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

Permanent Residence and Citizenship:

There is always talk among Members of Parliament about tightening the citizenship requirements.

Although the current Citizenship Act does not specifically require 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 years tending toward a stricter interpretation of "physical residence".

Canada has one of the easiest citizenship laws among Western countries. Canada also allows citizens to be hold more than one citizenship and therefore immigrants are often able to retain their prior country citizenship while also obtaining Canadian citizenship.

Under the current Citizenship Act, after three of four years in Canada, one can apply for citizenship. In November 1999, a Bill for a new Citizenship Act was introduced in parliament. It claims to reflect the views of Canadians gathered over several years. The Bill established 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 promised to establish more consistent and objective decision-making. While putting a greater emphasis on physical residence in Canada, the new legislation also provided 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.

The Bill never passed but there were several aspects from the Bill that were put into effect. When the Immigration Act (IA) was replaced by the Immigration and Refugee Protection Act (IRPA) in June 2002, the requirements of a Permanent Resident were tightened. One had to be resident in Canada for at least 2 out of 5 years to maintain Permanent Residence. The test for Citizenship, 3 out of 4 years did not change. The Returning Resident Permit process for permanent residents that had to be outside of Canada was cancelled and the concept of a Permanent Resident Card (also commonly called a Maple Leaf Card) was instituted. The Card would be good for 5 years and could then be renewed. The Card would be needed for travel back to Canada; those without a valid Card could be refused boarding on aircraft flying into Canada. After 5 years the Card could be renewed. However, the permanent resident would have to provide a detailed description of their residence addresses, and work and school histories, over the preceding 5 years as part of the renewal process. Where it was determined that the “residency obligation” was not satisfied, further information would be requested. If still not satisfied, an immigration officer would write a Report seeking to revoke the permanent residence of the applicant for failure to meet the residency obligations required of Permanent Residents under IRPA.

Recently, one positive development has been the amendment of the Citizenship Act to allow 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 prior legislation wherein there is a distinction made between children born abroad to a Canadian and a foreign child adopted by a Canadian. A child born abroad to a Canadian receives automatic citizenship, and a mere application is required by the parent after the child’s birth; the process is simple and quick.

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 renewing Permanent Resident Cards as well as making 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.

Protect yourself. Contact Marvin Moses Law Office now! Obtain competent, experienced, and honest advice!

For further information on immigration to Canada, please contact one of us at Marvin Moses Law Office.

(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.)