Retaining PR on H&C grounds

[Beltex]

Hi Guys,

Here is the deal.

We are a family with children currently aged 16 and 18. We landed for our PR at the end of 2010 and returned to our home country to sell property and wind up our business interests which we expected to take a couple of years to complete. We planned to move to Canada full time early 2013 which would have allowed us plenty of time to complete our RO.
Unfortunately in January 2013 my wife's step father fell ill and died shortly afterwards. My wife felt she could not leave her elderly mother to cope on her own so soon after her husband's death so leaving for Canada was postponed.
Now my wife's sister has stepped up to look after her mother and my wife is happy to return to Canada.

We would need to apply for PRTD on H&C grounds so an honest question; What are our realistic chances?

I should add that I did set up a Canadian bank account in 2011 and have maintained it to date because it's always been our intention to return to Canada as soon as we could.

Another question; is the application for PRTD dealt with on an individual basis or as a family unit?

Lastly, if we returned with on a PRTD would we have to then stay a full 2 years without leaving Canada and subsequently obtain PR cards before travelling or would the PRTD be a "multi-trip" as some have described?

 

[Beltex]

Does anyone know if it's best to send in the H&C evidence with the PRTP application or should you wait for it to be called for?

 

[Rob_TO]

Does anyone know if it's best to send in the H&C evidence with the PRTP application or should you wait for it to be called for?

You need to submit it along with your PR TD application. I'll repeat the response here I gave in your other post with same topic.

My guess would be that CIC will not accept the H&C claim, and deny the PR TD request (leading to revoking your PR status).

Your H&C reasons do not account for initial 2+ years outside Canada which was your personal choice.
And for last 4 years, your wife's sister was also able to care for her mom so it will be tough to convince CIC your wife's continued stay there was absolutely required. H&C case would have a better chance if there were no other family members to take care of her mom.
And finally in order to use a medical reason of family member as H&C reason, you would be expected to show medical proofs of this. So if her mom had a specific medical condition that could be backed up by doctors assessments, hospital receipts, doctors recommendations for family support, specific instances of providing support, etc etc. Her simply being elderly, may not cut it.

Of course the only opinion that matters is that of the visa officer reviewing your file. They have discretion here and I've seen cases come out differently than expected, so you won't know the result until you try.

I should add that I did set up a Canadian bank account in 2011 and have maintained it to date because it's always been our intention to return to Canada as soon as we could.

Another question; is the application for PRTD dealt with on an individual basis or as a family unit?

Lastly, if we returned with on a PRTD would we have to then stay a full 2 years without leaving Canada and subsequently obtain PR cards before travelling or would the PRTD be a "multi-trip" as some have described?

Setting up a bank account is probably not very relevant, but no harm in mentioning it.

Not sure if PR TDs are applied as family or all sent individually.

Your children though would have good H&C reasons to keep their PR status since they were removed from Canada as minors. However I don't think this is much use to you if you and your wife's PRs were revoked.

If your H&C claim is accepted and PR TDs are approved, then you don't need to wait 2 years. The PR TD would act as H&C reason to overcome RO, so can apply for PR renewals immediately.

 

[Beltex]

Thanks ROB TO that's very interesting.

If the H&C doesn't cut it with the visa office we would have to submit another PR application - obviously this can't be done until the H&C case is resolved - any idea of how quickly these cases tend to get turned around and would you think there's any advantage to be had using an immigration professional that's au fait with such cases?

 

[Rob_TO]

Thanks ROB TO that's very interesting.

If the H&C doesn't cut it with the visa office we would have to submit another PR application - obviously this can't be done until the H&C case is resolved - any idea of how quickly these cases tend to get turned around and would you think there's any advantage to be had using an immigration professional that's au fait with such cases?

There are various steps in the process.
First step is to apply for the PR TDs. For this as I mentioned, you need to include as much proof of your H&C reasons as you possibly can. Perhaps it would be good to talk to an immigration lawyer experienced in dealing with H&C issues, on what specific proofs you can include for maximum effect. Remember whether your PR TD is accepted or denied is at the discretion of the visa officer, so lots of times it comes down to luck on if you get an easy going person vs someone who is incredibly strict.

If the PR TD is denied, you then have 2 options:
1. Do nothing. Within a set time all your PR statuses will be revoked, and you would then be free to apply again for PR from scratch if you qualify under any current immigration stream. You would need to do this before your eldest child is no longer a dependent.
2. Appeal the decision. For this you would be advised to get a lawyer. If your initial H&C reason was denied, your odds would not be good in an appeal unless there was some extra evidence you didn't submit with your original PR TD app. Appeals can take a long time to hear (months to years). If appeal is denied, your PR status would be revoked. Only after this could you then apply for PR again from scratch. You can't apply for new PR while waiting for appeal.

There is an alternative solution also. If all of you travel to the US, you can try to cross into Canada by land. In this case you don't need valid PR cards or PR TDs. When entering Canada the CBSA officer may notice you don't meet RO, and report you. If this happens your choices are same as 1 & 2 above, although the difference is you can stay in Canada while appealing.

