PR Expired-Child is Canadian Citizen

[malaverma]

Hi,

My wife and myself had Canadian PR which expired in year 2008, while my citizenship was under processing I had to return back to India due to Health condition of my father as he was paralysed and bed ridden.

Since we had no one to take care of him we had to be in India for couple of years. My father passed away recently and once again we would like to settle back in Canada.

My daughter is Canadian born and is aged 15 years, we would like to come back to Canada and settle there with my family.

Kindly suggest the process and guidelines’ to get our PR reinstated and settle in Canada.

[SettlementOrgMod]

Hello,

Thank you for sharing your question and situation with us.

First of all, we are sorry to hear that your father has passed away. Please accept our condolences.

We can appreciate that you would be concerned about this situation and would be interested in finding out what your options are.

Regarding what you have stated about permanent residency being expired, it is important to note that in terms of loss of permanent residency, a person does not lose it 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.

According to the Immigration, Refugees and Citizenship Canada (IRCC) 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), they may still have the opportunity to satisfy the two-year “in Canada” requirement.

As you may already know, a PR card or a Permanent Resident Travel Document (PRTD) is required to re-enter Canada.

We suggest that it is important and probably best that you speak to a Lawyer who is familiar with Canadian immigration issues for additional information regarding you and your family’s situation and before you all apply for a Permanent Resident Travel Document (PRTD) or before you try to renew PR cards.

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, CCRS, CCRS-DC
Settlement.Org

[anil.jn]

Hello Sir/Madam,

We are similar case that child is Canadian citizen (15 year now) and parents were permanent resident in 2005/2006. I have stayed in Canada for 5 years on work permit (4 year) and later on PR (1 year). Incidentally we have to leave Canada due to personal reasons.

After 13 years, I have got job offer from Canadian company and they want me to migrate to Canada for project. I am not sure if I have to apply for work permit or travel on PRTD. Will I be allowed to enter Canada again?

Since my permanent resident status is not valid, can I apply for fresh PR application? Is it possible for Canadian minor to sponsor parent for immigration?