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Not Meeting Residency Obligation Due to Out of Hand Issues

wajahatid

Full Member
Jun 6, 2017
25
5
Hi,



I did my soft landing in December 2018 and I had originally planned to migrate to canada at the end of 2019. I could not as COVID struck and following the government's announcement I avoided any travel that was not necessary. I stayed in my country for 2 years.



In the 3rd year, this is 2022, my father got terminally ill and he passed away this June. My mother is now under depression, a lot better than before. Hopefully, she will recover fully in a month.



At the moment I'm busy in sorting out inheritance legalities. This is the only reason I did not immigrate till now to Canada. This should be sorted out by next year (2023) January, after which I will immigrate.



Any guidance would be appreciated.



My PR expires on January 2024.
 
 

scylla

VIP Member
Jun 8, 2010
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Hi,



I did my soft landing in December 2018 and I had originally planned to migrate to canada at the end of 2019. I could not as COVID struck and following the government's announcement I avoided any travel that was not necessary. I stayed in my country for 2 years.



In the 3rd year, this is 2022, my father got terminally ill and he passed away this June. My mother is now under depression, a lot better than before. Hopefully, she will recover fully in a month.



At the moment I'm busy in sorting out inheritance legalities. This is the only reason I did not immigrate till now to Canada. This should be sorted out by next year (2023) January, after which I will immigrate.



Any guidance would be appreciated.



My PR expires on January 2024.
I think the best advice any of us can give you is to return to Canada as soon as you can. If you return January 2023 then the chances of being reported at the border for failing to meet the residency requirement "should" be low. Keep in mind that once you return, you will want to remain in Canada for 2 years straight without leaving to meet the residency obligation and be in a position to renew your PR card.

Generally speaking, COVID isn't being accepted as an excuse for failing to meet the residency obligation. Your father's illness can be used but that only happened this year.

So the best advice is to return to Canada as soon as you can and then live here without interruption for 2 years.
 

wajahatid

Full Member
Jun 6, 2017
25
5
I think the best advice any of us can give you is to return to Canada as soon as you can. If you return January 2023 then the chances of being reported at the border for failing to meet the residency requirement "should" be low. Keep in mind that once you return, you will want to remain in Canada for 2 years straight without leaving to meet the residency obligation and be in a position to renew your PR card.

Generally speaking, COVID isn't being accepted as an excuse for failing to meet the residency obligation. Your father's illness can be used but that only happened this year.

So the best advice is to return to Canada as soon as you can and then live here without interruption for 2 years.
Well speaking technically, my father's kidneys were failing from past 3 years. We had no idea when they would fail as they were failing slowly then the process sped up. his kidney failed in October 2021. We were in the process of getting his transplant arranged but he got critically ill by catching a liver disease through dialysis that went undetected.
 

armoured

VIP Member
Feb 1, 2015
11,038
5,603
Generally speaking, COVID isn't being accepted as an excuse for failing to meet the residency obligation.
Source?

While I would certainly agree that no-one should anticipate that covid will 'forgive all sins' (be accepted as a blanket excuse for all violations of residency obligations), I do not recall that many where it was not accepted into consideration as part of reasons. And none that I recall outright being rejected.

Now that may be because not many reports or none so far having been published after appeals (too early).

But I remain highly, highly skeptical of blanket statements that 'generally ... covid isn't being accepted as' [reasons or circumstances under the applicable meaning for H&C consideration in non-compliance cases.]

[editadd]
As has been noted here and many times: during MOST of the covid period (and indeed not lifted until about March of this year?), government policies and LARGE WARNINGS were all over the place advising all to avoid unnecessary travel (or non-essential) travel.

You can argue what essential or necessary travel meant in context of these government warnings, as there were exceptions, but that is a fine legal distinction that those government warnings did not always make - in other words it required subjective judgment on the part of the traveller, a context in which "I read the government warnings and was very concerned about the risks and decided not to take those risks" is an entirely reasonable conclusion for an individual to make. (And in my opinion, there is a very good chance that a tribunal or court will accept that reasoning too, although again - within limits of reason as applied to specific circumstances i.e. saying this does not mean arguing it will 'forgive all sins.')

That said: happy to hear evidence related to concrete cases of refusals or similar.
 
