Not met 730 days for PR Renewal - Options? 

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1. Should I surrender my PR? If yes, then should I do it in Canada or India?


2. Should I apply for PR on H&C grounds?
What are my chances?

3. Can my wife re-apply for my PR if I surrender?

A44(1) report and voluntary relinquishment

Where a person does not meet the residency obligation, an A44(1) report should be prepared [A41(b) for A28 cases]. Once a report is prepared, the provisions of R62(1)(a) take effect so that any time spent in Canada subsequent to the report will not count as days towards the residency obligation under A28(2) in the event the person rescinds their declaration within 30 days.

Provided the person has made it clear from the beginning and throughout the examination that they are interested in temporary resident status only and that they truly and voluntarily wish to relinquish status, the officer may allow the person to complete the Declaration: Voluntary Relinquishment of Permanent Resident Status/Residency Obligation Not Met (IMM 5538B). A copy of the IMM 5538B should be sent to the Query Response Centre (QRC) to be stored on microfiche. This procedure is not to be used in any situation where the person indicates at any time a desire to be considered a permanent resident, even if they subsequently maintain they no
longer wish to be a permanent resident.

The officer must first determine whether the person has fulfilled the residency obligation [A28]. Once the officer has established that the person does not meet the residency obligation, the officer allows the person to make submissions on H&C considerations, which may lead the officer to determine that the person remains a permanent resident despite non-compliance with the residency obligation. If the person declines to produce any evidence of compliance, does not wish to make submissions on H&C grounds at the time of the examination, or if their submissions are not sufficient to overcome the officer’s decision that they have not fulfilled the residency obligation, then the officer may allow the person to sign a voluntary relinquishment.

The officer must personally provide counselling to the person on the significance of the declaration and should ensure that the person fully comprehends the content of the declaration.

The officer should further counsel the person to ensure that they understand that if they withdraw the declaration within 30 days, a departure order may be issued and they would have a right to appeal that order.

During counselling, the officer must provide, in writing, the full CIC address where the person is to send the notice to withdraw relinquishment of permanent resident status. The officer must clearly note on file that the person did not wish to produce evidence or submissions, or produced insufficient evidence or submissions to allow the officer to conclude that the person satisfies A28, despite non-compliance with residency obligations. Details of the evaluation of humanitarian and compassionate grounds can be found in section 7.7 above.

Once the A44(1) report and the IMM 5538B are completed, they must be given to the Minister’s delegate for review. The Minister’s delegate may either dispose of the A44(1) report at that time by coding the disposition “14” (no further action) or, alternatively, the Minister’s delegate may hold the report in abeyance for final disposition for a period of 37 days (30 days during which the person may withdraw the IMM 5538B declaration, plus seven days for delivery). If the 37 days pass without a withdrawal, the report may then be disposed of with code 14 (no further action).
In either case, the Minister’s delegate must keep in mind that if the person withdraws their declaration relinquishing status, a removal order should be issued. Therefore, the Minister’s delegate’s notes on file should clearly demonstrate that the person was duly informed that a removal order could be issued against them in the event of a determination of permanent residency status due to withdrawal of the declaration of relinquishment. Essentially, the Minister’s delegate should record in their notes that it is their decision that, based on the information available at the time of the review of the A44(1) report, such an order is to be issued if the person
withdraws their declaration within the 30 days during which this is allowed.

7.7. Humanitarian and compassionate determinations

A28 provisions require the consideration of H&C factors before making a determination that may lead to a loss of permanent resident status.
Specifically, A28(2)(c) provides that when an officer determines that H&C considerations relating to a permanent resident justify the retention of permanent resident status, then such a determination will overcome any breach of the residency obligation made before the determination.

Accordingly, each decision-maker involved in a residency obligation determination case should, as part of the decision-making process, assess any H&C factors brought to their attention to determine whether such factors justify retention of permanent resident status, notwithstanding a breach of A28.

Note: The best interests of a child directly affected by the determination must also be considered when assessing H&C factors and, as a result, may justify the retention of permanent resident status.

Officers should consider whether sufficient H&C factors have been brought to their attention to justify the retention of permanent resident status before making a decision that there has been a failure to comply with the residency obligation. Officers should remember that the onus is on the permanent resident to satisfy an officer that there are grounds to justify retention of status.

Officers are not required to satisfy the permanent resident that such grounds do not exist. Officers should consider the objectives of IRPA and that A28(2)(c) exists to allow flexibility for approving deserving cases not anticipated in the legislation.