RO not met, Want to enter Canada with spouse and child from US

[SecularFirst]

Hello all,
My PR card is still valid till the end of 2021, however I have spent 3 years and 3 months out of Canada. I visited Canada every year for couple of day during my stay outside. I spent the entire time in US for school and Post grad training. I spent 4 years in Canada before moving to US, did my Masters in Canada while I was in Canada and got PR under CEC work experience. My spouse had also completed her masters in Canada before moving to US for further study. I am a registered dentist in two Canadian provinces and also have a job offer to work as dentist in Canada. I went to US for study and to attain further qualification. Now I want to return to Canada. I want to know if I can be allowed in and my chances for H & C appeal after being reported.

The reason I couldn't return 4 months earlier (in Compliance) is because my wife was pregnant and the doctor didnt want us to do unnecessary travel, Also we had health insurance through work here in US, while if we had decided to move, we would have been without health insurance for the first 3 months in Canada for child birth. The other reason was Covid situation for not travelling earlier with the newborn.

My wife has applied for her individual PR in express entry and we have added the child. The GCMS notes show eligibility passed, Medical Passed, criminality passed and Info sharing complete. We were expecting to receive my spouse's and child's PR by March 2020 but I think it got delayed due to covid. It appears from the GCMS notes that they will receive their PR sooner or later.
Given all these, I would really appreciate if anyone could advise how to best approach this situation. I want to settle down in Canada and has made considerable efforts to do it. I have paid the provincial license fee and got myself registered as Licensed dentist in two Canadian provinces.
I also have about 30k Canadian federal student loan, which I am paying back and will continue to pay back while I earn in Canada. Can I show all this to the officer to make a compelling H&C case while entering Canada.

Thank you.

 

[SecularFirst]

Additional details-
Since my wife and child are still waiting for their PR, I didnt want to return earlier to Canada and leave them alone. I mean I couldnt leave a newborn and returned to Canada just to meet RO. But given the Covid earlier, now the longer we wait for their PR to come, more I will be in RO breach. We have received the child's passport and can travel to Canada since family members are also exempt from travel restrictions. My wife has valid multiple entry Visa to Canada and child is visa exempt. We can now wait for their PR in Canada.

 

[jddd]

In my opinion, if you are reported, you do NOT have any chance of using the H&C route. The reason you lived outside Canada were personal choices and not extenuating. If your wife will get her PR anyway, should not be an issue as she can sponsor you for PR should you lose yours.

 

[SecularFirst]

Why would they refuse under H&C when spouse and child will be living in Canada? Wouldn’t they consider 4 years of time spent in Canada before leaving, studying for Masters in Canada, taxes paid in Canada on CEC and being licensed in regulated profession in Canada, having good chance for integration in Canadian society and productive member of society.

And if I got to spousal sponsorship, I would rather apply my own EE. Will have more than 500 points due to Canadian masters, work exp etc. This is absurd.

 

[Buletruck]

If the 4 years of residence falls outside the last 5 years, they don’t consider it as relevant. As for paying taxes, good for you, but that’s what everyone in Canada gets to do. No special exception for that. Nothing absurd about it, you made a choice, these are the repercussions.

 

[SecularFirst]

One and half of those 4 years spent in Canada were in the last 5 years from today. I was on work permit during that time. So If i count back from June 2020 till June 2015, I have spent one year and 9 months in Canada, plus I still have one year and 5 months validity left on my PR card.

 

[jddd]

You asked how to make a compelling H&C case right? In my opinion, nothing compelling about yours. You can still attempt to appeal using H&C, no one said you couldn’t. You need to research what humanitarian and compassionate grounds are so that you better understand it. You should also read some case law about those who pursued it.

 

[Islander216]

Consult an immigration lawyer, i think you have a decent shot at being able to renew your PR status given the time frame for meeting your RO was close, but you need professional advice to navigate this.

But they are right in the sense that technically, you had a long period of time to fulfill your residency obligations and you chose to prioritise other things. That's a personal choice, but i still think a good lawyer can help you make an appeal would be good enough to get your status renewed.

 

[mashulia_26]

One and half of those 4 years spent in Canada were in the last 5 years from today. I was on work permit during that time. So If i count back from June 2020 till June 2015, I have spent one year and 9 months in Canada, plus I still have one year and 5 months validity left on my PR card.

