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The Interpretation of the Residency Requirement for Canadian Citizenship

The Interpretation of the Residency Requirement for Canadian Citizenship

If you have been a permanent resident living in Canada for at least two years, then you may be entitled to become a Canadian citizen by naturalization. Find out more.

A person who fulfills the residency criteria of the Citizenship Act and the Citizenship Regulations can apply for Canadian citizenship. Yet, jurisprudence with conflicting interpretations of the physical presence requirement has turned this criterion into a truly complex matter.

According to statutory provisions, adult permanent residents must have lived in Canada for at least three years out of the five years immediately before they applied for citizenship. The jurisprudence of the Federal Court of Canada (“the Court”) has held that residence must first be established, and then maintained. Since the statute does not define the verb “reside”, the Court is split concerning the legal test to be met to satisfy the residency requirement. To date, three tests for residency exist in common law:

1. Strict calculation of time

The applicants must prove their physical presence in Canada for 1095 days.

2. Centralized mode of existence

The applicants need to demonstrate that they have a “place of abode to a sufficient extent”.

3. Substantial connection

The applicants must establish the length and quality of time spent in Canada.

If the citizenship officers or judges apply one of the three tests, the Court will not interfere with their decision. In short, when applying for the second and third tests, applicants do not need to be in Canada for the entire three years if they have centralized their mode of living in Canada or their connection to Canada is strong. While the Court has largely applied these two qualitative tests, some judges consider the quantitative test key to citizenship.

Quantitative Test Explained

To determine whether you are eligible to obtain Canadian citizenship status, you must establish that you have become sufficiently “Canadianized” by “rubbing elbows” with Canadians in a variety of settings for at least three years of residence in Canada, within five years before the date of your application.

In Pourghasemi (Re) (FCTD), [1993] FCJ No 232, 19 Imm LR (2d) 259, the Court found at paragraph 3 that all potential citizens should have the chance to become “Canadianized” pursuant to paragraph 5(1)(c) of the Citizenship Act, RSC 1985, c C-29 (“the Act”).

It is clear that the purpose of paragraph 5(1)(c) is to insure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become, "Canadianized". This happens 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. One can observe Canadian society for all its virtues, decadence, values, dangers, and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all.

Briefly, you shall comply with the provision to fulfill the residency element as enacted by Parliament for a clear purpose.

Qualitative Test Explained

Nevertheless, jurisprudence has also held that the residency factor does not require the applicant to be physically present in Canada for the whole three years if the applicant lives "regularly, normally or customarily" in Canada. Madam Justice Reed in Koo (Re) (TD), [1992] FCJ No 1107 formulated the test as follows:

The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant “regularly, normally or customarily lives”. Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are:

(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 (and extended family) 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—if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?

(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?

In summary, the quality of the connection with Canada must demonstrate a priority in your life when applying this test.

Calculation of the Three Years

Proceeding to the day-counting exercise mandated by the strict calculation of time test in accordance with subparagraph 5(1)(c)(i) and subsection 5(1.001) of the Act, you must have accumulated a minimum of 1,095 days (three years) of physical presence in Canada to qualify.

The three years of residence are calculated as follows: Time spent in Canada as a temporary resident count for a half-day credit, up to a maximum of 365 days for every day of physical presence, and a permanent resident accumulates one day for every day of physical presence. The days in prison, on parole or probation are excluded. For example, the applicant came to Canada as a temporary resident (TR) on June 1, 2016, became a permanent resident (PR) on June 1, 2018, and signed the citizenship application (CIT Appl) on June 1, 2020.

TR Status = June 1, 2016

PR Status = June 1, 2018

CIT Appl = June 1, 2020

TR

1 June 2016 to 31 May 2017 = 365

1 June 2017 to 31 May 2018 = 365

TR = 365 x 2 = 730

Max. TR = 730: 2 = 365

PR

1 June 2018 to 31 May 2019 = 365

1 June 2019 to 31 May 2020 = 366

PR = 365 + 366 = 731

Physical Presence = 365 + 731 = 1096

The applicant has accrued the permitted maximum of 365 days as a temporary resident and 731 days as a permanent resident, in total, 1096 days of physical presence within the five-year period before the date of the citizenship application, and thus meets the residency test.

Evidence

When establishing residency, the burden is on you to provide credible information and documents. Canadian income tax returns can be used to show that you resided in Canada for three years out of the last five years.

Other requirements

Your language and knowledge test results, if you are aged between 18 to 55, ascertain how well you are integrated into Canadian society. You also need to have authentic status documents to prove that you complied with Canadian immigration law as an authorized temporary and permanent resident in the past.

You must not be subject to any prohibitions per sections 20 to 22 of the Act. Moreover, you may not have any unfulfilled conditions on your PR status, nor be under a removal order. In other words, you must pass all clearances: immigration, criminality, and security.

Conclusion

You may apply without meeting the strict calculation of time test, but you must convince the decision-maker that you are eligible to become a new Canadian based on your ties to Canada.

About the author

Katharina Kontaxis[CICC ID: R512662]
KIS Migration Inc. offers Canadian immigration and citizenship consulting services. Its business model of Keeping It Simple is key to success. KIS Migration Inc. assists you on your journey to Canada while making the process easy for you.
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