Not Meeting RO for PR Renewal
- Thread starter cadmm05
- Start date
IRCC will refuse the application which will result in a loss of PR status unless you request consideration under H&C and have strong reasons/evidence.
See above but to emphasize an important point: you are a PR, only your PR card expires or has expired.
You can remain in Canada as things are and simply wait until you are in compliance with the residency obligation. You have the legal right to work, and reside here; you are in no way 'illegal.' You may face difficulty with some things like provincial health insurance, however, depending on province and some other circumstances.
And one final caveat to @scylla's post above: IRCC has to make an active decision to refuse your application and revoke your PR status (which revocation is subject to appeal). It is not automatic.
In some cases (eg where the applicant is close to meeting the RO, or where the H&C considerations are there but perhaps weak, or to be honest who knows exactly why?), IRCC may do some combination of slow-walking the processing and/or advise the applicant they can only pikc up the card in Canada. In the latter case (requesting pickup at an office in Canada), that seems to mostly/partly serve as a way to ensure the applicant is factually residing in Canada. (Slow processing can result in applicant being in compliance - but a warning that they can and sometimes do take the formal step to stop the clock for purposes of RO compliance calculation.)
To be clear: if they ask you to pick up in Canada and you're not in the country, you may have to apply for a PRTD to be able to return (high chance of refusal) or get reported at a border (possibly somewhat lower chance of being reported). If your'e in Canada - a good chance they ask a few questions and hand you your PR card.
I think (in my opinion) there are two or three main conclusions one can draw from this when it comes to evaluating risk of losing or having an issue with PR status:
1) The lowest possible risk (arguably close to zero) is to remain in Canada and not apply for a new PR card until one is in compliance with the PR card.
2) As stated above, you can have your application refused if you apply before you meet the RO - but remaining in Canada is lower risk than leaving (possibly much lower, depending on circumstances), both for that application and for potential appeal purposes.
My third is more of a generalization about these risks:
3) The less one is out of compliance and the better one's H&C reasons and the more obviously one is residing in Canada, the risk also declines. So waiting to apply - to be less out of compliance (or better, in compliance!) and to be able to show one is factually residing in Canada - reduces risks too.
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@scylla and @armoured . . . a point of procedure, if I may . . .
I realize that many participants in this forum (including you), in regards to those who are in breach of the RO, typically refer to the possibility that a PR card application might be "refused" or "denied," resulting in loss of PR status. That more or less describes the net effect of what can happen in general, casual terms. That is, the application for a PR card can trigger decision-making that leads to the loss of PR status.
To be more precise, however, IRCC does NOT "refuse" PR card applications because the PR has not complied with the PR Residency Obligation (with isolated exceptions).
In fact, if in processing the PR card application IRCC makes the determination the PR has failed to comply with the RO, and is not qualified to get H&C relief, the PR is still entitled to be issued a one-year PR card, which can be renewed so long as any Removal Order has not become enforceable (which has practical effect ONLY if the PR appeals the 44(1) Report and Removal Order, since absent an appeal a Removal Order will become enforceable in 30 days, and PR status is thereby terminated and the PR must leave Canada, enforceable by deportation proceedings).
The process generally follows the same procedure as employed in Port-of-Entry cases, except it is done by IRCC officers rather than CBSA and there is typically a significant gap in time between when the 44(1) Report is prepared and the Minister's Delegate review (which will usually include at least an interview if not a more formal hearing). In particular, if in the course of processing an application for a PR card, an IRCC officer determines the PR has not complied with the RO and there are not sufficient H&C reasons to allow them to keep PR status, rather than make a decision to deny or refuse the application, the procedure is to prepare a 44(1) Report which is then followed by an interview or hearing with an officer acting as the Minister's Delegate who decides whether to issue a Removal Order (or set the Report aside and allow the PR to keep their status).
Recent discussion with @MahSh is an example (albeit no one-year PR cards issued while the case was still pending, which could be because they left Canada, but given the lengthy timeline involved in that case, also seems likely that the case got lost in bureaucracy cracks along the way).
