Citizenship: Whether physical presence in Canada is required to maintain the residence requirements under the Citizenship Act: Hsu, Re 25 Imm. L.R. (2d) 251 (Fed.T.D.). Appeal from refusal of application for Canadian citizenship.

The appellant arrived in Canada on July 23, 1989 and he established in Montreal, a consulting company with extensive contacts in Hong Kong and Taiwan. He rented an apartment which he shared with his partner and in late 1990, purchased a residential unit in Vancouver. He carried out the various formalistic requirements for establishing residence such as bank accounts, driver’s licenses, income tax reporting, health care insurance, social insurance card, etc. The appellant is divorced and his children are grown-up and reside on the US West Coast.

The facts also indicate that the company performed increasingly well during the three years in question and required appellant’s protracted absences totaling 569 days, primarily for business purposes. The trial judge that upon arrival in Canada in 1989, the appellant had not sufficiently established residence, prior to his first departure and therefore, his absences could not be considered periods of residence in Canada.

On appeal, it was held that even on a liberal and extended meaning of the term “residence”, the appellant failed to meet those requirements. “Canada had little if any connection with the appellant’s endeavor; an important component to qualifying for residence status is thus absent. (…) Being granted landed immigrant status is one step, but qualifying for Canadian citizenship is a different one altogether”.

This decision supports the position that the “strict constructionist” approach is not consistent with a proper interpretation of the Citizenship Act. A liberal application of the residence requirements is desirable where a sufficient connection to Canada is maintained in the form of personal, social or institutional involvements on the part of an applicant.

Citizenship: Banerjee, Re 25 Imm.L.R. (2d) 239 (Fed.T.D.). Whether physical presence in Canada is required to maintain residence requirements under the Citizenship Act.

The applicant obtained landed status on 19 February 1989. He arrived with his two daughters. His wife arrived in May. His mother arrived at a later date. Following the arrival of the family, they lived initially with his paternal uncle and thereafter in their own premises on the Montreal West Island. The applicant secured insurance numbers, medical care cards, obtained a Quebec driver’s license and established contact with the Board of Trade. In the course of the next three years, the applicant was absent from Canada 866 days, where he earned his livelihood as an international business consultant in the field of chemicals. As such he traveled extensively in Europe, the Middle East and Far East. His clients and his market are overseas. He owned no other real property elsewhere.

In overruling the Citizenship Judge, the Federal Court of Appeal concluded that applicant had effectively established residence prior to departing; the quality of attachment to Canada was determinative and that Canada was not being used by applicant as a facility of convenience. This decision supports a liberal application of the residence requirements under the Citizenship Act.

Where a person has maintained residence in Canada as a permanent resident for three years in the 4 year period immediately preceding the date of their application, they may be eligible 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 46 of the Immigration and Refugee Protection Act.

What is of concern to many would be applicants is whether this three year residency requires actual physical presence in Canada for 1095 days in the 4 years preceding an application for Canadian Citizenship.

The decision on whether the 3 year requirement is met is rendered by a citizenship judge, who will apply one of three tests developed by Canadian courts to determine residence. These tests differ substantially from one another, causing significant uncertainty for applicants who have not been physically present in Canada for a total of 1095 days during the relevant period.

The first test is known as the “Strict Physical Presence” test and was elaborated by the Federal Court in Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259, 62 F.T.R. 122. It is a strict application of the residency requirement whereby the applicant must demonstrate actual physical presence in Canada for 1095 days during the 4 year period immediately preceding the date of application.

The second test is a more liberal interpretation articulated in Re: Papadogiorgakis [1978] 2 F.C. 208 (TD). Under this test, residency is determined by “[…] the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.” Physical presence in Canada is not essential provided that the landed immigrant has established and maintained throughout the three year period in question a “pied-à-terre” in Canada and has the clear intention to live in this country. Under this test, an applicant for citizenship has been deemed to meet the residency requirement despite having spent only 79 days in the country during the 4 years prior to applying for citizenship.

The third test outlined in Re Koo [1993] 1 F.C. 286, is a qualitative analysis of the applicant’s ties to Canada and is the one most often followed by citizenship judges. In order to ascertain whether an applicant has centralized his or her mode of existence in Canada, a number of issues are examined by the judge, including:

1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship;
2. Where are the applicant’s immediate family and dependants resident;
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country;
4. What is the extent of the physical absences;
5. 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;
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country.

Recent attempts by the Federal Court to reconcile the three tests have remained unsuccessful. At present, case law requires that a citizenship judge should choose between any of the three residency tests in evaluating a candidacy for citizenship. A separate line of jurisprudence requires that the citizenship judge apply the qualitative analysis of RE: Koo in every case where the strict physical presence test is not met. The Federal Court has, however, consistently held that it must appear from the citizenship judge’s written reasons for granting or refusing citizenship, which of the above three residency tests was applied. 

Owing to the unpredictable nature of Citizenship applications, it remains to be seen whether Parliament will intervene to settle this diverging interpretation of the residency requirement. Citizenship applicants who have not been physically present in Canada for the full 1095 days during the reference period and wish to bolster their chances of success are well advised to ensure their application identifies some or all of the six factors of analysis in RE: Koo. Failed applicants may re-apply again when their circumstances regarding physical presence are more favourable during a reference period.

Readers are invited to contact [email protected] for additional insight into the modalities for a successful application.

A modification to the Canadian Citizenship Act effective December 23, 2007 enables children adopted abroad by a Canadian citizen to become a Canadian citizen and obtain a Canadian passport without the requirement of first becoming a permanent resident under the immigration sponsorship process.

To qualify under this new streamlined process on behalf of an adoptee it must be shown that:

• at least one adoptive parent is, or was, a Canadian citizen when the adoption took place
• the adoption severs (or severed) all ties with the adopted person’s legal parents
• the adoption was or will be completed outside Canada.
• the adoption must conform to the laws of the province or the territory of residence of the adoptive parents

The adopted person does not meet the requirements for the citizenship process if:

• neither parent was a Canadian citizen when the adoption took place
• the adoption took place before February 15, 1977
• the adoption did not fully sever all ties with the child’s legal parents
• the adoption will be completed in Canada, or
• a probationary period is to be completed in Canada before a final adoption order is issued from the child’s birth country.

Previously, a Canadian citizen adopting a child born abroad would first apply to sponsor the child to come to Canada, then apply for a permanent resident visa, then apply for citizenship. Under the new rules, Canadian citizens are permitted to apply for their adopted child’s citizenship abroad and avoid the sponsorship and permanent resident application process. The new streamlined process clearly saves time and entails less paperwork as all of the previous steps are merged into one. Once the child has been granted Canadian citizenship, the parent will be able to apply for a Canadian passport through the appropriate Canadian government office outside Canada.

It is important to note that each international adoption experience will still entail its own unique anomalies as some adopted children will still be required to go through the immigration process. This would be the case for example if the adoption is to be completed in Canada or falls under a guardianship arrangement rather than a full adoption.

Interested readers with questions are invited to contact Attorney Colin R. Singer, (Toll Free in North America 1-888-817-2011) or by email –[email protected] to discuss any issue related to the foregoing.