Residency: tests, proof, practice, policy

Residency requirement: tests, proof, practice, policy, & jurisprudence:

This is an effort to, in effect, divide the various threads of discussion in the RQ discussions thread, to create a separate thread to more specifically address the vagaries besieging the assessment and application of the "residency" requirement. To my thinking, the RQ discussions thread should remain focused on discussions directly related to the RQ process; that is an important, oft times informative discussion. Yes, residency tests, proof, and the related jurisprudence are all relevant to that process, but given the complexities involved, not to mention the circumstance that, as one Federal Judge recently put it, the "law in this area is in a very unsatisfactory state," it tends to be more involved, sometimes convoluted, and consequently discussions about this side of things tends to disrupt or distract from those important discussions directly related to the RQ process itself. At the very least, the RQ discussions thread has been fragmented of late, the discussions relevant to particular questions regarding the RQ process interrupted by discussions about the residency requirement itself (and vice cersa), resulting in unnecessarily breaking up the continuity of some discussions onto separate pages.

I am intensely interested in all sides of this, both the more esoteric discussions as well as those about the process of RQ itself. I have a selfish motive: since I am self-employed and my clientele are entirely outside Canada, in my home country (well, to my thinking what was previously my home country since I really want Canada to be my home country -- I am not an "ex-pat" for the sake of mere convenience), I worry about RQ and that whole "Canadianized" subtext undermining my application for citizenship. I could be paranoid, overly cautious, or merely judiciously cautious, but that does not matter because I am, at the least, an aficionado of the law (and, well, I am also actually a jurist, as in law educated and trained, for a significant time was an American trial attorney, and I do continue to earn my living by researching, analyzing, and writing about the law, albeit American law), so in addition to my self-interest I quite simply love this sort of stuff.

Moreover, it appears to me that as many have said (though some with a bit more rancor, or at least more critically than me), CIC fails to adequately inform PRs about the nuances and pitfalls that may entrap applicants for citizenship. I hope this site offers the sort of information and insight that will help legitimate applicants to avoid the pitfalls and move through the process less painfully, that it helps to make up some for the failure by CIC to fully inform PRs looking to become citizens.

Enough preamble stuff.

Some meat and potatoes, or beans and rice if one prefers, starting with the basics:

The residency requirement is set forth in section 5(1)(c) of the Citizenship Act.

It is reiterated in a great many Federal Court cases, including some recent and notable cases like that of Emmanuel Manas, in which CIC appealed CJ's decision to grant citizenship, and that of Laily Sarvarian, which affirmed a denial of citizenship which really does not make sense if Koo has any application at all, and particularly in light of other decisions like that in the case of Alexander Cardin in which the Federal Judge said that a citizenship judge could choose to apply any of the three tests and then, in a direct (but in my view fair) contradiction of that, said it was unreasonable to apply the Pourghasemi test (requiring 1095 days of actual, physical presence).

A citizenship applicant must use either the residence calculator, or submit form CIT 0407, which is titled "How to Calculate Residence" . (I suggest doing both and if the results differ, figuring out why, and then wait a bit to create a margin before actually applying. I will use the form not the online calculator when I finally do make my application since I want to disclose my day trips upfront, leaving little or no room for misinterpretation.)

Moreover, the CIC FAQs also provide additional information regarding the "rules of calculation" and the effect of absences and so on.

A lot of good information is provided in the operational manual CP 5 "Residence", particularly in section 5 (which begins on page 11 of the manual) dealing with "policy for persons who have absences from Canada," but also (perhaps more so) in the operational bulletin addressing the assessment of declared residence, which is included in the manual as Appendix A (even though the bulletin itself is expired), and in which numerous factors which may constitute "indications" that the "declared residence may be in question" are set out. The latter is a good resource for anyone trying to assess their risk of facing RQ.

Oddly enough, bizarrely even, in the manual CIC quotes a judge who describes the process of gaining citizenship as "akin to a lottery." I do not think it is anywhere near that bad, but a comparison of the Laily Sarvarian case with the Alexander Cardin case, particularly in contrast to a case like that of HERIBERT WALTHER SEIFFERT (applicant who was well short of the 1095 days threshold, by 772 days at minimum, as in time outside Canada twice the time in Canada, but who was, as timbit_TO put it earlier, "another beautiful person" and was granted citizenship) is pretty strong evidence that the system is not fairly or equally treating everyone who applies for citizenship. (At some point one would think a mandamus case would be appropriate.)

In addition to proposed legislation such as that cited by Timbit, Bill C-37, there have been many relevant cases referred in much of the discussion in the RQ discussions thread, including, for example, the Razieh Jeizan case in which CIC was the appellant and the grant of citizenship was in effect reversed on appeal, discussed at by timbit_TO, myself, and others along with related questions, and the Raslan case where the applicant's lack of credibility undermined the case. In addition there are those cases in which the Koo test is clearly articulated, or distinguished, such as the Muhammad Salim case, as well as the Mcilroy case. Just as an example of another successful appeal of a grant of citizenship by the CIC, see the AREEJ HUSSEIN ELZUBAIR case, in which the applicant's "apparent misrepresentation[s]" regarding absences was grounds for the Federal Judge to grant an appeal of a CJ's grant of citizenship.      

In any event, again, it is my hope we can bring here and continue here that part of "RQ discussions" which are really about the residency requirement itself, what constitutes proof meeting the residency requirement, what are the tests for residency, and some of the attendant jurisprudence struggling to reconcile the disparities inherent in the application of the Pourghasemi test (basically a strict application requiring 1095 days of actual, physical presence) versus the principles articulated in Koo which are also articulated in Section 5 of CP 5 "Residence" where it discusses residency based largely on where an individual has centralized their life.

