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Who-accompanied-whom can matter for PRs living with citizen spouse abroad: UPDATE

dpenabill

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Apr 2, 2010
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In another topic, there was a recent IAD decision relevant to this subject cited, linked, and discussed. That has to do with an IAD decision published here: http://canlii.ca/t/hs76z

It is an interesting decision but does NOT illuminate much about how the who-accompanied-whom question will be addressed in other situations.

Here is what I offered . . .

This is indeed interesting . . . albeit in the sense that it represents ONE possible outcome among situations in which PRs are relying on credit toward Residency Obligation compliance based on the accompanying-a-Canadian-citizen-spouse (partner) in circumstances which might involve the who-accompanied-whom question.

There is a topic specifically about this issue, including a discussion about Mustafa v Canada, 2018 CanLII 47219 (see http://canlii.ca/t/hs76z ), which while relied on in this IAD decision, is merely another IAD decision. See https://www.canadavisa.com/canada-immigration-discussion-board/threads/who-accompanied-whom-can-matter-for-prs-living-with-citizen-spouse-abroad-update.579860/

Obviously an IAD decision will NOT offer a definitive decision regarding how the who-accompanied-whom question will apply in other cases. And, indeed, even if appealed and the Federal Court offered a decision, that too would NOT be a binding precedent and thus NOT definitive, since FC decisions are NOT binding on any other Federal Court . . . and there are already divergent FC decisions about this.

There are, nonetheless, some salient elements evident in this particular case. As is often the case, relative equitable factors might explain the outcome here, including the PR being in a relatively sympathetic situation and the extent of the breach was not huge.

To my view the bigger question is what became of this individual's citizenship application. In this regard it warrants noting that this is a case which began when there was a Harper government and a persistent agenda to preclude granting citizenship to those who appeared to apply-on-the-way-to-the-airport.

In any event, it needs to be emphasized that the outcome in this particular instance does NOT represent the rule. Indeed, even though this particular case arose under a Conservative government, it was the current Liberal government arguing for a who-accompanied-whom analysis that would deny RO credit and thus result in the loss of PR status here. While THIS IAD panel did not agree, the Minister appears to have argued for the application of a who-accompanied-whom approach.
 
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canuck78

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Jun 18, 2017
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In another topic, there was a recent IAD decision relevant to this subject cited, linked, and discussed. That has to do with an IAD decision published here: http://canlii.ca/t/hs76z

It is an interesting decision but does NOT illuminate much about how the who-accompanied-whom question will be addressed in other situations.

Here is what I offered . . .
:rolleyes::rolleyes::rolleyes: Pretty ridiculous.
 

dpenabill

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Apr 2, 2010
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Further observations about the IAD decision in the Graziella Romain Louis case http://canlii.ca/t/hxz44 in which this particular IAD panel applied the interpretation and principles articulated in Mustafa v Canada, 2018 CanLII 47219 see http://canlii.ca/t/hs76z

and NOT the interpretation and principles articulated in Diouf, 2011 CanLII 59952 see http://canlii.ca/t/fn81r

These and related decisions are discussed in depth and at length in previous posts above.


FACTS AND ISSUES IN THIS CASE:

What is most interesting about this particular case is the Minister advocated a negative who-accompanied-whom analysis EVEN THOUGH THIS WAS NOT an issue in the original visa office decision to deny the application for a PR Travel Document and NOTWITHSTANDING the fact that Louis had, it appears, solidly established actual residence in Canada before going abroad (apparently living continuously in Canada from at least 2007 to October 2011). Indeed, Louis had sufficiently established residency to qualify for and be approved for a grant of Canadian citizenship.

Thus, this case does NOT fit within the range of "NOTABLE EXCEPTIONS" (to the standard approach which allows the credit so long as the couple have been living together, with NO regard to who-accompanied-whom) discussed at length above.

It is relatively easy to identify the probable reason this case was flagged and approached the way it was: it appears that Louis was among those the then Harper government perceived to be one in which an applicant for citizenship was applying-on-the-way-to-the-airport, a class of citizenship applicants specifically targeted by the Harper government . . . so much so that the Harper government specifically adopted a provision in the requirements for citizenship which provided grounds to summarily deny any applicant who left Canada to live elsewhere while a citizenship application was pending (this provision was adopted after Louis had already been approved for a grant of citizenship, and it was subsequently repealed by the Liberal government).

Back when the visa officer denied the Louis PR TD application the Harper government was aggressively applying strict interpretations of the rules and laws to preclude a grant of citizenship to such individuals and to also terminate PR status.

