Leaving Canada after applying for citizenship

Hi All,

Thanks Jogruni. This was one of my concerns indeed. There are various tests a CJ can apply to determine your residency requirement. If someone has been genuinely physically present >1095 days in the past 4 years, can such a person be refused on the basis of other qualitative tests, such as "centralizing your mode of existence in Canada"  or "establishing residence"?! I have not seen any such case. You can always argue my intentions are to come back to Canada shortly later. 

There are various tests a CJ can apply to determine your residency requirement. If someone has been genuinely physically present >1095 days in the past 4 years, can such a person be refused on the basis of other qualitative tests, such as "centralizing your mode of existence in Canada" or "establishing residence"?! I have not seen any such case.

I addressed this in RQ discussions. I was not exactly succinct though.

I do not think a CJ can. And, in particular, I have seen no such case either. Moreover, I do not think a CJ would deny an applicant if the CJ is convinced the applicant was actually, physically present > 1095 days (qualified days) during the relevant 1460 days (following the establishing of residency in Canada and prior to the day of applying).

But there is a lot of room for a CJ to have doubts about whether the applicant was actually, physically present in Canada for all the days the applicant claims to have been in Canada.

Direct proof of presence on any given day is not always that easy to find.

Thus, the concerns expressed by jogruni are real concerns. How this plays technically is one thing. But how it plays out practically is the real thing.

Which leads to this:

You can always argue my intentions are to come back to Canada shortly later.

If you reach that point, you probably have problems. What you can argue is usually about trying to convince someone, a decision-maker, to change their mind, and about the only time people change their mind is when they want to or when they decide to.

And intention is almost always about inferences not about what a person claims is their intention. When the guy points a gun at someone's head and pulls the trigger, the jury is not going to give much (any?) weight to the guy's argument that he thought the gun was not loaded and did not intend to hurt anyone. Does not work that way. They infer the intent from the actions not from what the actor says. (Although, as they say in the movies, anything you say can and will be used against you . . . meaning, for example, that admissions against interest often do have much weight.)

If a CJ gets the impression the applicant does not intend to maintain a permanent, life-time home in Canada, you can bet the CJ is going to go over that application very, very closely, looking for reasons to deduct time from the residency calculation. If

And the longer abroad the applicant stays after applying, the more a decision-maker is likely to infer the applicant does not and did not intend to maintain a permanent, life-time home in Canada . . . especially if the applicant is abroad until just before the test, and then is abroad again until just before the hearing with the CJ. Such an applicant best have submitted a strong audit trail of actual presence in Canada for more than 1095 days during the relevant time frame, including a good deal of direct evidence of presence not just passive and indirect evidence.

Evidence:
Direct evidence of presence is evidence tending to show the applicant actually engaged in some activity at a specific time and place in Canada; for example, enrollment in a university course is only indirect evidence; actual attendance record indicating specific days of actual attendance would be direct evidence of presence on the respective days.
Passive evidence includes things like utility and rent receipts, a drivers license, things consistent with residing in Canada and supporting an inference of presence but not directly showing presence.

These things go the other direction as well. And a person given RQ will be requested to submit information and documentation about these things relevant to showing ties and presence and residence abroad. And yes, ties abroad can lead to inferences unfriendly to the applicant trying to persuade the CJ to infer that the applicant was really in Canada on all those days in-between the days the applicant can show direct evidence of actual presence.



Moreover and importantly: The applicant for citizenship must continue to be in compliance with the PR residency obligation all the way to the day of taking the oath. If it takes 18 months to get to the test and another 20 months to reach the hearing with the CJ, that totals a couple months over three years . . . if the applicant has been abroad more than three years, the applicant becomes inadmissible, and if inadmissible the applicant no longer is eligible for a grant of citizenship. Not much attention was being paid to this before, one gets the impression, but at least under this Conservative majority government it appears that things like this are going to be scrutinized more going forward.