Does This Distinction Matter?
Actually it does. Or at least in some situations, for some PRs, it can matter. When (the date) the 44(1) Report is prepared can make a big difference, since once the Report is prepared the PR no longer gets any RO credit for days in Canada after that date.
In particular, for a PR card application which on its face shows the PR to be badly in breach of the RO, and it presents no H&C reasons for being allowed relief, it appears that sometimes IRCC has more or less immediately prepared a 44(1) Report when it begins processing the application. I have seen at least a few cases in the published IAD decisions where the date of the 44(1) Report is the date the application was made. The PR is given NO credit for days in Canada after that. (That said, additional time in Canada can influence the H&C assessment; still does not count toward reducing the extent of the breach, but can be considered as a positive factor, at least in terms of avoiding the negative influence of additional time outside Canada.)
In contrast, if there is any semblance of a H&C case presented in the application, it appears that IRCC will conduct inquiries (or more formal investigations) and may even give the PR an opportunity to submit more information or documentation, or even schedule an interview or hearing, BEFORE preparing the 44(1) Report, which can mean the PR will be entitled to additional RO credit for days in Canada for however long it takes IRCC to get to the step where, in effect, it denies H&C relief and prepares the inadmissibility Report. This can add up to many months RO credit and make a big difference when in turn the Minister's Delegate is reviewing the Report and deciding whether to issue a Removal Order.
Moreover, for those PRs staying in Canada after applying when short, it can make a difference in whether an inadmissibility Report will be prepared. As long as a Report was not prepared as of the date of the application, the PR continues to get RO credit for days in Canada, and thus if the PR has enough additional RO credit to meet the RO by the time the processing officer is deciding whether or not to prepare a 44(1) Report, the RO breach is cured and there are no grounds for preparing the Report. Even if the additional days in Canada are not enough to cure the RO breach, they can can make a significant difference in the extent-of-breach factor, which in most H&C cases (not all) is the biggest, most influential factor.
Bringing this to the OP's situation, and making a PR card application 18 months short of meeting the RO. Applying for a new PR card with just 182 or so days credit toward meeting the RO, as @cadmm05 is inquiring about, seems likely to be in the range of cases in which IRCC might immediately (upon opening the application) prepare a 44(1) Report unless @cadmm05's application includes enough of a H&C case to warrant further inquiry and consideration.
That is, if you can, DO NOT apply for a new PR card now, NOT until you meet the Residency Obligation, or you are at least a lot closer to meeting the RO.
A PR card application now will seriously risk a decision terminating your PR status. You have been outside Canada 90% of the time. That is a long, long way short of demonstrating you are moving to Canada to settle PERMANENTLY (the reason IRCC granted you PR status).
Thus, even though your application will not be refused, as such (as I describe above), @scylla aptly described the gist of the situation, as further clarified by @armoured, both more or less describing the net effect of what can happen (perhaps what is likely to happen) in general, casual terms:
Additional Observations:
Since you are IN Canada, I agree with, and it would prudent of you to seriously consider, the second paragraph of what @armoured posted:
You can make the PR card application asking for H&C relief. But that's is risky and perhaps a long shot (absent some strong H&C reasons explaining why it took so long to come and settle here). And you do not need to take that risk if you just STAY in Canada long enough to be in compliance with the RO.
Before making a PR card application asking for H&C relief (asking IRCC to allow you to keep PR status for H&C reasons despite the breach of the RO), if you can afford a lawyer, see one and pay to have the lawyer review your situation in detail, or even handle the case and make the application on your behalf.
If you were thinking about applying for a new PR card so you could travel outside Canada (particularly if for any significant length of time) and keep PR status, that is largely a dead end, a no go deal. There are exceptions, but it is not worth getting tangled in that here; rather, that would be something to get a lawyer's advice about.