Which leads to another significant prong of the facts: the visa officer's decision did not involve ANY consideration of credit toward the RO for time accompanying a Canadian citizen . . . Louis did NOT make a case for such credit in her PR TD application.

It was AFTER the visa office denied the PR TD application that Louis and her partner claimed they were a common-law couple who had been living together, and that she was thus entitled to the credit for time they were living together abroad.

This does not explain why the Minister was still advocating a narrow and strict interpretation of the "accompanying" credit before the IAD in 2018 when this appeal was heard and decided. Especially considering, again, that Louis had indeed established actual residency in Canada before going abroad (see, in contrast, the facts in the cases following the Diouf approach, in which with unusual exceptions the PRs had minimal establishment in Canada prior to going abroad). Especially considering that the Canadian citizen could simply apply to sponsor Louis again if PR status was terminated.


RAISING THE QUESTION: Does the Minister's approach in this case signal a policy toward a more strict approach considering who-accompanied-whom?

This single IAD case is NOT anywhere near enough of an indication of a policy change to infer any signal. While it cannot be seen as signalling a more strict who-accompanied-whom approach, it leaves open the possibility there is some trend in that direction.

The more looming RISK factor is the coming Federal election and the possibility of a Conservative government, and if so that would quite likely mean a definite trend toward a more strict approach.



I wonder if the Minister will appeal to the Federal Court.
I'd be surprised if there was an appeal as this would open up the term "accompanying" for a definitive interpretation of the word by the FCC. It's a can of worms as it appears here and there in legislation. As it is the IAD may or may not live by this analysis and the department can wait for a more important case to challenge, if it appears at all.

The risk management here would be to either lose this one and continue with the current practice, or to have every instance of "accompanying" in the Act scrutinized for any vulnerabilities. That would be a task.
Of course I do NOT know what criteria the litigation department of IRCC employs in deciding which decisions to appeal, BUT it is readily apparent that MOST IAD decisions are NOT appealed. The Minister's representative at the IAD hearing, Isabelle Joseph, can make a recommendation to appeal, of course, and that is probably a significant factor.

However, NO, a Minister's appeal would NOT necessarily "open up the term "accompanying" for a definitive interpretation of the word by the FCC."

NEITHER IAD decisions NOR Federal Court decisions establish binding precedents. There are already multiple IAD decisions and FC decisions interpreting "accompanying" differently in relation to the PR Residency Obligation credit available while "accompanying" a Canadian citizen spouse abroad. There is nothing about the Louis case which suggests it is likely to result further appeals beyond the FC even if it is appealed to the FC.

Remember, both IAD and FC cases are mostly about the facts in the individual case and applying the law to those facts.




Pretty ridiculous.
There is one case that is constantly used as precedence which is normal in the law but don't agree with the first judgement. In this case the partner clearly moved to Haiti after the woman had been living there. She also claimed she needed support after a traumatic divorce so moved home but was already in another relationship. She literally remained in Canada until she applied for citizenship and left and only planned to return for the ceremony.
Not sure what you are saying is "pretty ridiculous."

There is NO "one case that is constantly used as precedence" in relation to the who-accompanied-whom issue. Indeed, the who-accompanied-whom issue is mostly tied to particular fact patterns, which with rare exceptions (now including the Louis case) is ONLY applied within a range I have described as "NOTABLE EXCEPTIONS" to the standard approach pursuant to which the credit is allowed so long as the couple is living together.

What is more perplexing about Louis is the extent to which the Minister's representative advocated the who-accompanied-whom approach, as I discuss above, especially considering that Louis' spouse can simply sponsor her for PR again anyway . . . why waste the effort to strip this PR of status when she can so easily simply regain it?

Unless the citizenship case is also still pending. That seems unlikely. But it is possible. There were some flaws in the Harper era citizenship laws regarding suspending citizenship applications (such that the government was in effect compelled to proceed with grants of citizenship in cases which should have gone the other way), which the Liberal government eventually fixed (which fixes would not apply to a 2014 citizenship grant decision), and perhaps it is the grant of citizenship which is looming in the balance, explaining why the Minister was still pushing for a negative outcome in this case. That seems improbable to me, but again it is possible. After all, there are few if any signs that the current government is otherwise pushing a stricter interpretation of the accompanying a citizen credit toward RO compliance. That is, I rather doubt this case has much importance beyond its impact on the individuals involved.
 

dpenabill

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Apr 2, 2010
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A Further Observation and Clarification: There Is Little or No Sign A More Definitive Interpretation of "Accompanying" Is Needed.