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steaky

VIP Member
Nov 11, 2008
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Do you mean that your PR card expires January 2024? Do you have a SIN number? What province do you expect you will settle in?
Does it matters what province? There are other provinces he or she can decide.
 

wajahatid

Full Member
Jun 6, 2017
25
5
Do you mean that your PR card expires January 2024? Do you have a SIN number? What province do you expect you will settle in?
Yes my PR expires in January 2014. I have a SIN Number, Bank Account and Driving License (G1) and i plan on settling in Toronto.
 
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armoured

VIP Member
Feb 1, 2015
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Does it matters what province? There are other provinces he or she can decide.
If the PR card is valid (if has a PR card), and arrives with sufficient time to get formalities done, it probably does not. (I should perhaps have made clear that question depends upon PR card.)
 

armoured

VIP Member
Feb 1, 2015
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Yes my PR expires in January 2014. I have a SIN Number, Bank Account and Driving License (G1) and i plan on settling in Toronto.
If you arrive when PR card still has several months, you should not have any problems. You may wish to check on arrival that SIN number has not been placed in 'dormant' status. You will need to apply for health care.
 
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wajahatid

Full Member
Jun 6, 2017
25
5
If you arrive when PR card still has several months, you should not have any problems. You may wish to check on arrival that SIN number has not been placed in 'dormant' status. You will need to apply for health care.
How can one check if the SIN is in dormant state or not and can i reactivate it before travelling to Canada?
 

armoured

VIP Member
Feb 1, 2015
11,038
5,603
How can one check if the SIN is in dormant state or not and can i reactivate it before travelling to Canada?
I believe you'd have to call service canada or CRA or the dept of employment and social development. Don't bother until you return, waste of time, and not urgent anyway.

Honestly it is probably unlikely that it has been, they seem to only put in dormancy after several (read many) years of no activity. It is at any rate still a valid number and can be used. The stated reasons for this dormancy thing is to block access to any acitvity or funds that could be associated like pensions or EI - it is not intended to keep anyone from working. It comes up for some that return to Canada without valid PR cards (and out of compliance so not able to get a new PR card).
 

canuck78

VIP Member
Jun 18, 2017
44,648
10,564
Hi,



I did my soft landing in December 2018 and I had originally planned to migrate to canada at the end of 2019. I could not as COVID struck and following the government's announcement I avoided any travel that was not necessary. I stayed in my country for 2 years.



In the 3rd year, this is 2022, my father got terminally ill and he passed away this June. My mother is now under depression, a lot better than before. Hopefully, she will recover fully in a month.



At the moment I'm busy in sorting out inheritance legalities. This is the only reason I did not immigrate till now to Canada. This should be sorted out by next year (2023) January, after which I will immigrate.



Any guidance would be appreciated.



My PR expires on January 2024.
PR doesn’t expire PR cards. You must meet the 730 days within 5 years of your landing date so the expiry date on your PR card isn’t related to meeting your RO. If you landed in December 2018 you must meet the 730 days between December 2018 and December 2023. As already mentioned when you return to Canada and if you are not reported you should remain in Canada for 2 straight years. You can live in Canada without a valid health card. It will be tough to say that kidney failure required you to remain in your home country when it was being treated with dialysis. When it became a terminal issue then that would be a reason to remain in your home country.
 
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wajahatid

Full Member
Jun 6, 2017
25
5
PR doesn’t expire PR cards. You must meet the 730 days within 5 years of your landing date so the expiry date on your PR card isn’t related to meeting your RO. If you landed in December 2018 you must meet the 730 days between December 2018 and December 2023. As already mentioned when you return to Canada and if you are not reported you should remain in Canada for 2 straight years. You can live in Canada without a valid health card. It will be tough to say that kidney failure required you to remain in your home country when it was being treated with dialysis. When it became a terminal issue then that would be a reason to remain in your home country.
We were planning to do his transplant. In the initial screening done in September 2021, he had build up of fluid around his heart that showed the kidneys were working poorly. Doctors had advised him to wait and shift on dialysis so that the fluid build up is removed. We did another heart test in Feb or March 2022 were he was declared fit but by then the liver disease had set in and he was in and out of hospital multiple times in the following months and then he passed away in June 2022.

