decision which had effectively allowed the credit based on an implied term that the PR would "return to Canada at the completion of his assignment" abroad.
This is the Citizenship and Immigration v. He 2018 FC 457 case
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/309704/index.do
The Minister appealed the IAD decision. And won.
The Federal Court concluded: "There is a 'possibility' that, at some time in the future, [the PR's] present employer may hire him to work in Canada, but this is not a contractual commitment. On the evidence, no implied term can be read into the contract of employment that the [PR] is on assignment . . . and will be returning to work [in Canada] for the company at some future date."
Thus, the employment did not meet the requirements to qualify for credit (even though the PR was employed by a Canadian business).
Federal Court noted, however, that the PR in this case (and his accompanying spouse, also a PR) could present H&C arguments upon review by a different IAD panel.
In any event, the case highlights the importance of the temporary nature of the job and to qualify for the credit it may even be necessary to show the Canadian business is contractually committed to providing the PR with employment in Canada at the conclusion of the "assignment" abroad.