In the meantime, as a follow-up to an earlier post of mine in which I discussed the residency requirement at stake in the Chicago mayoral election, I predicted:

As a side note: I expect the majority opinion in the Chicago case to be rejected within a week or so by the state's Supreme Court ...

And, indeed, yesterday the Illinois State Supreme Court resoundingly rejected that decision. This opinion likewise is informative and illuminating relative to discussions about residency requirements in law generally (but as I said before, this is of interest relative to residency requirements generally, NOT at all directly relevant to the Canadian citizenship residency requirement), but it is really what two of the justices say in a concurring opinion that is most interesting in the context of our wrestling with the Canadian citizenship residency requirement, in which they empasize that the legal term “residence” does not “have a fixed and constant meaning,” that the term is ambiguous, or, as they quote from one case, "residence is 'one of the most nebulous terms in the legal dictionary,'"
and, from another case, that the words ‘resident’ and ‘residence’ have no precise legal meaning although they are favorite words of legislators. They further nod to numerous other contexts in which a residency requirement arises.

So the fact that Canadian citizenship law is not clearly settled on what constitutes "residence" or "residency" or what it means to "be resident in" Canada, is not so unusual. That said, it needs to be made a lot more clear if there is going to be fair and equal treatment of citizenship applicants.



Edited by dpenabill - 28 Jan 2011 at 8:05pm

depenbil: wonderful job, can it be in a little bit more simple language..

  This is an excellent write up, and a good call on the Chicago case.  I have made it through the now overturned decision, and I have some thoughts on our neighbors' take on the notion of residence in that context (residence as a requirement to vote and run for office in local elections) that I haven't written up yet, but incidentally it seemed like a more difficult decision to read than what we see come out of the Canadian Federal Court in citizenship cases.

As an afterthought, regarding the recent cases being discussed, I am still very disappointed by the fact that what I thought was a very positive recent development in citizenship jurisprudence ("a sea change in the recent jurisprudence of this Court"), ie the hybrid 2-test approach in Salim, seems to have fallen by the wayside.  I just can't understand why the other judges would not to follow this, for once, very good model, certainly superior to the "3 equally valid (except when we say they are not) approaches" model.  Any ideas?


Edited by timbit_TO - 29 Jan 2011 at 2:16am

There is no (strict)obligation on the citizenship judge to use the liberal approach to considering residency, specially less then 1095, as long as the judge provides reasons 'clearly' after review of the evidence. If the judge goes after the strict 1095, s/he is fully authorized to consider anything less than 1095 as 'not meeting the residency requirements under the Act' and thereby rejecting the application. I doubt if the MCI would appeal those.
I also feel the location/demographics of the citizenship office, and the experience of the judges themselves, and the clientele norms, and other factors also come into play. There is still considerable approach to being liberal in considering grant files, compared to the conservative approach. For example, if a person was on study/work/other permit in Canada prior to being granted PR, and if that person was in Canada for most of the time, s/he would still need to qualify with 1095 of physical presence, that means 2 years after PR, and 2 years before PR which equal to 1 year. That means the person is in Canada for 1460 days, not 1095 but for citizenship the days are considered 1095. Now if this person were to apply sometimes after 3 years at face value, it really depends on whether or not CIC would process that application and let the CJ make a decision on it, if it makes it that far. If it makes it that far, it could possibly be successful, such as one of the cases in FC.

The fraud and fake applicants have made things worse. If there was negligible number of frauds happening, probably the citizenship staff and judges would probably, still be more lenient and have a liberal approach. But due to large numbers of fake residents, specially in GTA aided by shady consultants, it can force the staff and judges to go for the strict requirements, which means genuine applicants would/could be measured with the same stick. This can be the catalyst behind the decisions to use specific approaches for otherwise 'non-qualifying' applications in terms of residency.
Not only residency, but I feel that CIC has shown a lot of leniency in the language category. A lot of people can't even speak english (not to mention french), they stay within their communities and hardly venture out. When they show up for interview, they are not able to communicate with CIC staff. Yet are still allowed to take the test. I am guessing most of them still (eventually) get their citizenship. But if CIC were to take it at face value and enforce it, you'd see a lot of them failing to qualify until they learn the language, specially in GTA/GVA region offices. Or are these the ones that make up the 'refused' stats each year? I find it hard to believe.
I mean, what's the approach to policy enforcement there? It seems like it does not even exist, unless the officers/judge seem hell-bent upon refusing such people who can't speak a word of english despite claiming to live here for at least 3 out of last 4 years, which would then be decried as discrimination,etc.

canvis2006 wrote: Not only residency, but I feel that CIC has shown a lot of leniency in the language category. A lot of people can't even speak english (not to mention french), they stay within their communities and hardly venture out. When they show up for interview, they are not able to communicate with CIC staff. Yet are still allowed to take the test. I am guessing most of them still (eventually) get their citizenship. But if CIC were to take it at face value and enforce it, you'd see a lot of them failing to qualify until they learn the language, specially in GTA/GVA region offices.

You are right about the applicants who are not able to speak either English or French, can take their test. What you don't know is that, the staff who check applicants in at their tests, if they are not satisfied with the language abilities of the applicants, have the discretion and duty to request a language hearing with a judge. That does not stop the applicant from taking his test. Should the applicant fail both the language requirements and the tests, then he(she) will be request to have a knowllege AND language hearing with a judge.