I just replied to a post in the General forum, where the OP has been outside of Canada for over a decade. The initial responses were that an application for a PRTD would almost certainly be denied, but...if the OP is [now] the spouse or common-law partner of a Canadian citizen that is also living abroad...
. . . potential `loophole' allows a PR that has not met their R.O., who suddenly meets and marries a Canadian citizen abroad, then applies for a PRTD after 2 + years...would that likely be approved by IRCC?! I can't imagine so, but just wanted to solicit opinions.
Skip the opinions. The outcome of a PR TD application will depend on which approach is applied, recognizing that there are at least three different approaches in interpreting what the "
accompanying" credit requires.
There is no for-sure answer.
See IAD panel Sergong, in Haddadian v Canada, 2019 CanLII 130720, https://canlii.ca/t/j5hkm quoting and agreeing with IAD panel Paquette, in Diouf v. Canada, 2011 CanLII 59952, https://canlii.ca/t/fn81r . . .
". . . 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."
In
Diouf the PR "
was outside Canada, had been for some time, then while abroad met a Canadian citizen, eventually married that Canadian citizen and then sought to claim their days together living abroad post-marriage as days towards meeting her residency obligation" (quote from the Haddadian decision). Credit toward meeting the RO for time the couple lived together abroad was denied.
Diouf is is one of the more often cited IAD decisions, particularly by other IAD panels (like Sergong does in the Haddadian case) which apply a
who-accompanied-whom analysis in denying credit to PRs who otherwise were living together with a Canadian citizen spouse abroad.
If the
Diouf approach is also applied to the situation you describe, the outcome is predictable: no RO credit for time abroad together. Citizen spouse can nonetheless sponsor the former PR, but that is only if the couple are actually relocating to settle in Canada.
But whether that is the approach that will be applied is NOT predictable. Although the wind probably leans some toward no credit if the PR makes a PR TD application. Anyone's guess if the couple can travel to Canada via the U.S. and they arrive at a land-crossing PoE together.
If the PR is denied a PR TD, or is subject to an inadmissibility Report and issued a Removal Order at a PoE, very difficult to forecast how it will go in an appeal to the IAD, since, again, there are at least three distinctive approaches to these cases, in two of which credit is likely denied based on limiting the credit to PRs who accompany (go with) the citizen abroad, but potentially being allowed the credit if the other approach is applied which will give credit for days the PR and citizen spouse "
were spatially and temporally in the same location and ordinarily resident together."
All of which has been addressed at length and in-depth in this forum.
In particular, you should not be surprised that this, and other issues related to the credit allowed PRs accompanying-their-Canadian-citizen-spouse-abroad, have not only been discussed at length in this forum, but that there is a specific topic about situations in which a PR might be denied credit for days abroad during which the PR was with the PR's Canadian citizen spouse. Not hard to find either, since the title of that topic is "
Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE" and is here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/
Most of the cases and most of the related discussion are about whether "
who-accompanied-whom" matters, whether the credit will be denied if it is determined the citizen-spouse was accompanying the PR, rather than the PR accompanying the citizen-spouse.
There is NO one-for-sure rule, despite the language in the applicable regulation, section 61(4) IRPR, which says, in pertinent part, that "
a permanent resident is accompanying outside Canada a Canadian citizen . . . who is their spouse or common-law partner . . . on each day that the permanent resident is ordinarily residing with the Canadian citizen." See full regulation here:
https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-9.html#h-686425
. . . and despite what is prescribed in the operational manual ENF 23, which refers to the language in the Regulation, referring to days the PR "
ordinarily resides" with the Canadian citizen spouse (ENF 23 Section 6.1) , and further states:
"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. . . . as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant . . . "
The different approaches have been outlined and compared in numerous IAD decisions; among those more clearly stating the range is the IAD decision in the 2019 In'Airat case
http://canlii.ca/t/j4cls where the panel states that there are three main approaches adopted by IAD members:
(1) The permanent resident must accompany the Canadian citizen spouse or common law partner. There is not compliance if the Canadian citizen spouse or common-law partner is accompanying the permanent resident spouse or common-law partner. In other words, the reason for leaving Canada must be initiated by the Canadian citizen spouse or common law partner.
(2) It does not matter who accompanies whom; however, the permanent resident and his or her Canadian citizen spouse or common-law partner must leave Canada together or within a reasonable amount of time as accompanying requires the couple to go somewhere together and after reside together.[2] In other words, there must be a linkage to Canada as well as a temporal connection with respect to the departure from Canada by the appellant’s and his or her Canadian citizen spouse or common-law partner.
(3) All is required is that permanent resident ordinarily resided outside of Canada in the same location and the same time with their Canadian citizen spouse or common-law partner.
Applying the latter, for example, in the 2021 IAD decision for Nandita Roselent Chowdhury
https://canlii.ca/t/jlj1s it is stated that the PR should be allowed credit for days in which the PR and Canadian citizen spouse "
were spatially and temporally in the same location and ordinarily resident together." This is consistent with a line of cases following the reasoning for taking this approach articulated in the 2018 Mustafa decision
http://canlii.ca/t/hs76z .
The other end of the spectrum (the first approach above), which distinguishes PRs accompanying citizen-spouses, for which the credit is allowed, versus those cases in which the citizen-spouse is accompanying the PR and credit is not allowed, in effect limits the credit to those cases in which (as stated in the 2019 IAD Gehrke decision
http://canlii.ca/t/j4cms ) it
"is the Canadian citizen spouse who is the primary person or the cause for being outside Canada."
My description of the three rather commonly applied approaches:
-- credit depends on who-accompanied-whom
-- the Temporal-Nexus approach where it does not matter who-accompanied-whom but there must be a temporal connection in when BOTH moved from Canada to another country (that is, credit depends on couple moving from Canada together or at least around the same time)
-- credit is available for any days the PR was ordinarily living together with the Canadian citizen partner abroad (does not matter who-accompanied-whom)
Case reading list; the following IAD decisions fairly well illustrate these approaches, the reasoning for each, and their application in some particular circumstances:
- Diouf v. Canada, 2011 CanLII 59952, https://canlii.ca/t/fn81r
- Mustafa v Canada, 2018 CanLII 47219 see http://canlii.ca/t/hs76z
- Cherrak v Canada, 2019 CanLII 128440 https://canlii.ca/t/j4wdl
- Gehrke v Canada, 2019 CanLII 124068, http://canlii.ca/t/j4cms case
- In'Airat v Canada, 2019 CanLII 124093, http://canlii.ca/t/j4cls case
- Haddadian v Canada, 2019 CanLII 130720, https://canlii.ca/t/j5hkm
Probably fair to say that Diouf and Mustafa represent and illustrate the opposite ends of the spectrum, and these are both oft cited IAD decisions.
