Changes to Citizenship Process in 2014

EasyRider wrote: You may be "intending to stay after becoming a citizen" (i.e. in the future, after getting citizenship too) at the moment of signing application and during processing, but after getting citizenship intention may change. Intention isn't something that must be fixed for your whole life, if you sign such a statement. There's no conflict here.

Yes, I was going to go there next, but wanted to clarify the first point first -- that it will be very possible legally to revoke citizenship based on a claim that the intent to stay was signed in bad faith, and thus the whole citizenship application was fraudulent by extension.

How one would prove that an applicant signed his intent in bad faith, and not simply had a change of circumstances later, is a completely different question and discussion.

One could well argue, that if a new citizen has left Canada within 1 year [or insert an arbitrary time period here], then that is a proof that an intent was not there to begin with, and thus the application was fraudulent, which is grounds for citizenship revocation. And where does that scenario lead us? Two-tier citizenship system.


Edited by coldnomad - 11 Feb 2014 at 11:14pm

So we have officially become SECOND CLASS CITIZEN. Nice!!!

This new bill has an alarming socio economic impact on the everyday lives of the immigrants/second-class citizens. I am mostly alarmed by the Power vested upon the Citizenship Minister neglecting new citizens from exercising the right of "DUE PROCESS". The Mobility right for new citizens is in jeopardy. People would think twice before leaving the country following the grant of their citizenship.

the socio-economic impact is quite pervasive. As "special" citizen, you have the feeling that Canada will never be your country. so every purchase you make, every decision you make regarding your social and financial status would hamper the Canadian economic structure. I personally would not buy a house or an expensive car or invest when I know that i am treated in a 'special; way from rest of the other by-born citizen. Because I know that tomorrow might be my last day. Permanent Residents brings huge amount of money every year to Canada for settlement purpose and this number is about to go down. Unless someone is dumbfounded, it is quite apparent that it is quite risky for a second class citizen to invest in a country where he/she is not welcome, be it education, be it real state, or be it an used car.

I know I would not, it is time to move my money elsewhere :) Sorry Canada.

P.S: I know feel obliged as a second class citizen to spread the word to new immigrants on how they would be treated in future so that they can make smart decisions.

Edited by chudir bhai - 11 Feb 2014 at 11:42pm

EasyRider wrote: coldnomad wrote: One could well argue, that if a new citizen has left Canada within 1 year [or insert an arbitrary time period here], then that is a proof that an intent was not there to begin with, and thus the application was fraudulent, which is grounds for citizenship revocation. And where does that scenario lead us? Two-tier citizenship system. They can argue and invoke investigation based on assumption, but they must find proof showing that there was no intent present during application processing. And that would be very difficult and even not worth trying in the most cases, imo.

Extent of presence required
Separating what the underlying objective is, from what the requirement specifically is, the period of time spent physically in Canada under the proposed law should be fairly easy to understand, even though it is a requirement based on multiple conditions and in many scenarios will involve some complexity in calculating.

Under the new law, if adopted, a PR will be eligible to apply only if the PR has been physically present in Canada for at least 1460 days within the previous six years, AND was present in Canada for at least 183 days in four of the calendar years within the previous six years.

That is, BOTH are required.

In practical terms, almost everyone who meets the 1460 days within the preceding six years will also meet the requirement to be physically present for at least half of four of those six years. Arithmetically there are combinations of presence and absence in which the 1460 day requirement could be met but not the one-half of each of four calendar years requirement, but that would mostly involve some unusual circumstances.

Presence in Canada for at least 183 days during a calendar year raises a presumption the individual was a resident in Canada for that calendar year pursuant to Canadian tax law. My sense is this provision is more or less intended to establish a legal basis for requiring submission of Canadian tax returns for at least four calendar years during the relevant six years. That in turn will entail having to report worldwide income for those years. This means the eligible applicant will be essentially compelled to be creating an audit trail of his or her life in Canada. The lack of such an audit trail can then be interpreted to be stronger evidence of possible (perhaps probable) absences for more days than the applicant has reported. And for those who are gaming the system, and in particular those whose career or income ties are largely still abroad, it will compel them to divulge those ties or risk additional criminal and other consequences if they elect to conceal the overseas income from the CRA.