I realize that many participants in this forum (including you), in regards to those who are in breach of the RO, typically refer to the possibility that a PR card application might be "refused" or "denied," resulting in loss of PR status. That more or less describes the net effect of what can happen in general, casual terms. That is, the application for a PR card can trigger decision-making that leads to the loss of PR status.
To be more precise, however, IRCC does NOT "refuse" PR card applications because the PR has not complied with the PR Residency Obligation (with isolated exceptions).
In fact, if in processing the PR card application IRCC makes the determination the PR has failed to comply with the RO, and is not qualified to get H&C relief, the PR is still entitled to be issued a one-year PR card, which can be renewed so long as any Removal Order has not become enforceable (which has practical effect ONLY if the PR appeals the 44(1) Report and Removal Order, since absent an appeal a Removal Order will become enforceable in 30 days, and PR status is thereby terminated and the PR must leave Canada, enforceable by deportation proceedings).
The process generally follows the same procedure as employed in Port-of-Entry cases, except it is done by IRCC officers rather than CBSA and there is typically a significant gap in time between when the 44(1) Report is prepared and the Minister's Delegate review (which will usually include at least an interview if not a more formal hearing). In particular, if in the course of processing an application for a PR card, an IRCC officer determines the PR has not complied with the RO and there are not sufficient H&C reasons to allow them to keep PR status, rather than make a decision to deny or refuse the application, the procedure is to prepare a 44(1) Report which is then followed by an interview or hearing with an officer acting as the Minister's Delegate who decides whether to issue a Removal Order (or set the Report aside and allow the PR to keep their status).
Note: There can also be some delay or gap in time, before the MD's review, following preparation of an inadmissibility Report at a PoE, if for some reason another officer acting as the MD is not available to review the Report; while this happens, it is not the usual procedure, and even when it does happen the MD's review is typically within a few weeks if not days, typically attendant a telephone interview. Lengthy delays between the date the Report is prepared at the PoE and the MD's review happen but are unusual, appearing to be very unusual.
Recent discussion with @MahSh is an example (albeit no one-year PR cards issued while the case was still pending, which could be because they left Canada, but given the lengthy timeline involved in that case, also seems likely that the case got lost in bureaucracy cracks along the way).
Does This Distinction Matter?
Actually it does. Or at least in some situations, for some PRs, it can matter. When (the date) the 44(1) Report is prepared can make a big difference, since once the Report is prepared the PR no longer gets any RO credit for days in Canada after that date.
In particular, for a PR card application which on its face shows the PR to be badly in breach of the RO, and it presents no H&C reasons for being allowed relief, it appears that sometimes IRCC has more or less immediately prepared a 44(1) Report when it begins processing the application. I have seen at least a few cases in the published IAD decisions where the date of the 44(1) Report is the date the application was made. The PR is given NO credit for days in Canada after that. (That said, additional time in Canada can influence the H&C assessment; still does not count toward reducing the extent of the breach, but can be considered as a positive factor, at least in terms of avoiding the negative influence of additional time outside Canada.)
In contrast, if there is any semblance of a H&C case presented in the application, it appears that IRCC will conduct inquiries (or more formal investigations) and may even give the PR an opportunity to submit more information or documentation, or even schedule an interview or hearing, BEFORE preparing the 44(1) Report, which can mean the PR will be entitled to additional RO credit for days in Canada for however long it takes IRCC to get to the step where, in effect, it denies H&C relief and prepares the inadmissibility Report. This can add up to many months RO credit and make a big difference when in turn the Minister's Delegate is reviewing the Report and deciding whether to issue a Removal Order.
Moreover, for those PRs staying in Canada after applying when short, it can make a difference in whether an inadmissibility Report will be prepared. As long as a Report was not prepared as of the date of the application, the PR continues to get RO credit for days in Canada, and thus if the PR has enough additional RO credit to meet the RO by the time the processing officer is deciding whether or not to prepare a 44(1) Report, the RO breach is cured and there are no grounds for preparing the Report. Even if the additional days in Canada are not enough to cure the RO breach, they can can make a significant difference in the extent-of-breach factor, which in most H&C cases (not all) is the biggest, most influential factor.
