RO Compliance & Date of PRC application

[dpenabill]

As noted in the previous post, there are two main questions I am trying to address:

-- What sort of "credit" or benefit will Metallo, and similarly Rastgou, get for days in Canada after making the PRC application up to the date of 44(1) Report?​

-- What sort of "credit" or benefit might a PR get for staying in Canada pending an appeal??​

I will address the latter first. My sense (not certain but it seems) this is the focus of concern expressed by @canuck78 and it is quite likely more than a few Canadians share this concern. I understand. Not only does it seem unfair to reward those who break the rules just because they stay in Canada after, in effect, getting caught breaking the rules, but there probably is reason to apprehend this to some extent may encourage breaking the rules.

BUT it should be recognized there is little, probably very little, about the nature and scope of the "credit" being discussed here, which should in anyway encourage failing to comply with the RO. This is almost exclusively about what happens, and why, AFTER a PR has breached the RO. No one should make decisions relying on getting this kind of credit. It frankly is not, not ordinarily, not usually, enough to make the difference.

So, the latter question, what sort of credit or benefit might a PR get for staying in Canada pending an appeal . . . this question is not directly posed by the Metallo case, at least insofar as it has not been a factor in either the IAD decision or McHaffie's FC granting of the appeal. As previously noted, however, it is possible it could be a factor when another IAD panel redetermines Metallo's fate.

By Regulation, IRPA Regulation 62 in particular (cited in full and linked in a previous post) mandates that credit toward RO compliance does not include credit for days in Canada after the decision being appealed (date of 44(1) Report or PR TD denial).

So no matter how long the appeal process takes, no matter how long a PR manages to "prolong" proceedings, staying in Canada in the meantime does not help the PR in regards to determining if the PR is in breach of the RO.

And for the most part it seems IRCC, the IAD, and the FC, even in regards to weighing H&C factors, are generally reluctant to overtly give positive weight to the PR just for staying. But, as noted, nonetheless the conventional wisdom, which again seems well founded, is that staying does in practice make a positive difference.

This is where things are a bit tricky and is a subject I have been dancing around for quite some time in this forum. Obviously, this time in Canada (during the appeal process) can help, in effect, smuggle positive weight into the H&C calculation through other factors, in regards to developing ties in Canada and degree of establishment in particular. The caveat is that even though this might bring some additional positive weight into the calculation, I do not recall seeing it given much weight, typically not enough to tip the scales in a situation where things are leaning toward denying H&C relief otherwise.

In contrast, what I have mostly seen is that being absent from Canada pending appeal, NOT being IN Canada, tends to be considered a negative factor, an unfavourable factor carrying enough negative weight to tip the scales against H&C relief in a case where, otherwise, H&C relief might be allowed.

This gets into the vagaries of terminology used by different IAD panels, and similarly among different FC justices. This can get bogged down in nuances about weighing and balancing the different factors, including neutral factors (I avoid thinking too hard about how a neutral factor carries weight because, well, that tends to be a rabbit hole leading to places where a red queen might be standing on her head).

However one cuts this cloth, and whatever terms are used, what it appears to come down to is that staying in Canada accomplishes two things:

-- it negates the potentially very negative factor of being outside Canada pending the appeal, and​

-- it simply makes allowing the PR to keep status more palatable, since the PR is settling in Canada at least apparently consistent with the purpose of granting PR status, so the individual can settle in Canada​

So it helps to stay, perhaps not by much but some, but it really hurts to not stay.

Which, frankly, makes good sense. Staying is not going to cure the breach. Staying is not going to overcome an otherwise weak H&C case. But staying will avoid the negative weight that remaining outside Canada would of course carry, and it otherwise signals the individual is settling in Canada as the grant of PR is intended.

Finally bringing this back around to Metallo and Rastgou. Finally focusing in on what it means to give them credit for days in Canada after applying for a PRC up to the date a Report is prepared.

Relative to calculating RO compliance, for the purpose of determining if the PR has complied with the RO, it very much appears that credit is given (as a matter of policy and practice), as is consistent with a more or less literal reading of the statute and regulation, which effectively mandate giving credit to any days in Canada before the date a 44(1) Report is prepared.