In essence I think this is about closing evidentiary gaps.

While I hestitate to further address the non-issue of an allegedly potential revocation action because a naturalized citizen leaves Canada, since it really is just a distraction, I think the real significance of including an intent element is a hugely important issue, and so I will further address this in an effort to raise awareness about the real issue, the significance of the inclusion of an intent element and what it means for those whose future applications will likely be processed in accordance with the new law including this required intent element.

A person's "intent to reside" in Canada can only be disproved based on his/her activities and circumstances during the application processs up to the point of taking the oath. Is there specific text in the proposed legislation that explicitly explains this and places that limit? Can you send me the passage or a quote? Because I don't see a point in making a PR sign an "intent not to leave after becoming citizen", and then not limiting "disprovability" of that intent to only the PR period.

Foremost, the proposed legislation, if adopted, will not require PRs applying for citizenship to sign an "intent not to leave after becoming citizen."

Bill C-24 proposes to impose a requirement that, to be eligible for a grant of citizenship, an applicant must be a PR who meets the presence requirement and who "intends, if granted citizenship, to continue to reside in Canada." (This is proposed subsection 5.(1)(c.1)(i); see Bill C-24 for very narrow exceptions/alternatives in 5.(1)(c.1)(ii), 5.(1)(c.1)(iii) (such as for someone in Canadian military anticipating being deployed abroad).)

There is, simply, NO provision in the proposed Bill which would restrict the otherwise legal movements of any naturalized citizen. There is NO provision in the proposed Bill which would make leaving Canada grounds for revoking a naturalized citizen's citizenship.   

While the proposed process for revoking citizenship is, in CIC's terms, streamlining the process, there is still a right to review in the Federal Court and for purposes of due process, there is no doubt about the nature and scope of such review, that any action to revoke a citizen's citizenship will be subject to a high degree of scrutiny if not the highest degree of strict scrutiny. There is no hint, no suggestion, that no matter how draconian the Minister of the day might be, that a Minister will be able to use proceedings to revoke citizenship as a tool against dissidents or political opponents or those advocating unpopular causes, or otherwise capriciously.

And for anyone who actually lives in Canada for any significant period of time after becoming a citizenship, that would be sufficient to diffuse if not solidy defeat any claim there was intent to the contrary to that required.

This revocation for leaving Canada scare is a red herring. It is NOT an issue.

OK, sure, for someone who is not genuinely seeking citizenship and who really has no genuine intent to make his home in Canada, DUH!, sure, of course there is a risk of revocation proceedings if soon after the oath ceremony such an applicant leaves Canada to live elsewhere.

But the reality is that the changes in the law will give CIC more leverage and tools to make and follow-up inquiries which will either expose such applicants during processing, or compel such applicants to conceal information in order to avoid being exposed. And yes, those who engage in fraud will of course be subject to the penalties and consequences for engaging in fraud. That tends to be how the system works, when it does work, if it works. (Recognizing that it has not worked all that well in some respects in the recent past.)

Which leads to this:

Yes, the inclusion of a requirement based on intent, an intent to continue to reside in Canada, that is a huge, huge change, one which is likely to have a dramatic impact on how a significant number of applications are processed.

To be clear though, an intent element is a common requirement for naturalized citizenship. Both Australia and the U.S. have intent requirements (worded differently, but of similar import) for example.

The real risk of draconian application is not about actions to revoke citizenship, but about more aggressively scrutinizing applicants applying for citizenship, with the Minister's delegates (Citizenship Officers) having broad discretion in this regard, and broad discretion inherently increases the risk of abuse, excess, overreaching, even discrimination.

Few will worry about those who do not have a genuine intent to continue residing in Canada. They will not qualify for Canadian citizenship if the new law takes effect. For those immigrants who feel like they immigrated to Canada with the assumption that they could qualify for and obtain citizenship notwithstanding plans to leave Canada after getting a Canadian passport, and so this change in the law will be unfair to them, they were attempting to exploit the system and now (if the Bill passes) they will not be able to exploit it. They are not likely to see much sympathy among the Canadian populace.

And scare tactics about some draconian Minister with power to arbitrarily revoke citizenship based on trumped-up accusations of phony intent are not going to gain much if any traction among the Canadian populace either.