Regarding multiple tests for citizenship:

Oh yes, this is the case and it is a problem. Maybe less so though going forward since the trend seems to be solidly headed toward the strict physical presence test. A few Federal Court justices are still overturning some CJ decisions based on the application of the strict test (see the "Residency: proof, practice, policy . . ." topic, including some recent posts in which I cite and discuss some cases in which some justices are still demanding a Koo analysis).

But more and more, it is obvious that, first, anyone applying based on so-called "basic-residence" and not meeting the > 1095 threshold can for sure expect long process RQ and a long wait indeed, and secondly that more and more of these applicants are being denied citizenship.

The real test for practical purposes (there are some exceptions) is the actual, physical presence test.

By the way: There are no "high court" decisions regarding what constitutes being "resident in Canada" under the Citizenship Act and that is a huge part of the problem. The appeal of a citizenship case is to what is mostly the trial court level of the Federal Courts; just that these courts do hear appeals of administrative decisions and some other proceedings, including, for example, the appeal of a decision by a Citizenship Judge. There is not even a procedure for seeking leave to appeal beyond that. There is no certification of questions to be heard by a higher court. So there are no decisions by the ordinary appeal level of the Federal Courts (Federal Court of Appeal I think it is called), let alone the Supreme Court of Canada, regarding what residency means under the Citizenship Act. Since decisions by a justice of the Federal Court have no binding effect on other justices of the Federal Court, there is a patchwork of decisions with very incongruous interpretations and results. Some "comity" is recognized, but not much in this area. Frankly I find the jurisprudence to be rather beneath a great country like Canada. I understand what Justice Mosely said about not every inconsistent application of the law is necessarily unreasonable, but when there are multiple inconsistent versions of the law being applied thousands of times each year, and the most consistent thing about the application of the law is that there is no consistency, that is, on its face, in my view, patently unreasonable. It is an unacceptable situation. It is somewhat less significant now because of the trend to be more consistent and apply only the strict presence test, but it is still a real mess and taints the whole jurisprudence surrounding interpretations and applications of the Citizenship Act.

In other words, it seems that it's up to the ministry to finally accept you or no, even if you meet the requirements of 1095 days/past 4 years, and have some reasonable proof for that. The citizenship acts says that the minister shall grant citizenship to anyone who meets these requirements, but on the other hand, citizenship is not a right. They can refuse you for no reason. Also as you mentioned in another post, in practice they have much more room to play with you and possibly reject your application (eg putting you in a 2 year queue to see a CJ, maybe until your PR expires, etc). The court cases are not a reliable source of info, since they are old, and do not reflect on cic position on applications made after sept 2011, when changes were made in cic. 

Edited by eli - 20 Jan 2012 at 1:20am

In the RQ discussions thread I just discussed the following two cases. At least one is directly relevant to the discussion in this topic and both, it seems to me, are relevant to the extent they reveal a continuation of a trend we have seen unfolding during the last year.

Those cases are:

MCI and ABDULDAEM AL-SHOWAITER

MCI and DINA EL-KOUSSA

Regarding what the cases tell us, no, these are not old cases, these are cases decided earlier this month, and they fit a pattern we have seen unfolding for the last year.

The cases are a very reliable source of information.

However, they are a very limited source of information . . . not because of how old they are but because they represent such a small portion of all cases processed, and indeed, are but a very, very small slice of just the RQ cases.

We can, nonetheless, glean a great deal from the cases . . . and in particular, cases like these last two I discuss are particularly informative because they are cases in which the Citizenship Judge ruled in favour of the applicants but CIC appealed . . . so from these cases we get a more strident view of the position advanced by Minister Kenney and his minions.

One thing that eli posted that really caught my attention was this (and I discuss it in the RQ discussions topic as well):

It seems to me that CIC recently is taking efforts to possibly refuse applicants who they believe will reside outside of Canada if granted Citizenship, "even if they meet the actual requirements". This include those who meet the requirement of >1095 ddays of presence, but want Canada citizenship for rainy days. Correct me if I am wrong.

