When a person who has been lawfully admitted to Canada for permanent residence and has within the four years immediately preceding the date of application, accumulated at least three years of residence in Canada, he may make an application for Canadian Citizenship.
Section 5(1)(c) of Canada's Citizenship Act also provides for the additional requirement that since admission as a permanent resident, such person has not ceased to be a permanent resident pursuant to section 24 of the Immigration Act.
What is of concern for many would be applicants, is whether actual physical presence within the country is needed during the whole 1095 days, to fulfill the three year residence requirement for Canadian citizenship purposes.
We have previously opined that persons in possession of a returning resident permit are generally able to refute the presumption created by section 24(2) of the Immigration Act which provides that where a permanent resident is outside Canada for more than 183 days in any 12 month period, that person shall be deemed to have abandoned Canada as his or her place of permanent residence: RETURNING RESIDENT PERMIT - A FALSE SENSE OF SECURITY.
However as numerous applicants for Canadian citizenship have experienced in the recent past, maintaining Canadian permanent resident status for a three year period, does not necessarily imply that the requirements for Canadian Citizenship will be satisfied.
It has long been established in the Canadian citizenship field, that physical presence is not essential provided that the landed immigrant has established and maintained throughout the three year period in question, a "pied-…-terre" in Canada and has the clear intention to live in this country. Applicants who had in mind and fact, settled into, maintained or centralized their ordinary mode of living in Canada could be determined to have fulfilled the citizenship residence requirements with as little as 79 days of physical presence in Canada during the relevant four year period: Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.).
Indeed, this liberal application of the Citizenship Act is often followed by citizenship judge's who opt for a flexible interpretation of the Act to account for justified absences from Canada. In order to ascertain whether an applicant under this approach, has centralized his or her mode of existence in Canada, a number of issues are examined by the judge, including:
- Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship;
- Where are the applicant's immediate family and dependants resident;
- Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country;
- What is the extent of the physical absences;
- Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad;
- What is the quality of the connection with Canada: is it more substantial than that which exists with any other country.
This latter issue is usually examined from the perspective of the indicia of applicant's ties to Canada. To avail the benefits of this approach, applicants are encouraged to maintain Canadian bank accounts, magazine subscriptions, Medicare cards, lodgings, furniture, driver licenses, bank cards, and enroll their children in Canadian schools.
Applicant's should be cautioned however, against blindly conforming to such "residence and citizenship" planning advice, as a number of decisions have emanated from the Courts over the years which evince a strict statutory construction of the Citizenship Act requiring persons who have been "in residence" in Canada for three years during the previous four.
Recent decisions have required that applicants must "throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves": Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259, 62 F.T.R. 122. This happens according to recent rulings from the Federal Court of Canada, by "rubbing elbows", with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years.
In accord with rulings of late, applicants who elect to file applications prior to four years of residence in Canada, may be hard pressed to argue for a liberal application of the residency rule.
In most unsuccessful citizenship applications however, applicants are encouraged to re apply once the residence criteria of section 5(1)(c) of the Citizenship Act have been met.
The government is currently preparing legislation towards the implementation of a New Citizenship Act. This commitment stems in part from the findings of the Standing Committee on Citizenship and Immigration which were submitted to the Minister in June 1994. The most significant change to the citizenship process is the planned elimination of citizenship judges and the proposed implementation of a new administrative process.
