The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian P. Smeenk.
The topic of Canadian citizenship has been in the news. Following an investigation by police and the border agency, the Canadian Immigration Minister announced on September 10, 2012 that Immigration and Citizenship Canada (“CIC”) is proceeding to revoke the citizenship of 3,100 persons who obtained it by fraud. The discovery of this vast fraud has resulted in a dramatic increase of the level of scrutiny of current applications. This will also no doubt affect future applications. There will be an impact not only on fraudulent applicants but also on honest ones.
The basic requirement to become a Canadian citizen is to have lived in Canada as a permanent resident for a period of three years (1,095 days) in the four years preceding the application. It is also possible to count as days present in Canada those spent in Canada before becoming a permanent resident (during the prescribed four-year period), as a worker or a student for instance, although these days are only counted by half.
[Note that the laws for acquiring citizenship are different from those for maintaining permanent residence status (described in our article of May 25, 2011).]
The interpretation of the 1,095-day residency rule for citizenship has been the object of considerable debate and case-law. Basically, there are three approaches. They correspond to three different decisions of the Federal Court. First, there is the strict approach. Under this approach, residency means physical presence in Canada for the required number of days. No other consideration will be taken into account. The other two approaches follow a less stringent reading of the residency requirement. These two approaches recognize that a person can be resident in Canada, even while temporarily absent, as long as he maintains a strong attachment to Canada or has centralized his mode of existence in Canada.
If the person has not been physically present, an application’s chance of approval has depended on which of these approaches is adopted by the deciding citizenship judge. Lately, there has been a clear tendency of citizenship judges to adopt the strict approach.
In addition, until relatively recently there was an unwritten administrative practice according to which applicants who had been in Canada for 1,000 days (instead of 1,095 days) during the prescribed four-year period would be accepted. Also, there was no need to provide proof of presence in Canada. The citizenship judge could investigate further when he or she suspected that the application contained misrepresentations. But, by and large, the citizenship procedure required much less paper work than an application for permanent residence.
Unfortunately, as a result of abuses by unscrupulous candidates who wanted a Canadian passport without making any contribution to Canadian society, there is now a hardening of the way the rules are administered. Nowadays, a very high proportion of applicants receive from CIC the “residence questionnaire” which requests all kinds of information and supporting documents concerning life in Canada since the applicant’s arrival (and not only the last four years). The unwritten rule of one thousand days is no longer applied. Any applicant who has been in Canada for less than 1,095 days will go through the residence questionnaire scrutiny.
The result is that the chances of success of a citizenship application submitted by a person who has not physically been in Canada for the necessary number of days (even if his life has been centered in Canada) have become very low. Those permanent residents who intend to apply for citizenship and who constantly travel out of Canada for business purposes should keep proof of all their trips abroad (and proof of presence in Canada). They will most likely be required to fully document their presence in Canada.