He underwent his first kidney transplant back in 2012 where he narrowly survived. This time he wanted to ensure that I was there, being his only son and spend as much time with me as possible as the risks were even higher this time given his age.
 
 

armoured

VIP Member
Feb 1, 2015
11,038
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We were planning to do his transplant. In the initial screening done in September 2021, he had build up of fluid around his heart that showed the kidneys were working poorly. Doctors had advised him to wait and shift on dialysis so that the fluid build up is removed. We did another heart test in Feb or March 2022 were he was declared fit but by then the liver disease had set in and he was in and out of hospital multiple times in the following months and then he passed away in June 2022.

He underwent his first kidney transplant back in 2012 where he narrowly survived. This time he wanted to ensure that I was there, being his only son and spend as much time with me as possible as the risks were even higher this time given his age.
With all due respect to comments from others about whether or not dialysis 'required you to remain in your home country' (IMO you are justified to say what business is it of theirs, and when were they appointed Border Officer-Inquisitors), you can have that discussion directly with CBSA. Just one opinion, your simple statement that your parent was terminally ill and did indeed pass away is a straightforward explanation - and you can see for yourself whether further detail is required.

Whether that will be sufficient - along with covid - to explain why you were out of compliance with your residency obligation, no-one knows. Anecdotally from reports here, there are cases with worse non-compliance that have not ended in issues about the non-compliance. But all cases have specific circumstances.
 
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dpenabill

VIP Member
Apr 2, 2010
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I did my soft landing in December 2018 and I had originally planned to migrate to canada at the end of 2019. I could not as COVID struck and . . .
With some exception (will address below), what @scylla initially responded is the gist of it: the sooner you get here, the better your chances of keeping PR status.

That's really the key. You have breached the Residency Obligation. You meet the statutory definition of "inadmissible." Whether or not that results in a decision to terminate your PR status when you return to Canada (typically referred to as "being Reported," even though there is more to it than that) will depend mostly on how big the breach is. So the sooner you get here, the better chance you have of keeping PR status. Yes, the nature of the reasons why you did not come to Canada sooner can help, and can make the difference, recognizing that some reasons weigh more than others. But arriving here by January 2023 gives you way, way better odds than if you arrive here just a week or even a month before the fifth year anniversary of the date you landed, let alone if you do not arrive here until just a week or three before your PR card expires. Arriving here by December 2022, even better odds. Next week? Even better.

If you are planning on getting here relatively soon, at least early in the coming year, odds should be favourable, favourable enough to go-for-it. No need to read any more of my comments below.

If in contrast, getting here sooner is not likely . . . here's the longer explanation:

First, it warrants repeating for emphasis, the sooner you get here, the better your chances of keeping PR status.

In particular, it appears that new PRs (within first five years since date of landing) are still benefitting from significant leniency in the enforcement of the PR Residency Obligation. It also warrants cautioning, however, that the scope of this can change at any time, and actually it could have changed before now, noting there can be, and usually is, a significant lag in time before such changes are known in a forum like this. In fact, it is difficult for us to reliably glean just how strict PoE RO enforcement is at any given moment in time, since we rely mostly on a small number of anecdotal reports in conjunction with following how appeals are decided, the latter lagging long after the border transactions at issue.

Over the course of the previous year, lots of signs signaling lots of leniency in enforcing the RO at the PoE. Going forward, uncertain at best.

Nonetheless, even though being in breach of the Residency Obligation (which it appears you have been for 8 or 9 months now, which you have been as of the day you were abroad more than 1095 days since the date of your landing) puts a PR, such as you, AT RISK for inadmissibility proceedings and loss of PR status upon your arrival at a Port-of-Entry, despite that RISK, for now it still appears that many PRs in somewhat similar situations, particularly those who have relatively reasonable explanations for why they were delayed coming to Canada, are waived into Canada without an inadmissibility Report being prepared against them.

Such leniency is far from guaranteed, far from a free pass. Again, how much in breach of the RO the PR is, as of the date the PR arrives at the PoE, is typically the biggest factor; and yes, H&C considerations explaining reasons for not returning to Canada sooner are a big factor as well, but forecasting the outcome of a particular H&C case (with some exceptions for the more obvious situations, both ends of the spectrum) is well beyond the scope of what anyone here can reliably predict.

