My situation is similar to Waiting_game. Right now, I have a valid PR card but we are moving out of Canada to live in my home country. I am hoping I can apply for a travel document when I have to come back in the future. I understand that I can come back as PR with a travel document. This is from January 2015, maybe there is a new rule.
7.5 Accompanying a Canadian citizen outside Canada
R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.
In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.
https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf23-eng.pdf
CAUTION: NOTWITHSTANDING THE INFORMATION IN THE OPERATIONAL MANUAL ENF 23, THERE HAVE BEEN NUMEROUS CASES IN WHICH WHO-ACCOMPANIED-WHOM HAS BEEN QUESTIONED AND RESULTED IN DENYING THE CREDIT WHEN IT IS DETERMINED THE CITIZEN WAS ACCOMPANYING THE PR RATHER THAN THE PR ACCOMPANYING THE CITIZEN.
This is NOT a new rule but it is an approach which has been more frequently applied in recent years. This is discussed in-depth in a topic specifically devoted to identifying who might be at risk for a
who-accompanied-whom analysis when relying on credit for time abroad "accompanying" a Canadian citizen spouse. See:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
A sample:
CAUTION: Who-accompanied-whom can make a difference when a PR claims credit toward the PR Residency Obligation based on time abroad accompanying the PR's Canadian citizen spouse.
There are now reasons to emphasize this caution more than it has been in the past.
CAVEAT: While NOT certain, my strong sense is that the general approach to NOT consider who-accompanied-whom STILL applies in MOST cases, with "NOTABLE EXCEPTIONS."
Many official accounts of actual cases are cited and linked in that topic.
The scenario described by the OP here tends to fit the profile of those cases in which IRCC might indeed consider who-accompanied-whom; and where the PR was not settled and living in Canada, and the citizen clearly moved abroad to be with the PR, there is a significant risk the accompanying-a-Canadian-citizen-spouse credit will NOT be allowed.
SOME ACTUAL CASES:
Perhaps the most salient example of an actual case in which the
who-accompanied-whom question resulted in being denied credit is the IAD decision in Diouf, 2011 CanLII 59952 see
http://canlii.ca/t/fn81r
Diouf is cited in over a dozen other cases. Some of those disagree with the Diouf decision but more of them explicitly consider
who-accompanied-whom in deciding whether the
accompanying-a-Canadian-citizen-spouse credit is allowed.
For clarity, the facts in the Diouf case clearly show that in addition to some time actually spent in Canada, the PR in Diouf was living abroad with her Canadian citizen spouse for
two and a half years immediately previous to an application for a PR Travel Document. The IAD stated:
[16] From the viewpoint that permanent residents have to meet certain obligations, including being present in Canada for at least 730 days in a five-year period, surely the intention of Parliament was not to allow people who have been granted permanent residence to leave Canada and settle abroad and to allow those people who marry or are in a common-law relationship with a Canadian citizen to maintain or regain a status that would have otherwise been lost following an examination.
[17] Given the evidence on the record, the purpose of the Act and the meaning of the term “accompany,” the panel is not of the opinion that the appellant was outside Canada “accompanying” a Canadian citizen who is her spouse, as set out in subparagraph 28(2)(a)(ii) of the Act. The number of days that the appellant spent outside Canada while married to a Canadian citizen cannot be calculated as days she was present in Canada. The appellant did not demonstrate that she was present in Canada for at least 730 days in the five-year period, more specifically, from September 15, 2003, to September 15, 2008.
For emphasis, note the IAD stated:
The number of days that the appellant spent outside Canada while married to a Canadian citizen cannot be calculated as days she was present in Canada.
Similarly in another decision which cited the Diouf decision, Khan, 2015 CanLII 99397 (CA IRB),
http://canlii.ca/t/grz8t
In this case the IAD stated:
Upon careful consideration of all the evidence, as well as the intended interpretation of the word “accompany” within the context of the legislation and I find that at no time did the Appellant “accompany” his spouse. It is his spouse who went to Bangladesh to “accompany” the Appellant. There is no temporal nexus between the two events that could be construed as the Appellant relocating to Bangladesh in order to be with his Canadian citizen spouse . . .
Other decisions citing Diouf and taking into consideration who-accompanied-whom include:
Khaira v Canada (Citizenship and Immigration), 2014 CanLII 95529 (CA IRB),
http://canlii.ca/t/gksqq
Which cited Diouf and stated: "
As stated by this panel in its decision in Chen, [6] the term “accompanying” in this context requires the subject, the appellant, to move to where the object, his spouse, has gone."
Dadash-zadeh v Canada (Citizenship and Immigration), 2018 CanLII 46499 (CA IRB),
http://canlii.ca/t/hsldq
Which cited Diouf and stated: "
I share the prevailing approach of the IAD that the test in subparagraph 28(2)(a)(ii) of the Act cannot be met merely by counting the number of days a permanent resident spends outside Canada in the company of a Canadian citizen who is their spouse or common-law partner without regard to who is accompanying whom."
Also see:
Han v Canada (Citizenship and Immigration), 2017 CanLII 14435 (CA IRB),
http://canlii.ca/t/h2n4d
Caesar v Canada (Citizenship and Immigration), 2014 CanLII 99165 (CA IRB),
http://canlii.ca/t/gnf7w
Rochecouste v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 60484 (CA IRB),
http://canlii.ca/t/hst39
Kreidy v Canada (Citizenship and Immigration), 2017 CanLII 87454 (CA IRB),
http://canlii.ca/t/hphj6
Dezfuli v Canada (Citizenship and Immigration), 2018 CanLII 89023 (CA IRB),
http://canlii.ca/t/hv85q
Ibrahim v Canada (Citizenship and Immigration), 2018 CanLII 60499 (CA IRB),
http://canlii.ca/t/hst3d
Contrary decisions (which reject consideration of
who-accompanied-whom) include:
The Mustafa decision at
http://canlii.ca/t/hs76z . .
Liong v Canada (Citizenship and Immigration), 2013 CanLII 98789 (CA IRB),
http://canlii.ca/t/gj8wt
Auladin v Canada, 2015 CanLII 93049
http://canlii.ca/t/gndk9
(note that this decision relies more on a factual temporal nexus as, in effect, sidelining or overriding the who-accompanied-whom question)
SUMMARY: While I have NOT done an extensive accounting of recent decisions, it appears that the
who-accompanied-whom question has loomed large in 2017 and 2018 decisions, suggesting this is either the trend or perhaps already the prevailing approach . . . again, notwithstanding the policy described in ENF 23.
THAT SAID, as long as the couple were living together in Canada
BEFORE the move abroad, AND they are ordinarily residing together, it otherwise appears that the credit will be allowed without regard to
who-accompanied-whom. Whether this will continue to be how these cases are handled is difficult to predict.
The main factor appears to be whether the PR was settled and living in Canada before the move abroad, and if so, as long as the citizen spouse moves abroad around the same time, they get the credit. If in contrast the PR is settled abroad for a considerable period of time before the citizen spouse joins the PR abroad, there is a risk the credit will be DENIED . . . and if the PR has never really been settled in Canada, that risk appears to be rather high.