The real worry is that just due to this or that circumstance, this requirement is going to make the process dramatically more difficult for a significant number of legitimate applicants, including in particular those whose circumstances do not neatly fit inside the immigrate-and-settle-in-Canada-for-life cubby hole. PRs who are still obtaining degrees and certificates, which may require extended time in a university outside Canada, for example. PRs who are single and young and without family in Canada, such that all their family ties are still abroad, for example; such applicants may easily fall into the suspect lack-of-intent category regardless of their genuine goals of making a life for themselves in Canada. PRs with elderly parents and other back home situations requiring a sidetrip on their path to settling in Canada for life, will be particularly vulnerable in the application process which includes an intent requirement.

I just scratched the surface in previous posts about some evidentiary circumstances which can raise red flags and thus cause an applicant to be given RQ, exposed to more thorough and intrusive scrutiny, resulting in delays. This intent element opens the doors of inquiry wide, wide, wide. Those dragged into the more intrusive and difficult and lengthy processing will almost certainly include a significant portion, if not majority, who are legitimate and genuine.

And, moreover, the risk of being denied approval by a Citizenship Judge, for those who CIC suspects and makes a referral with opposition to a grant of citizenship, will be way, way higher. Currently applicants can go to a CJ hearing confident of the ultimate outcome if they know they have the basic proof to document the fact they were actually living in Canada. If this intent provision becomes part of the new law, going forward that may not suffice. In particular, anyone who is challenged and who has significant continuing ties abroad (which is hard to imagine most not having, at least not any of us who immigrated as adults and thus had a life elsewhere before coming here), faces some uncertainty regarding the ultimate outcome.

In any event, the real crux, the real hammer in the intent requirement is its impact on the scope and intrusiveness of examining and evaluating those applicants CIC perceives to be in pursuit of a citizenship-of-convenience. This looms very large.



Side effects: impact on pending applications
What a few participants in this forum are more concerned about, and to a large extent afraid of, is that in the meantime CIC will escalate its scrutiny of applicants perceived (by CIC) to possibly be among those seeking a citizenship-of-convenience. They have reason to be concerned. For those who are, one might say, suspects, at the least this proposed legislation signals the prospect of longer processing eventually, after a long long while, going to an in-person hearing with a Citizenship Judge, with CIC arguing, in the referral, that there is doubt about the applicant's proof of residency and the application should be denied.

Note for example, after a previous Bill (Bill C-37 "An Act to Amend the Citizenship Act") had been tabled by the Conservatives, the Minister actively argued in Federal Court that the proposed changes regarding the residency requirement should be considered in applying the current law. For example, in the Zabad and MCI case the court observes:

The Minister further submits the proposed changes in Bill C-37, An Act to Amend the Citizenship Act introduced in June 2010, inserting the word “physically present” strengthens the intention that a permanent resident must be physically present in Canada for 1095 days during the preceding four years.

The Federal Court justice was not persuaded in that case, but this argument surfaced more than occasionally and was given some weight by other Federal Court justices (as I recall -- the Zabad case is the only one I can recall specifically at the moment).

Note, that Bill did not reach a Third Reading and did not become law. Nonetheless CIC was actively advocating that what it proposed should be considered in applying the law, at least until Bill C-37 expired and an election was called.

The point is that even if the Minister does not overtly attempt to impose a de facto version of an intent requirement for applications to be processed in accordance with the current version of the law, it is almost certain that CIC will nonetheless be targeting, for further inquiry, more intrusive and skeptical evaluation, and probably delayed processing, applicants who CIC perceives to be seeking a citizenship-of-convenience or otherwise applying-on-the-way-to-the-airport. And there are probably thousands of PRs with pending applications for whom this looms as a significant impediment, a problem.

To be clear, CIC will not be able to impose the new law residency requirement (including its intent element) on those with applications already pending. Not as a requirement per se. But the level of inquiry, the amount of skepticism, the timeline for processing, are all ways in which CIC can and perhaps is likely to up the ante for some applicants. The obvious applicants more likely to be affected are those who have left Canada to live or work in another country while the application is pending. Any applicants issued RQ and for whom there are continuing ties, ties tending to weigh more than Canadian ties, could face heightened scrutiny and difficulty, and longer processing times, as a result.

This is no doubt a major concern for more than a few.