But that was not the situation for either Metallo or Rastgou. For both of them, getting that additional credit was not enough. Despite the credit, they were still in breach of the RO.

In both cases the IAD declined to give this time period in Canada, after the PRC application, positive weight, a "credit," toward the H&C calculation. In Rastgou the Minister apparently argued for this. In Metallo the Minister allowed such credit should be given but argued the difference getting such credit would make is not enough to make the IAD's decision unreasonable.

I am kind of with the Minister's representative on this one. The published decision states:
"The Minister argues the difference in the extent of the shortfall (from 40% to 18%) was not enough to change the outcome."

Metallo, after all, is not about a new immigrant navigating the sometimes tricky path leading from a life in the home country to a new life on another continent. Metallo became a PR in 1972. Presumably the IAD reviewed and evaluated the whole range of factors considered in such cases. The extent of the breach is just one factor, and as the Minister apparently argued, even giving Metallo the additional credit, the extent of the breach was still substantial, still falling short by more than a hundred days, particularly for someone who had been a PR for more than forty years.

That is, the "credit" at stake here is not about whether the PR is in breach. The PR is in breach. At best, it is about the extent of the breach. And in Metallo's case, even with the credit he is still in breach by more than a hundred days, which in the overall context of Metallo's story, I see the Minister's point of view, that hardly seems enough to conclude the IAD was unreasonable.

I realize I have spent a lot of effort wrestling with some rather narrow aspects of the RO breach H&C case. Especially since the main reason for focusing much attention on Metallo and Rastgou is because they mostly establish that a PR should (under the current rules) get credit toward RO compliance for days in Canada between the date a PRC application is made and the date of examination or decision, even though that was not the particular issue for either Metallo or Rastgou.

But it is otherwise helpful to more fully explore how some factors, like days in Canada that do not get counted toward RO compliance itself, can influence the decision making, and more particularly the nature of any benefit the PR might get from staying in Canada while an appeal is in progress.

So, let me conclude this by bringing up the more common if not obvious example. Among the more common scenarios is the PR who has had to stay abroad for financial reasons, mostly for a particular job, while the PR's family has settled in Canada. This is perhaps the most common situation in which staying pending an appeal can make the biggest difference. And while it is not stated as such in the IAD decisions, the difference is in how much negative weight continuing to live and work abroad has, and in effect removing that negative weight from the calculation by staying and at least appearing to have finally settled in Canada.

The latter is more than a mere example of how this particular factor can influence a specific case. It illustrates how intricately connected all the elements of the H&C case are, how dependent the weight one factor can carry is on other factors. Making predictions all the more difficult and speculative.

But the overriding take-away, the looming caveat, is that PRs still in a decision-making mode should NOT give much consideration to these nuances in the H&C case. The sooner the PR gets to Canada to stay, the better. Once in Canada, always better to wait to be in full RO compliance before making a PRC application. These nuances, the battle over some credit for this or that period of time, for the PR who is in breach of the RO, is only about making the case after the fact . . . about the adjudicating the issues, NOT about deciding how much longer to stay abroad or about when to apply for a new PR card.

 

[dpenabill]

Wrapping up and putting a bow on it . . . sort of. Well, not really. File this installment under information provided by IRCC actually makes things more confusing.

Many complain that the information provided by IRCC is, well, not optimal (including not merely a few, shall we say, more critical characterizations, sometimes laced in more colourful terms). And in many respects the criticisms are well-founded. Not all, but that tends to chase ghosts down an entirely different rabbit hole.

But, in any event, I could have, some probably think I should have, started this whole discussion with the applicable operational manual, ENF 27 (section 8.7 describing the process for determining RO compliance for PRC applications) and the PDI for "Permanent resident status determination" in the context of applications for a "status card" (meaning the PR card).

Link to pdf version of ENF 27 can be found here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html
The link to the PDI is here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/permanent-resident-determination.html

Spoiler Alert: they appear to be NOT consistent.