As I said, I discuss this in the RQ thread and, it seems to me, part of that is worth repeating. I said:

I am not sure this is true. But given the delays in processing RQ cases, sure, one can wonder. That said, frankly, well, a grant of citizenship is not like qualifying for a university degree, not a matter of earning a certain number of credits and then being entitled to citizenship, as in, entitled to a Canadian passport. It does not work that way. And it would not surprise me if CIC was implementing measures intended to restrict this sort of thing. PRs intending to live their life in Canada, to be real citizens of Canada, should have little or nothing to fear regarding this. Those whose agenda revolves obtaining the Canadian passport, well, sure, they can anticipate heightened scrutiny and more strict application of the laws and regulations, and, even, a more skeptical fact-finding process regarding the essential elements necessary for a grant of citizenship.

It is worth emphasizing, again, something I have often said here, and that is that the applicant who appears to deserve citizenship is likely to fare far, far better than an applicant who appears to NOT deserve citizenship.

This is not rocket science. It is not even civil engineering. A little common-sense tells much of the story. Applicants with a life in Canada, and an obvious intent to live their life in Canada, are going to find the fact-finding decision-makers significantly more friendly than someone whose circumstances hint that they approached Canadian citizenship like acquiring points for the purpose of obtaining a university degree.

Sure, many, many have circumstances that are far from so clear-cut. So CIC officers and Citizenship Judges assess the facts and circumstances and histories. Bottom-line: applicants spending a lot of time outside Canada, whether during or after the relevant four year time frame, send a pretty strong message about their intentions. And those intentions, as inferred, sure, they are going to have an impact on the decision-making. Again, no rocket science necessary.



All that said, there is a critical aspect relative to maintaining PR status that may not be entirely clear.

After quoting an observation of mine about the need for the PR to remain in compliance with the PR residency obligation, eli posted the following:

Sure. But the applicant can come back for few days towards the end of the 3 years period, and renew his PR. He has been likely present in Canada 2 years preceding the application time, and therefore eligible to renew his PR. He may be even eligible to renew his PR while being abroad (not sure about this). But again back to the same question: how to prove residency to renew your PR? there is a lot of room for cic to question your residency. Not sure how hard it is to renew PR status.

First, I concur in the analogy and observations made by jogruni, highlighting some important distinctions and illuminating some significant nuances in the contrast between the Citizenship residency requirement and the PR residency obligation.


But it also appears to me that there is, perhaps, some confusion about "renewing" the PR card.

In particular, this part looms large:

But the applicant can come back for few days towards the end of the 3 years period, and renew his PR. He has been likely present in Canada 2 years preceding the application time, and therefore eligible to renew his PR.

Let's be clear. A PR who has been outside Canada for, say, two and a half years can, indeed, return to Canada and, so long as within the previous five years was present in Canada > 730 days, apply for and obtain a new PR card, and that card will be "valid" for five years. BUT that does NOT absolve the PR from continuing to meet the PR residency obligation. As has been oft times emphasized in the preserving PR status forum, the validity dates of one's PR card is irrelevant regarding compliance with the residency obligation.

If that PR then goes abroad again, as soon as that PR has been abroad > 1095 days within the previous five years, that PR is INADMISSIBLE, inadmissible for being in breach of the PR residency obligation, and as such no longer eligible for citizenship, and this is true even if the PR card itself is valid for another three or four years.

Beyond the whole who deserves citizenship versus who might not balancing act, and how that might affect the decision-making of those who decide what the facts are, to be clear, if an applicant for citizenship goes abroad soon after applying for citizenship and before actually taking the oath of citizenship they are abroad for > 1095 days out of five years, they are in breach of the PR residency obligation, they are inadmissible, and as such NOT eligible for citizenship, and if CIC discerns this, almost for certain, that individual will be precluded from taking the oath.

Remember: the PR card is only documentary evidence of status. It is not, itself, determinative of status. A PR without a valid PR card is still a PR. A PR with a valid PR card may nonetheless be inadmissible.