If CBSA doesn't report you, then you can stay inside Canada for 2 straight years at which point you will be back in compliance with the RO so can then renew your PR cards. During these 2 years none of you could leave Canada for any reason whatsoever, else you could be reported upon your next entry. Also during the 2 years none of you would have valid PR cards, which could make certain tasks difficult. Anyone who didn't register for a SIN back in 2010, would not be able to get one or work for 2+ years until your PR cards are renewed.

 

[Beltex]

I think I will just have to get the application for PRTD in and hope the officer is sympathetic- having to reapply would be immensely frustrating but I would want to do that straight away so an appeal would be out of the question. Hopefully the children will retain their own PR so making the application process a bit simpler.

 

[Rob_TO]

Hopefully the children will retain their own PR so making the application process a bit simpler.

I don't think this would necessarily make things simpler. If your PR TDs are denied, it's probably better if you all simply lose PR status and re-apply as a family again.

If your own PR status is revoked but children's remains, then would they go live in Canada by themselves? Probably not, so during next few years while you re-apply for your own PR status your children will be PRs but living outside Canada. As such, in a few years after your own PRs are approved your children would then have to apply for PR TDs all over again (since they can't apply for new PR cards while living outside Canada). And since they were accepted once on H&C reasons but didn't move to Canada at that time, odds are their next PR TDs would be denied, and this would complicate things.

 

[Beltex]

Good point, I may be able to get in the EE pool (490 pts with the job offer I haven't got yet!) so hopefully it won't be years - need to get moved before another life event comes alsong and puts the kybosh on it!

 

[Rob_TO]

Good point, I may be able to get in the EE pool (490 pts with the job offer I haven't got yet!) so hopefully it won't be years - need to get moved before another life event comes alsong and puts the kybosh on it!

Keep in mind under current rules, your eldest will be disqualified as a dependent for any new EE app you intend to submit, as soon as they turn 19. So if your PR TD is denied you would need to have your PR status officially revoked and then submit your new application before then.

However it's expected the Liberals will increase age of dependents to 21 at some time this year, so you should still be ok.

 

[Beltex]

I'm going to put in the PRTD application I understand you need to submit passports but have some travel planned (not Canada) in about a month so will need our passports back by them. Do they check and return passports immediately and then continue to process the application or are the passports held onto?

 

[scylla]

I'm going to put in the PRTD application I understand you need to submit passports but have some travel planned (not Canada) in about a month so will need our passports back by them. Do they check and return passports immediately and then continue to process the application or are the passports held onto?

They hold onto the passports.

 

[Rob_TO]

I'm going to put in the PRTD application I understand you need to submit passports but have some travel planned (not Canada) in about a month so will need our passports back by them. Do they check and return passports immediately and then continue to process the application or are the passports held onto?

If the PR TD is approved, it must be placed physically into the passport. So as mentioned, they hold on to them until the very end and would send back PR TD + passport only after everything approved. If PR TD is denied, they would just mail back passport.

A H&C case for PR TD can cause longer than usual processing. You can include a note requesting urgent processing due to upcoming travel, however there is no guarantee how the visa officer will actually process it.

If you happen to be close to your nearest PR TD visa office, you can possibly drop off and pick up everything in person.

 

[Beltex]

Just checked and we actually travel 18/2 so I think we'll wait until after the trip before applying for our PRTD.

This might be me over worrying things but if PRTD are issued we will arrive in Canada and according to CIC we should then apply for PR cards and indeed Rob TO has stated that as we returned under H&C they should still process our PR cards even though we did not comply with our RO - just checking that's the case as I see nothing in the PR card application pack that refers

 

[Rob_TO]

Just checked and we actually travel 18/2 so I think we'll wait until after the trip before applying for our PRTD.

This might be me over worrying things but if PRTD are issued we will arrive in Canada and according to CIC we should then apply for PR cards and indeed Rob TO has stated that as we returned under H&C they should still process our PR cards even though we did not comply with our RO - just checking that's the case as I see nothing in the PR card application pack that refers

Yes, if PR TDs are approved, there will be coding (RC-1) on it that indicates it was due to H&C reasons. According to the manuals having approved H&C reasons overcomes the RO so you would be able to apply for PR card renewals immediately upon returning to Canada.

http://www.cic.gc.ca/ENGLISH/resources/manuals/enf/enf23-eng.pdf
Humanitarian and Compassionate Considerations (H&C):
When determining whether a permanent resident (PR) has complied with
the residency obligation with respect to being “physically present in
Canada” for 730 days within a 5 five year period, an officer must
consider H&C grounds (including the best interests of a child directly
affected by such a determination) prior to making a determination that
the person has lost their permanent resident status.

When an officer determines that humanitarian and compassionate
considerations relating to a permanent resident justify the retention of
permanent resident status, then such a determination will overcome any
breach of the residency obligation made before the H&C determination.

 

[Beltex]

Cheers Rob TO - your a gold mine of useful information