Offset that, however, by noting that in actual practice it appears PRs are actually, regularly, getting the benefit of counting days in Canada after the date of the application, at least so long as that means as of the date of a formal residency determination, on that date, they are in compliance. Neither Metallo nor Rastgou met this . . . they were both still in breach even counting days in Canada after the PRC was made.

So, at the risk of dragging this back into confusion, the PDI and ENF 27:

The PDI version, in particular, illustrates why many find IRCC information frustrating. Here is what it says about "Determining if residency requirements are met:"

Officers shall use the date that an application is officially received in the office in the examination of residency status. Using this date does not disadvantage the applicant in any way if the formal assessment of an application is delayed for any period of time following receipt of the application.​

At examination, it is sufficient for those who have been permanent residents for . . . 5 years or more to demonstrate that they have met their residency requirements in the 5 years immediately before examination​

What this whole topic is about is largely reflected in the one sentence here: "Using this date does not disadvantage the applicant in any way if the formal assessment of an application is delayed for any period of time following receipt of the application."

BUT in the remainder of the PDI the instructions more or less contradict what I have described based on Metallo and Rastgou (and other sources), going on to state: "For people who have been permanent residents of Canada for 5 years or more, the only 5-year period that can be considered in calculating the applicant’s residency requirements is the one immediately before the application is received in the office."

Which is to say that days in Canada after the date the application was made are not considered. Which is to say, if the residency determination is absolutely based only on the five year period prior to the date of the application, for the PR still in Canada pending processing that application that would indeed be disadvantaging that PR.

In contrast, Metallo, Rastgou, other official decisions, and statements by the Minister's representative, and what Section 28(2)(b) and Regulation 62 prescribe, make it clear the applicant for a PRC is entitled to credit, at the least credit toward the calculation of RO compliance, for days in Canada after making the PRC application up to the date of the "examination." Which, again, is what this topic has mostly focused on.

And, the way it is stated in the PDI, I would add, is contrary to what is stated in ENF 27. It similarly says "The residency period to be used for the determination is the five-year period immediately prior to the date of the application."

But the crux of it, in the context here, is that is immediately followed by this: "However, exceptions can be made to take into account the five-year period immediately prior to the time that the application is reviewed by an officer, if it allows for the applicant to benefit from the processing delay on IRCC’s part."

That is, the applicant gets the benefit of whichever date would support a positive determination as to RO compliance.

Note: neither the PDI nor the operational manual are binding on IRCC. Or CBSA.

In contrast, Section 28(2)(b) and Regulation 62 are binding.

My take is that there is little or no confusion in actual practice, NOT USUALLY, and if a PR makes a PR card application when it appears (as of the date of the application) the PR is not in RO compliance, if the PR is nonetheless in compliance with the RO by the time the PR submits a response to a request for additional information or documents, or appears for an interview, or there is otherwise a decision being made, the PR gets the benefit of counting days in Canada after the date of the application.

My take on the reason we do not see this explicitly stated in formal IAD decisions, but rather only see indirect reference to it in decisions like Metallo and Rastgou, is that this is so regular there is never (or at least rarely) a negative decision made in such cases. No appeal. Not addressed on appeal.

Overall: the whole point of this topic was to fully document that even if a PR is in breach of the RO on the day a PRC application is made, if that PR STAYS in Canada after applying, for purposes of a residency determination the PR will get the benefit of additional days in Canada before a negative decision is made. (Further noting, that even if the residency determination is negative, such as where days in Canada after applying are still not enough to make the PR in compliance, those days will likely be considered a positive factor in the H&C analysis as well, but that is not as certain.)

Important Caveat: A factor which can and is actually quite likely to put a wrench in things is when the PR is abroad, or APPEARS to be abroad, while the PR card application is pending. This is a different scenario, addressed in various contexts in numerous other topics. This invites complex elements into how things are handled. PRs in breach of the RO or who are cutting-it-close would be wise to very carefully weigh their options and priorities before going or staying abroad while a PR card application is in process.