The time you were on a work permit doesn't count towards PR Obligations only the time after you became a permanent resident so you already failed meeting your RO.

 

[SecularFirst]

So basically they will tell me to either get new PR through spouse sponsorship or new PR through EE again. I have over 500 EE points due to Canadian masters and work experience in Canada and abroad. Anyways I am going to Canada next month and see what they say at the border. I am pretty sure if I explain to them that I was out of Canada to go to school, they will most likely understand and acknowledge it and let me live in Canada without the unnecessary more paperwork.

 

[devnill]

It's too late now but the simplest thing to do would have been for you to give up your PR and then apply as part of your spouse's application.

Doing simple calculation on the dates shows you were PR in Canada for less than 6 months.

 

[armoured]

To be clear, the compelling H&C grounds in your case are covid-related delays. You do have a case to make there, and they may well be sympathetic to this point. (Note though that no-one but you knows the exact details of how far out of compliance you are, etc). There also don't seem to be many cases (at least reported here) of how CBSA at border is treating such cases - partly because travel has been restricted until recently. In formal review, they HAVE to take this into consideration (although they do not have to agree).
One important point: be sure to have specific, detailed plans for complying with isolation/quarantine requirements. They may be much more focussed on that part right now.
As has been covered here multiple times, the sooner you return (the less out of compliance you are when you present at the border), the better your chances of getting waved through without being reported.
As noted, choosing to study abroad is not an H&C consideration. But having a job offer, being licensed in your province, etc., etc., are positives that border officers may take into consideration (not as H&C, but about your ties and seriousness).
When at border, just tell the truth if asked and keep it simple: you were planning to return earlier to stay, permanently, as demonstrated by your qualifications and provincial certifications and employment; your plans to return earlier were delayed due to covid (supporting documentation re your child's birth); you are here to stay, and have quarantine plans, residence arranged, etc., etc.
No-one can say how it will go at border. You may get waved through, you may not. At least in your case your options (applying on your own or having your spouse sponsor or going through appeal and potentially being successful) are multiple. If you do get reported, you may wish to get professional advice to figure out which route is best (given family considerations, etc).
One note, if you do get through border without being reported, you may not really be able to travel abroad until you are well in compliance with the RO, take that into consideration about your wife and child. Even if you are waved in this time without reporting, that may NOT apply on any future border crossings (and 'H&C' covid-related considerations may no longer help you).

 

[SecularFirst]

It's too late now but the simplest thing to do would have been for you to give up your PR and then apply as part of your spouse's application.

Doing simple calculation on the dates shows you were PR in Canada for less than 6 months.

I am not gonna give up the PR. If they want to take it away in the hearing thats okay. I will be staying in Canada until the hearing takes place, which could take a year and lets see if they want me to go out, will try to apply spousal sponsorship at that time. Moreover I doubt they will tell me to leave Canada and separate the one year old. And if they tell me to go out and apply spousal sponsorship that’s a tremendous waste of resources for everyone.

 

[devnill]

I am not gonna give up the PR. If they want to take it away in the hearing thats okay. I will be staying in Canada until the hearing takes place, which could take a year and lets see if they want me to go out, will try to apply spousal sponsorship at that time. Moreover I doubt they will tell me to leave Canada and separate the one year old. And if they tell me to go out and apply spousal sponsorship that’s a tremendous waste of resources for everyone.

If you do get reported, the wise thing to do would be to give up PR and re-apply. None of the time spent in Canada while a departure order is under appeal will count towards RO or citizenship and if the appeal fails you will generally only have 30 days to leave. Obviously nobody can say for sure, but based on others experiences reported here I don't think you will be reported but there's always a chance.

 

[SecularFirst]

You asked how to make a compelling H&C case right? In my opinion, nothing compelling about yours. You can still attempt to appeal using H&C, no one said you couldn’t. You need to research what humanitarian and compassionate grounds are so that you better understand it. You should also read some case law about those who pursued it.

By the time appeal comes up for hearing, the spouse and child(who would be 14 to 18 months old) would already be living in Canada and separating me from them for a 5 month breach of RO should be considered as hardship. Separating kid and family is something they will consider hopefully. Anyways I did spent 2.5 years out of Canada for study but did want to return earlier, the timing of the child’s birth and later Covid delayed it for 5 months for US. Leaving a pregnant wife and later small kid in different country just to make RO was not very H&C to me at that time.