Learning moments – How to properly and ethically advise a client who is in breach of the residency obligation
December 9, 2020
Hello, fellow practitioners! Today’s question deals with how to properly and ethically advise a client who is in breach of the residency obligation.
Question:
My clients are a husband and wife of Pakistani nationality, currently living and working in the UAE. They became permanent residents in 2016 and their current permanent resident cards expire in 2021.
When the clients landed in 2016, the wife had just got a great new job in UAE, something which happened unexpectedly and before they received their permanent resident visas. Knowing that the residency obligation required only that they spent 730 days of their first 5 years in Canada, they did not feel particularly rushed to relocate permanently to Canada immediately. Instead, they opted to spend the first 2 years advancing the wife’s career, then relocate to Canada in plenty of time to comply with the residency obligation.
While completing her second year of work, the wife applied for a transfer to the Canadian branch of the multinational company for which she was working. The transfer was approved and she was given permission to move to the Canadian branch in 2019. This transfer would occur within year 3 of the 5 year period under consideration for residency obligation, bringing them close to violation of the requirement but still within the allowable period of absence. The benefit however would be that they would relocate with an assured excellent employment position with a competitive salary and benefits package. They thought it was the best of both worlds.
In 2018, the couple gave birth to their first child. That child was born in the United States because the wife’s parents and sisters lived there and she preferred to have the baby close to her family who could help her through the final stages of pregnancy and initial stages of motherhood.
Unfortunately, and totally unexpectedly, in 2019 the wife’s job transfer offer was revoked due to internal restructuring of the company. The couple was devastated, but more importantly they were not financially prepared to relocate to Canada without this job lined up. They therefore stayed in UAE for 6 more months in order to save enough money to support themselves in Canada for an initial period of unemployment. This put them into breach of the residency obligation.
The clients have been in touch with me, now ready to move to Canada, and I am not sure how to properly advice them. Help!
Answer:
This is an interesting scenario, and other than the specific details of this family’s circumstances, it is pretty common.
Let’s start with some basics. S.28 of IRPA requires that a permanent resident comply with a residency obligation within every “5 year period”. That 5 year period is defined as the first 5 years after landing, if the person has been landed for 5 years or less. If the person has been landed for more than 5 years, then the period is the most recent 5 years preceding the date of examination. In the case of this family, since they were landed in 2016, their 5 year period is 2016-2021. You will need to find out more precisely the exact date of landing in 2016 in order to calculate the exact 5 year period under consideration.
If a person is in breach of the 730 day residency obligation, they can still request positive consideration under humanitarian and compassionate grounds before any enforcement action is undertaken.
Keep in mind that a person’s PR status exists independently of their PR card. Having a valid PR card creates a presumption of having PR status, but that does not render the individual “home free”. A person can have a valid PR card yet still be in breach of the residency obligation and therefore exposed to the risk of having their PR status revoked. Similarly, not having a valid PR card creates a presumption of not having PR status, yet the person might still have valid PR status and be in compliance with the residency obligation despite not having a card. This would be the case for example where a PR lives full time in Canada and never bothered to renew the card because they were not intending to travel. There is no requirement for a PR to carry a valid PR card. Also keep in mind that a PR who holds that status has a right of entry to Canada, whether or not they hold a valid PR card and whether or not they are in breach of the residency obligation. However, having a valid card is necessary if the individual is traveling abroad and needs to board a commercial vehicle such as an airplane in order to return home to Canada. No airline will board a traveler without a valid entry document to Canada.
All of the above is important because your clients have valid PR cards but at the same time they are definitely in breach of the residency obligation by a significant amount. This breach however is only important if it is identified by an officer and enforcement action is taken as a result. It is therefore useful to review how a residency obligation examination is triggered. There are 3 basic scenarios under which an individual is likely to be examined for residency obligation: 1) when a person applies for a PR card replacement or renewal; 2) when a person applies for a PR travel document at a Canadian visa office abroad; and 3) when a person appears at a Canadian port of entry seeking admission to Canada as a PR. If none of these things occur, then the person can exist as a PR in breach of the residency obligation indefinitely.
The above also means if your clients travel to Canada using their currently valid PR cards, they are in risk of an officer at the port of entry recognizing the breach and possibly taking enforcement action as a result. The chances of the officer recognizing the breach is in this case very high because the couple will presumably be bringing with them their US citizen child who is not a PR, and this will certainly attract some questioning about why he is not a PR.
My first piece of advice to the clients would be to return to Canada as soon as humanly possible, but definitely before their PR cards expire. Having valid PR cards, they are currently able to board a flight to Canada without a problem, and when they appear at the Canadian port of entry, they have a right of entry to Canada. The longer they wait to relocate to Canada, the more significant their breach of residency obligation becomes, and the more likely it is that an officer will take enforcement action as a result. They can request a review of their circumstances under humanitarian and compassionate grounds. If the officer determines this positively, then they will be allowed to pass with no enforcement action and then they have to focus on maintaining their 730 days in the future. If the officer determines this negatively, then they will still have a right of appeal to the Immigration Appeal Division, and they will be allowed into Canada because they retain their valid PR status until such time as the appeal is fully litigated.
I generally advise clients that it is a good idea to appear at the port of entry prepared with submissions and corroborating documents to establish their humanitarian and compassionate grounds in the event that an officer recognizes the breach of residency obligation and decides to do an in-depth interview. A humanitarian request is only as good as the supporting evidence, so it is always better for the client to be ready with everything pre-prepared, instead of risking being caught off guard in an examination with no organization of their thoughts and no evidence of the grounds that they claim.
1 of 3 things could happen at the port of entry. First possibility is that the officer either doesn’t recognize the breach of residency obligation or recognizes it and takes no action. In that case, the client can simply enter Canada and focus on future compliance with their residency obligation from now on. Second possibility is that the officer recognizes the breach, conducts an examination and accepts the humanitarian argument, thereby allowing the client to enter Canada with no enforcement action. Again, the client should now focus on future compliance and avoid breaching the residency obligation going forward. The third possibility is that the officer recognizes the breach, conducts an examination and rejects the humanitarian arguments. The officer will then issue a conditional departure order, but the person retains their PR status until they are finished exercising their right of appeal to the Immigration Appeal Division. They will still be allowed to enter Canada, because they are still PRs.
The US born child is visa exempt and is likely to be admitted to Canada as a visitor. Make sure your clients are prepared to argue dual intent – meaning they plan to sponsor the child for permanent residence but they understand right now that the child can only visit and they will ensure the child remains in valid status throughout. Once granted entry to Canada, the clients can focus on filing a sponsorship application for their US born child. Filing the sponsorship could theoretically trigger a residency obligation examination, though the chances are not significantly high. You certainly must advise the clients of the risk obviously. However, at the end of the day it is likely that they have no choice except to take the risk, because not sponsoring their only child is probably not a conceivable option in your clients’ mind.
If the clients are allowed to enter Canada without further enforcement action, they should if at all possible NOT apply to renew their PR cards until they are in compliance with the residency obligation. If they apply to renew their PR cards, they will again put themselves under examination, and there is no guarantee that the officer considering the PR card renewal application will give positive humanitarian consideration. It is more likely that they will if the port of entry officer gave positive humanitarian consideration, but it is not guaranteed. Given the fact that there is no legal requirement for a PR to carry a valid PR card (unless they need it for traveling purposes), it is better not to risk going under an examination.
If the client needs to travel outside Canada before achieving their 730 days and coming back into compliance with the residency obligation, it is important to counsel them that if they apply for a PR card renewal or appear at the Canadian port of entry again, they risk examination and they may not be so lucky next time around.