Some of the posted comments appear to suggest the who-accompanied-whom question poses a problem in need of a fix, a definitive ruling or change in the law; that is, that the meaning of "accompanying" needs clarification or a definitive interpretation.

I do NOT see it that way. Not at all.

There is a STANDARD approach to allowing credit toward the PR Residency Obligation based on time abroad accompanying a Canadian citizen spouse. It is amply illustrated in the appendix to the guide for PR card applications in which the Residency Obligation is addressed in detail, including a detailed description of what is required to document eligibility for the credit and the documents which will support this. THIS DOES NOT SUGGEST PR's PROVIDE, LET ALONE REQUIRE PR's TO PROVIDE, ANY INFORMATION ABOUT WHO-ACCOMPANIED-WHOM.

There is NO indication that who-accompanied-whom is considered EXCEPT in a narrow range of situations, situations involving what I have described as "NOTABLE EXCEPTIONS."

ENF 23 still states that "it is not necessary to determine who is accompanying whom." (Section 7.5 on page 25)

As I have discussed, I do not see that the IAD Louis case indicates any significant change . . . sure, it extends the range of notable exceptions a bit, but it is nonetheless a case in which it is easy to see why the government had concerns and was approaching the PR more stringently.

So sure, as this topic addresses, there are SOME situations in which PRs living abroad and relying on the accompanying-a-Canadian-citizen-spouse credit should take extra care and evaluate their situation with due consideration for the possibility that who-accompanied-whom could be a factor. But generally, as I have oft emphasized above, a PR settled in Canada who subsequently moves abroad WITH a Canadian citizen spouse, does NOT need to worry about a who-accompanied-whom question SO LONG AS the couple is primarily living together.
 

dpenabill

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Apr 2, 2010
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Just an update to cite and link a late 2019 IAD decision which goes into some depth analyzing differing approaches to the accompanying-citizen-spouse credit:

In'Airat v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124093 (CA IRB), http://canlii.ca/t/j4cls

The analysis is worth reading for anyone who has concerns about this issue or who comments in response to queries posed about this issue. I do not intend to try paraphrasing or even summarizing the Panel's analysis.

EXCEPT: This panel cites some legislative history which supports the view that who-accompanied-whom does NOT matter. Otherwise this panel holds that nonetheless one must accompany the other and therefore to qualify for the credit the couple must either actually travel abroad together, "or within a reasonable time-frame" both go to a place they reside together. Thus rejecting the approach that just living together abroad will qualify for the credit.

The analysis seems persuasive.

While it is entirely not clear to what extent it is an approach that will be followed by CBSA or IRCC or other panels, there is another 2019 decision by a different panel adopting a similar (though not as fully analyzed) approach (numbered differently), with a different result given different facts. See Jiang v Canada (Citizenship and Immigration), 2019 CanLII 128447 (CA IRB), http://canlii.ca/t/j4wmz

In particular, the influence that reasoning has on other players (other IAD panels, IRCC, CBSA, even the Minister) is NOT clear is that there is also another 2019 IAD decision going the other way:
Gehrke v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 124068 (CA IRB), http://canlii.ca/t/j4cms
where the approach that the credit applies as long as the couple travel together was rejected, and rather the credit is only available where the Canadian citizen "is the primary person or the cause for being outside Canada." One acknowledged factor was how long the PR has lived and worked abroad, approaching 9 years. One possible but not acknowledged factor might be discrimination. See the decision to decide for yourself.
 
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dpenabill

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A Further Observation and Clarification: There Is Little or No Sign A More Definitive Interpretation of "Accompanying" Is Needed.

Some of the posted comments appear to suggest the who-accompanied-whom question poses a problem in need of a fix, a definitive ruling or change in the law; that is, that the meaning of "accompanying" needs clarification or a definitive interpretation.

I do NOT see it that way. Not at all.
Unfortunately, I am WRONG on too many occasions (I am, for sure, NOT an expert, even if I can find and regurgitate certain information at length). The post quoted above, from nearly a year ago, is an example. I was WRONG.

This is more obvious lately, but to be clear, I was also wrong back then, about a year ago.

A more definitive interpretation of "accompanying" is needed.

