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As a pr holder she had no clue she had to stay 2 years within a 5 year frame.
It sucks because she could have applied for citizenship when she was living here for 15 years, but here we are now.
Yeah, it is what it is and that's not good. The fact "
she had no clue she had to stay 2 years within a 5 year frame" almost certainly carries very, very little weight in her favour.
Sorry, very sorry, but . . . this is a situation in which your mother will likely be deported, sooner or later, unless the lawyers have a case to make otherwise . . . so you and your mother need to look to the lawyers for advice about how to proceed . . . be that to proceed with the effort to obtain judicial review or avoid deportation in pre-removal relief proceedings . . . or to best navigate relocating to the U.S. (or elsewhere if that is an option).
I understand the difficulty of the situation; and you, and your mother, have my sincere condolences. I believe things should be different, but that is my ideological side, which unfortunately is far too idealistic for this world (which is one of the reasons I steer wide of expressing my opinions here about what the law and rules should be . . . my opinions in that regard have zero relevance in how things actually work or will work in any foreseeable future).
As someone for whom 70 is in the rearview mirror, long past 70 now, and whose family is predominantly in my home country, a country in which there is legislation pending that might mean I could never again travel there (legislation that is getting very little publicity), let alone return to live there (and it is a country on a downward trajectory radically diminishing its suitability for me otherwise), and yeah that is the same country that could be your mother's only option, my understanding is rooted in personal experience.
So, I am sorry to say, your mother probably has no realistic options for living long-term in Canada absent qualifying for and obtaining resident status in Canada pursuant to programs for bringing parents to Canada (I have not kept up with how that works these days). Given the length of her absence from Canada, it appears that any chance of keeping PR status would be based on the hardship she faces if deported, and as much as the U.S. is a hostile country in my view, it is very much considered a safe destination for deportees in the view of the Canadian government.
I say that without knowing what the lawyer has in mind in regards to grounds for obtaining Judicial Review, let alone being granted relief. Perhaps there is a case to be made. You and your mother will need to rely on the lawyer, or other lawyers, to guide you in that regard. There are procedural ways to avoid or at least delay physical deportation, but these too depend mostly on the hardship deportation will cause, and again, for now the Canadian government, including its courts, are not likely to consider deportation to the U.S. as unduly harsh or a hardship rising to the level that would preclude deportation . . . again, your mother's lawyers may know reason otherwise.
When she applied for PR the residency of 2 out of 5 years would have been explained.
For someone who became a Permanent Resident of Canada in 1990 (actually anytime prior to 2003), at that time (and not until after the Immigration and Refugee Protection Act adopted in 2001 took effect, which I believe was January 1, 2003) they would not have been subject to, let alone advised, that there was a two years in five "
residency obligation."
Under the law applicable when the OP's mother became a PR (and until 2003), that is the Immigration Act of 1976, other than having been issued an enforceable deportation order based on criminal or security grounds (that is, was determined to be a member of an "
inadmissible class" as referenced in Section 27 of the 1976 Act), a PR would lose their status if they left or remained "
outside Canada with the intention of abandoning Canada as [their] place of permanent residence," pursuant to Section 24.(1)(a) of the 1976 Act.
That was a subjective standard and in many respects more flexible. Indeed, under Section 25 of the 1976 Act, a PR intending to leave Canada "
for any period of time" could make an application for a "
returning resident permit," possession of which constituted proof they did not leave or remain outside Canada with the intention of abandoning Canada as their place of permanent residence. Without a returning resident permit, there was a presumption of having abandoned Canada, as their place of permanent residence, if they were outside Canada for more than 183 days in any 12 month period. This was rebuttable if they could satisfy Canadian officials they did not intend to abandon Canada as their place of permanent residence.
In any event, the OP's mother would not have been advised of the current PR Residency Obligation when she became a PR. Moreover, it is unlikely she would have been advised or given notice of the PR RO by any Canadian officials since unless she was involved in some transaction (with either CBSA or IRCC/CIC) since 2002 in which the RO was at issue. OP does not indicate any such transactions but of course potential instances include the PoE screening upon her return to Canada in 2009 (after an absence of more than three years) or any PR card applications (noting however that many who became PRs prior to 2003 and who had British or American citizenship never bothered to apply for a PR card).
In any event, no way "
the residency of 2 out of 5 years would have been explained" when she applied for PR. And even for those who have become PRs under IRPA, it is far from certain the RO was "
explained" to them. I have no recollection of any government official explaining the RO to me, ever (I became a PR in 2009), not in the process of applying for PR (during which I had no conversation with any government official), not in the process of landing, and at no time while I was a PR. That said, there has always (since 2008 anyway, when I started following this stuff) been plenty of prominently published information about the RO. And anyone with PR status leaving Canada for an extended period of time, other than children and those who otherwise may have compromised mental competency, should readily recognize they could be and very likely would be subject to some limitations, and again information about the RO is prominently published in numerous ways, so much so it is difficult to believe ignorance other than that which is more or less deliberate. In any event, even if it is certain a PR did not know of the RO, that would carry very, very little weight in making a H&C case for keeping status.
