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Member of the Law Society of Upper Canada and the Canadian Bar Association


In this continuing series, we will look at various recent issues and recent events concerning immigration law.

Visitor Visas:
Canadian Immigration has announced that they are exploring requiring high-risk visitors to post a bond in order to be admitted entry to Canada. This system is currently in use in England. Persons who cannot show a "significant attachment to their country of origin" would be required to post a cash bond before obtaining a visa. The bond would be forfeited if the person later makes a refugee claim or stays beyond the visa limit. The amount of the cash bond has not been stated but it is likely to be determined on a case by case basis.

Over 560,000 visitor visas were issued last year. Although current legislation allows for the posting of a bond, the measure is very rarely used.

Departure Controls:
On November 30, 1999, some opposition party members in Parliament proposed that anyone entering or leaving Canada should be required to check in at the border. The goal would be to keep track of foreigners who cannot prove their identity or whom police authorities are searching. The Immigration Department quickly responded that it would create a whole new bureaucracy that is unwanted. Immigration also quickly noted that the proposal, if implemented, would have the effect of keeping track of every Canadian's comings and goings.

It is very unlikely that this proposal will receive further serious consideration in Parliament.

On November 25, 1999, a Bill for a new Citizenship Act was introduced in parliament. It claims to reflect the views of Canadians gathered over several years. It would be the first major revision of the Citizenship Act in twenty years.

The Bill establishes more precise terms of residence, requiring applicants to be physically present in Canada for three years of the six years prior the application is made for citizenship. This allows for flexibility for those persons who must be out of Canada for extended periods of time. The Bill also promises to establish more consistent and objective decision-making. While putting a greater emphasis on physical residence in Canada, the new legislation also provides greater time, three out of six years, in order to meet the requirements, rather than the current three out of four years set out in the current legislation. Although the current Act does not specifically emphasize physical residence and although the courts have interpreted the current Act as allowing "constructive residence", in practice, the courts have been over the recent past tending more toward a stricter interpretation of "physical residence".

The Bill also introduces limits on the number of generations that citizenship can be passed on to children born abroad. These limits do not exist in current legislation. If a person is born outside of Canada to a Canadian, they will automatically have Canadian citizenship. If that person stays abroad and has a child also born outside of Canada, the child would have to apply to retain citizenship and meet the residency requirement before the age of 28.

The Bill also allows the Minister of Immigration to annul a person's citizenship if it was obtained through a false identity, or if that person had been prohibited for criminal activities under Canadian citizenship law.

The Bill would also allow for quicker processing of applications by making the decision making process simpler.

The Bill would permit faster and more effective revision of decisions. The Minister will have the authority to review and overturn a refusal. Currently, a person who has been refused must apply through the courts. The new legislation would still allow the person to seek court review.

The Bill sets out a new Oath of Citizenship that more clearly expresses loyalty to Canada.

The Bill would permit a foreign child adopted by a Canadian citizen to receive citizenship abroad without having to first become a permanent resident. This is a major change from current legislation wherein there is a distinction made between children born abroad to a Canadian and a foreign child adopted by a Canadian. As noted above, a child born abroad to a Canadian would receive automatic citizenship.

The new legislation would still allow Canadian citizens to be citizens of other countries.

The Bill would still require applicants for Canadian citizenship to demonstrate a sufficient knowledge of Canada and of one or its two official languages before being granted citizenship.

In summary the new legislation would reflect what Canadians believe citizenship should mean, promote loyalty to Canada, promote respect for our rights and freedoms, and celebrate what it means to be a citizen of Canada.

Final Note:
In many cases, persons seeking entry to Canada for a temporary purpose, apply themselves, especially for a visitor visa. However for cases, where Canadian immigration rejects the applicant, the second attempt is much more difficult. If the recent announcement requiring visitor visa applicants put up bonds is applied, then there may be an opportunity created for those who would normally be refused to be accepted providing they provide the necessary cash bond requested by immigration. Where the application is less than straightforward, an applicant seeking the safest and least risky approach for applying for a visitor visa, should seek professional assistance from the start.

Similarly with respect to citizenship applications, in order to follow the safest and least risky approach for applying for citizenship, an applicant should first seek professional assistance from the start.

Obtaining legal advice is very important, especially in complicated situations, to better lay the foundation for a successful application, especially in the current environment where Immigration authorities have become stricter in applying the temporary visa and citizenship criteria rules and regulations. Further, with respect to temporary visas, given the current trend toward refusing more and more temporary authorizations, there is a greater need to speak to a qualified immigration lawyer about the risks and pitfalls. As always, the prospective temporary visa applicant, should seek proper and honest legal advice in order that the prospective visa applicant does not lose the right to obtain the sought after visa.

For further information please contact one of us at Moses & Associates.

(Since the issues and matters in reality are quite complex, it is recommended that legal or other appropriate professional advice should be sought before acting upon any of the information contained therein. Although every reasonable effort has been made to ensure the accuracy of the information contained in this article, no individual or organization involved in either the preparation or distribution of this article accepts any contractual, tortious, or any other form of liability for its contents or for any consequences arising from its use.)

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