I totally agree with what I think @armoured suggests, that for purposes of discussion and what is hopefully helpful commentary in a forum like this, just a general reference to your H&C reasons is enough detail. No one here can be relied on to assess the weight of the H&C case in detail . . . and certainly NOT qualified to pass judgment on it.

Moreover, there continues to be some persistent misunderstanding here about the way in which a PR's *reasons* for not returning to Canada sooner are assessed. Just characterizing a PR's reasons as "excuses" tends to distort how H&C factors are considered, and to be clear, before an inadmissibility Report for a breach of the RO can be upheld and finalized by the issuance of a Removal Officer, ANY and ALL reasons given by a PR explaining why the PR did not return to Canada sooner MUST BE CONSIDERED. And will be (barring those damn stuff happens exceptions).

So I am not sure what is meant by XXX (Covid or otherwise) "isn't being accepted as an excuse for failing to meet the residency obligation," but unless an officer has cause to believe the PR's explanation is not credible, it MUST be accepted (Covid reason included) and taken into consideration, and weighed along with all the other relevant factors . . . among which, sorry to beat this drum so incessantly, the NUMBERS (meaning how big the breach is) loom large and typically largest.

How much weight this or that reason will have, even whether it weighs in favour of allowing relief or toward denying relief, varies greatly, depending not just on the particulars of that reason, but how that reason fits into the whole scheme of things, taken in context. Even factors like staying abroad longer because of a personal employment opportunity, which typically is said to carry very little if any positive weight, in many circumstances (especially for the PR still in the first five years since landing) can be a positive factor helping to tip the scales toward allowing a PR in RO breach an opportunity to keep PR status.

The impact of Covid has been so universal, it is near certain it is a significant factor in what influences border officials screening soft-landed PRs who are late-arriving (your situation, other than the particular family health related family matters, is quite common). Contrary to assertions that Covid is not "accepted," it is at least highly likely, if not nearly certain, it has been a huge factor underlying how leniently border officials have been and appear to still be in enforcing the PR RO. But this leads back to noting the nature and scope of leniency at the PoE not only can change, but the influence of Covid in justifying relief from a breach of the RO is undoubtedly going to decline and may already be declining.

Again, NO free pass. No guarantees. The whole package matters. In many respects it comes down to the deciding official's assessment of the PR and whether in consideration of all the relevant factors whether the PR deserves an opportunity to keep PR status. That's a hard one to detail or quantify, lots of subjective discretion woven into the fabric of who *deserves* the opportunity to keep PR status.

Which brings this back to the other, family-related factors. Which are obviously difficult and for which I offer my condolences. Which likewise MUST be considered and will almost certainly be considered and given significant positive weight.

Still, to be sure, no free pass.

To be clear, in particular, it should be remembered that the PR RO is specifically designed to accommodate such difficult and compelling reasons for spending extended periods of time outside Canada. The RO is designed to give PRs, including PRs in situations similar to yours, the flexibility to spend lengthy periods of time abroad including for family reasons. UP to THREE YEARS in any five years, in fact, NO questions asked, NO need to explain, entirely up to the PR to decide their own priorities without having to justify why they were abroad, AS LONG AS the PR spends at least 730 days in Canada during the first five years, and within any five year period following that.

That is, the RO is specifically structured to accommodate extended absences from Canada including those "due to out of hand issues," or just because the PR chooses other priorities, AS LONG AS the PR spends at least 730 days in Canada during the first five years, and within any five year period following that.

So this loops back, again, to the scope of leniency at the PoE seen in regards to PRs in breach. Looping back to the sooner you get here the better your odds. And then stumbling some running into the H&C case.

H&C cases are complicated. H&C cases are not readily predictable. Compound H&C cases are especially complex and difficult to predict. First there was Covid, then a parent's serious illness, then a parent's death, then the hardship of the other parent's circumstances . . . can the PR even be expected to come to Canada to settle permanently?

No one here can possibly offer a reliable assessment of such a complex H&C case, except to recognize that in conjunction with a smaller breach, the better the odds that border officials will be persuaded to give the returning PR the opportunity to keep PR status.