Am I still a PR?

[desperatepr]

I became a landed immigrant and thus permanent resident in Canada in May 1993. I then left Canada later in Nov 1995. I have never applied to renounce my PR residency.

I then came back to Canada in June 2014. I came back to Canada by air without a PR Card. I told the Custom Officer at the airport purpose of my visit is personal travel. They didn’t know I have a landed paper nor my residency.

I stayed and have never left the country since then. I have been working for a full time job till now. Filed tax returns and paid tax for the years 2015 & 2016.

I have never received any warning or notification regarding my residency while I was away from Canada nor returned to Canada.

Questions:

1. Do I still maintain the permanent resident status? Or how can I find out if I am still a PR?

2. Am I eligible to apply immigration for my wife and 2 children of 18 and 9 years age?

3. I do not plan to travel away or leave Canada. Do I need to apply for a permanent resident card?

thank you,

[SettlementOrgMod]

Hello,

Thank you for your question. I understand that this situation can be confusing.

We can appreciate that you would be concerned about this.

As you may already know, a person does not lose their permanent resident status until a final determination has been made.
This means that your PR status needs to be formally removed. You can find some information on the Immigration, Refugees and Citizenship Canada (IRCC) website, Here is an excerpt,

Losing your permanent resident status does not happen automatically. You cannot lose your permanent resident status simply by living outside of Canada long enough that you don’t meet the residency requirement. Unless you have gone through an official process, you have not lost or given up your permanent resident status, even though you may not be eligible to return to Canada as a permanent resident.
You may lose your permanent resident status if:

• an adjudicator determines that you are no longer a permanent resident following an inquiry; or- a visa officer determines you do not meet the required residency when you apply for apermanent resident travel document or temporary resident travel document.
  You may lose your permanent resident status in one of the ways described above if:

• you do not live in Canada for two out of five years;- you are convicted of a serious crime and told to leave Canada; or- you become a Canadian citizen.
  You do not lose your permanent resident status if your PR card expires.

Additionally, according to the Citizenship and Immigration Canada (CIC) ENF 23 - Loss of Permanent Resident Status manual,

It is important to note that a permanent resident does not lose their status under A46(1)(b) until there is a final determination of the decision made outside Canada that they have failed to comply with the residency obligation under A28.

Permanent residents are not finally determined to have lost their permanent resident status until the right of appeal has been exhausted.

It also states in relation to the process of loss of permanent residency,

5. Departmental Policy

When an officer believes a permanent resident has failed to comply with their A28 residency obligation, then that officer should report the permanent resident under the provisions of A44(1) and recommend the issuing of a departure order.

The form Questionnaire: Determination of Permanent Resident Status (IMM 5511B) has been developed specifically to assist officers in making decisions regarding the permanent residency obligation, keeping in mind that the questionnaire alone is not sufficient to determine compliance with the residency obligation, and a detailed interview including examining humanitarian and compassionate criteria under A28(2)(c) is needed.

Furthermore, the officer cannot seize the person’s documents (such as the IMM 1000, Immigrant Visa and Record of Landing and the IMM 5292B, for example) despite writing an A44(1) report and issuing a removal order unless the officer believes there are reasonable grounds to do so in accordance with A140. The rationale behind this is that the person has a right to appeal the removal order and, until final determination of status, they remain a permanent resident and are the lawful owner of said documents.

Additionally, we have previously received some information from one of our legal researchers related to being in Canada after not meeting the residency requirements.

According to their research, the five-year time frame set out in the Refugee and Immigrant Protection Act is not static. Rather it is a moveable window that is dependent on the time at which a visa officer examines your situation. Therefore, if you cannot fulfill the two-year (730 day) requirement for the five-year time frame starting from when you became a permanent resident, you should remain in Canada until you can satisfy the requirement for another five-year time frame.

The IRCC’s Permanent Residency Status Determination Manual states:

For persons who have been permanent residents of Canada for more than five years, the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office. A28(2)(b)(ii) precludes a visa officer from examining any period other than the most recent five-year period immediately before the date of receipt of the application.

Since the officer cannot choose any five-year time period for consideration, but must always assess the most recent five-year time period (the one immediately preceding examination), you may still have the opportunity to satisfy the two-year “in Canada” requirement.

Regarding your question about applying for a PR card, you are not required to have a PR card in order to remain a permanent resident. It is required to re-enter Canada. Additionally, as you may already know, the PR card’s expiry date has no correlation between whether or not you have met the residency requirements.

We suggest that you speak to a Lawyer who is familiar with Canadian immigration issues for additional information regarding your situation.

I hope this information is helpful. Please let us know if you have further questions and if there is any follow up to your question/situation.

=====
Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org

[desperatepr]

Thank you very much. The information provided above is very helpful.

I understand a PR can sponsor his/her spouse under ‘In Canada’ class which means the spouse can stay in Canada as visitor while the application is in process. I have the following questions:

Can the sponsored spouse leave Canada to travel while waiting?

Can a dependent child be sponsored to immigrate under ‘In Canada’ class together with the sponsored parent? I can’t find any information about this from the CIC website. If yes, can he/she go school while waiting?

[SettlementOrgMod]

Hello,

Thank you for sharing your additional question with us.

Regarding your question,

Can the sponsored spouse leave Canada to travel while waiting?

You can find some detailed information regarding this on the Immigration, Refugees and Citizenship Canada (IRCC) website in the Can I leave Canada while IRCC processes my application for permanent residence? section. Here is an excerpt,

If a spouse or partner sponsored you under the Spouse or Common-law Partner in Canada (SCLPC) class while you were living in Canada:You may want to re-apply to be sponsored from outside Canada as a member of the Family class if:

• you do not plan to live in Canada with your sponsor while we process your application- you left and cannot return to Canada
  If you need to re-apply from outside Canada to be sponsored as a member of the Family class, you should:

• withdraw your SCLPC application, and- submit a new application

Regarding your second question,

Can a dependent child be sponsored to immigrate under ‘In Canada’ class together with the sponsored parent?

Yes, you can find some additional information in our How do I sponsor a spouse, common-law partner or dependent child from inside Canada? article.

Regarding your last question,

If yes, can he/she go school while waiting?

Yes, the dependent child should be eligible to go to school. You may want to contact the school board directly for information regarding the requirements.

As an example, you can find some information regarding the Toronto District School Board’s admission eligibility requirements in their Admission Eligibility Requirements - Detailed Residency Status Requirements (Appendix D) document.

This document shows what are the required documents and registration guidelines for Students who have come to Canada because their parent or guardian is married to a permanent resident.

I hope this information is helpful. Please let us know if you have further questions and if there is any follow up to your question/situation.

=====
Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org