Many of the somewhat recent cases which illustrate that a more definitive interpretation of "accompanying" is needed were already well in the pipeline a year ago. And after all, some six months plus before that it was @Tubsmagee and @zardoz who did the research and identified the surge in cases where who-accompanied-whom was making a difference. I was slow, way too slow, to adequately pick up the trend . . . especially since it was becoming increasingly the case that representatives for both the Minister of IRCC and the Minister for Public Safety were arguing for the who-accompanied-whom approach.

There is stark inconsistency in how the rules are being applied depending on which official is making the decision, including those acting as quasi-judicial decision-makers (the IAD panels). There are now three rather commonly applied approaches,
-- credit depends on who-accompanied-whom, OR​
-- 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), OR​
-- credit is available for any days the PR was ordinarily living together with the Canadian citizen partner abroad (does not matter who-accompanied-whom)​

Canadians, including Canadian PRs, deserve to know what the rules are and how they will be applied. Canadian PRs should not need to guess which interpretation of the rules will be applied to them. The maxim that individuals are responsible to know the law that applies to their behavior depends on the law being knowable, not a guess as to which version of three might be applied.

The situation is a reminder of the mess caused by differing interpretations of the citizenship residency requirement before the law changed to impose a physical presence requirement. For decades there were a number of different ways the citizenship residency requirement was interpreted, and ultimately each individual Citizenship Judge was free to apply whichever version that CJ thought was the right one. Thus, applicants did not know, not for certain, which way the rules would be applied to their case. Much inconsistency and injustice resulted.

Now we have three rather different interpretations of the statutory provision allowing credit toward the RO for the time a PR is abroad accompanying-a-Canadian-citizen-partner. Any particular PR who has been living abroad with a Canadian citizen partner may encounter any one of these three approaches. The results involve much inconsistency. Many if not most of us perceive such inconsistency and lack of predictability to likely result in injustice. That's not good.

It is time for either the Parliament to clarify what the rule actually is, or amend the law to implement a more specific rule (like Parliament replaced a vague residency requirement with an actual physical presence requirement for citizenship). Or, there should be a review all the way to the Federal Court of Appeals which can impose a definitive interpretation of what "accompanying" means (a Federal Court decision will not accomplish this because these decisions do not establish binding precedent).


IN THE MEANTIME . . .

In the meantime, as is wont to happen, in the last few weeks this issue has suddenly surfaced in multiple scenarios underlying various queries in this forum, which along with some of the commentary suggests there is probably more than a little misunderstanding and some outright misconceptions about the accompanying-Canadian-citizen-partner-credit toward RO compliance. And I have been banging out some detailed responses, scattered about in multiple topics. Including discussion and citation of some of the more recent cases (mostly 2019 cases but some 2018 cases I had not previously seen as well).

And in the meantime, what more recent IAD decisions illuminate is that it is NOT safe to categorize the who-accompanied-whom question as an outlier or unlikely absent "notable exceptions." These days consideration of who-accompanied-whom clearly appears to be more than merely possible, a real risk in certain situations, and perhaps quite likely in certain situations.

The latter, in which it now seems likely some version of who-accompanied-whom questions might arise, includes a few such situations that have been discussed in other topics here within the last two to three weeks or so.

I am hoping to keep this topic as current as practical. It gets difficult and time consuming chasing these discussions in multiple topics.

Without revisiting the recently posted commentary in other topics, but in an effort to keep the sources cited here fresh, here are some additional decisions regarding this issue:

Kirpal v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 130765 (CA IRB), http://canlii.ca/t/j5hmh
No credit given because citizen was accompanying the PR, not the PR accompanying the citizen; but H&C relief allowed

Haddadian v Canada (Citizenship and Immigration), 2019 CanLII 130720 (CA IRB), http://canlii.ca/t/j5hkm
No credit based on no temporal nexus in moving abroad (PR abroad was in common law relationship with a Canadian the PR met AFTER the PR was already abroad)

And as already oft cited in other topics, the new PRIs (adopted February 2020) containing guidelines for Residency Determinations is here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/card/permanent-resident-determination.html


Pleading Excuses: Part of why I was slow to pick up the trend is that it was only four and five years ago that CIC/IRCC was increasingly issuing multiple-entry PR Travel Documents to some PRs living abroad with a Canadian citizen partner, which seemed to signal a more lenient, flexible approach to such cases. And right up to now, IRCC's request for supporting proof to get this credit is still focused on showing the couple are living together abroad (in conjunction with showing the qualifying relationship and the partner's citizenship), with NO questions about why the couple are living abroad or who accompanied whom.
 
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