Bringing this to the OP's situation, and making a PR card application 18 months short of meeting the RO. Applying for a new PR card with just 182 or so days credit toward meeting the RO, as @cadmm05 is inquiring about, seems likely to be in the range of cases in which IRCC might immediately (upon opening the application) prepare a 44(1) Report unless @cadmm05's application includes enough of a H&C case to warrant further inquiry and consideration.
Main thing: If you can STAY and get by without a new PR card, your BEST option is to STAY, to NOT apply for a new PR card for now -- as @armoured observed, your PR status continues. Your PR status does NOT depend on getting a new PR card.
That is, if you can, DO NOT apply for a new PR card now, NOT until you meet the Residency Obligation, or you are at least a lot closer to meeting the RO.
A PR card application now will seriously risk a decision terminating your PR status. You have been outside Canada 90% of the time. That is a long, long way short of demonstrating you are moving to Canada to settle PERMANENTLY (the reason IRCC granted you PR status).
Thus, even though your application will not be refused, as such (as I describe above), @scylla aptly described the gist of the situation, as further clarified by @armoured, both more or less describing the net effect of what can happen (perhaps what is likely to happen) in general, casual terms:
That said, I will offer further, more in-depth observations, some explanations . . .
Additional Observations:
Since you are IN Canada, I agree with, and it would prudent of you to seriously consider, the second paragraph of what @armoured posted:
That is, assuming there are NO inadmissibility proceedings against you so far . . . because you are currently IN Canada you can avoid either CBSA or IRCC initiating inadmissibility proceedings which could lead to the loss of your PR status by just staying in Canada and not applying to IRCC until you have stayed long enough to meet the RO. As @armoured observed, you are still a Permanent Resident even if you do not have a currently valid PR card.
You can make the PR card application asking for H&C relief. But that's is risky and perhaps a long shot (absent some strong H&C reasons explaining why it took so long to come and settle here). And you do not need to take that risk if you just STAY in Canada long enough to be in compliance with the RO.
Before making a PR card application asking for H&C relief (asking IRCC to allow you to keep PR status for H&C reasons despite the breach of the RO), if you can afford a lawyer, see one and pay to have the lawyer review your situation in detail, or even handle the case and make the application on your behalf.
If you were thinking about applying for a new PR card so you could travel outside Canada (particularly if for any significant length of time) and keep PR status, that is largely a dead end, a no go deal. There are exceptions, but it is not worth getting tangled in that here; rather, that would be something to get a lawyer's advice about.
Thank you. Circling back to my comments to draw the threads together a bit:
-Emphasize as I did before, and as you have here, that staying until in compliance (and clearly in compliance) as close to low risk as it gets.
-Very much NOT wanting to encourage anyone to apply before they are back in compliance, but still wanting to put this as clearly as possible: if one really must need apply before being back in compliance, being CLOSER to compliance is better than being very much out of compliance. (Underline and repeat: still not without risk). But given the combination of days possibly accruing, having more days in Canada - all things being equal - is better, more time being clearly resident in Canada (particularly if gainfully employed) with ties that can be demonstrated, etc - these things might swing the evaluation in the applicant's favour.
My point here is to encourage anyone in this situation to STAY in Canada and live one's life - to 'reside' in Canada as much as one can before applying. Ideally until in compliance. But that if one must apply before being in compliance, being closer is better, having more ties/evidence of residing here is better, etc. What weighting may be given to each of these (along with H&C reasons for having been away) may be unknown but they're not zero.
In really simple terms: if one has just made it across the border and not been reported, waiting to apply for PR card is better. Waiting more is better. Waiting until in compliance is best.
[As before, I'm referring to cases where there has not been a formal H&C adjudication eg a PRTD visa with the appropriate coding.]