Chapter CP 5 - Residence

Section 5 - Residence- Policy for persons who have absences from Canada

5.1 This section is about

• absences from Canada and the residence requirement of the Citizenship Act;
• the case law of the Federal Court of Canada on the question of residence;
• reviewing the decision of the citizenship judge on the question of residence;
• assessing residence issues fairly and consistently to ensure the objectives of the legislation are met.

5.2 Authorities

5.3 Three conditions for residence

Paragraph 5(1)(c) sets out three conditions for citizenship applicants. They are:

• admission to Canada as a permanent resident;
• retain permanent resident status; and
• accumulate a specified period of residence in Canada.

5.4 Purpose of the residence requirement

The purpose of the residence requirement is to ensure that an applicant for citizenship can become familiar with Canada and become integrated into Canadian society.

5.5 Decision making

Citizenship judges have legislated authority to determine whether applicants meet the requirements for citizenship.

In doing so, the citizenship judges consider all the facts and documentation on file, in addition to the applicants’ responses to the Residence Questionnaire. The onus is on the applicant to provide evidence in support of an application.

5.6 Definition of "residence"

While the Act stipulates the manner in which residence is to be calculated, it does not define what constitutes "residence" or "being a resident in Canada" for citizenship purposes. The Federal Court of Canada has made many decisions on this question but there has been little consistency in the interpretation of the concept of residence. In the words of Madame Justice Reed, "There is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery."

The authority to decide whether an applicant meets the requirements of the Citizenship Act rests entirely with the citizenship judge. The judge renders his or her decision independently of the Minister.

Once the citizenship judge approves an application, however, the Minister’s delegate (usually, the citizenship officer) must review the file to determine whether the decision could be subject to appeal. If that is the case, it is necessary to send the file to Headquarters for a decision on possible appeal.

For the administration of the Citizenship Act, a consistent and fair approach must be followed. To achieve this end, you must make sure you that you carefully follow the policy below in reviewing the decisions of the citizenship judge on the question of residence.

5.7 Policy

In reviewing the decision of a citizenship judge on the question of residence, the policy to be followed, in accordance with the Minister’s direction, is as follows:

5.8 A - Physical presence

Other than exceptional circumstances, a citizenship applicant must have accumulated three years (1,095 days) of physical presence in Canada in the four years preceding the date of application. In other words, an applicant can be absent from Canada for up to one year, within the four year period.

5.9 B - Exceptional circumstances

In accordance with established case law, an applicant may be absent from Canada and still maintain residence for citizenship purposes in certain exceptional circumstances. To cite Mr Justice Pinard in the Mui case:

I agree in principle with some decisions of this Court which, given special or exceptional circumstances, do not require physical presence in Canada for the entire 1095 days. However, it is my view, that an extended absence from Canada during the minimum period of time, albeit temporary, as in the present case, is contrary to the purpose of the residency requirements of the Act. Indeed, the Act already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person’s application for Canadian citizenship. [Emphasis added]

Even the early Federal Court decisions on residence recognized that absences from Canada should generally be for special and temporary purposes. The Associate Chief Justice Thurlow, in the much-cited Papadogiorgakis decision, seemed to view that actual presence in Canada was required, except for short vacations or other temporary absences such as pursuing a course of study abroad (and always returning home at school breaks).

In assessing whether the absences of an applicant fall within the allowable exceptions, use the following six questions as the determinative test. These questions are those set out by Madame Justice Reed in the Koo decision. For each question, an example is given of a circumstance that may allow the applicant to meet the residence requirement.

1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

Example of an allowable exception: an applicant lived here for 3 years before leaving Canada for a period of several months. The applicant then returns here to permanently live in Canada and files a citizenship application at that time.

2. Where are the applicant’s immediate family and dependents (and extended family) resident?

Example of an allowable exception: an applicant leaves Canada for several days each month, but her mother-in-law, her husband and her children all continue to live in Canada while she is outside of the country.

3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

Example of an allowable exception: an applicant leaves Canada each month for 7 or 10 days, but stays abroad at hotels where the applicant conducts business or at the home of someone the applicant is visiting. The applicant always returns to Canada at a home owned or rented by the applicant.

4. What is the extent of the physical absences - if an applicant is only a few days short of the 1,095 total it is easier to find deemed residence than if those absences are extensive.

Example of an allowable exception: an applicant was physically present in Canada the vast majority of the time, despite repeated absences.

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?

Example of an allowable exception: the applicant obtains permanent residence in Canada and is offered a job here. After beginning his employment here, she is asked by her employer to serve abroad for one year to help manage an important business venture. The applicant then returns here after the assignment is completed to resume her work in Canada.

6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

Example of an allowable exception: an applicant has been spending a few months abroad, each year, to look after his elderly parents. When in Canada, however, the applicant is involved in his work and business ventures. He also is involved with community organizations and the vast majority of his personal contacts (professional and social) are people who live here in Canada. Finally, the applicant pays income tax in Canada and in no other country.

In applying this test to an application, you must decide whether the absences of the applicant fall within the types of exceptional circumstances. If the absences do not fall within these exceptional circumstances, you must refer the citizenship judge’s complete file on the applicant to Case Management Branch for possible appeal by the Minister. Include your analysis of why the applicant does not appear to meet the residence requirement. Keep in mind that the delay within which an appeal can be filed is 60 days.Cases must therefore be referred on a timely basis, or the Minister will lose the right of appeal (see Chapter 8, "Appeals", for the procedure to follow).

5.10 C - Extensive absences - majority rule

If you determine that all the absences of the applicant fall within the allowable exceptions, you must then assess if the applicant was outside of Canada, in total, for a longer period of time than he or she was in Canada.

Given that the purpose of the residence requirement is to ensure that the applicant for citizenship can become familiar with Canada and become integrated into Canadian society, it follows that the longer the absences of the applicant, the more difficult it will be for the Minister to be convinced that the applicant meets the residence requirement. This is true even if the reasons for the absences seem to fall entirely within the exceptional circumstances described above.

Another way to consider the "majority rule" is to keep in mind that, for citizenship purposes, a person can only have one residence at any given time. Therefore, if a person is spending a lot of time in another country (in effect, residing there), that person cannot, at the same time, "maintain residence in Canada".

If the citizenship judge approves an application where the applicant has been outside Canada the majority of the time (in other words, has been outside Canada for more time than in Canada), the citizenship judge’s complete file on the applicant must then be referred to Case Management Branch for possible appeal by the Minister. Include your analysis of why the applicant does not appear to meet the residence requirement. Keep in mind that the delay within which an appeal can be filed is 60 days. Cases must therefore be referred on a timely basis, or the Minister will lose the right of appeal (see Chapter 8, "Appeals", for the procedure to follow).

5.11 D - Appeal

The Minister has delegated the authority to file an appeal of a decision of the citizenship judge to staff at Headquarters. All cases referred by local officials will be reviewed in light of the above policy and in light of legal advice and current Federal Court case law. A decision will then be made on whether to appeal, and this decision is submitted to the Minister for approval. The local office will be advised of the decision.

As the Minister can only appeal a judge's decision within 60 days of the date of the decision, clearly identify the case as URGENT. Clearly indicate the date the appeal period expires.

Do not grant citizenship.

See Chapter 8, Appeals