citizenship and maple card

Old Sep 16th 2003, 7:01 am
  #16  
David Tew
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Rich,

Regarding your observations on the Citizenship Act being brought into
alignment with IRPA, re: what constitutes permanent residence, I have
a question. For purposes of IRPA, a PR's time out of the country
accompanying a Canadian citizen spouse is counted as time in Canada.
Does that mean a PR could apply for Canadian citizenship three years
after landing without being physically present in Canada for much of
that time?

Dave

[email protected] (Rich Wales) wrote in message news:<[email protected] rg>...
    > Andrew Miller wrote:
    >
    > > Citizenship Act states that: 5. (1) The Minister shall
    > > grant citizenship to any person who <...> c) has been
    > > lawfully admitted to Canada for permanent residence,
    > > has not ceased since such admission to be a permanent
    > > resident pursuant to section 24 of the Immigration Act,
    > > and has, within the four years immediately preceding
    > > the date of his application, . . . .
    >
    > That's the way 5(1)(c) of the Citizenship Act used to read, but it
    > appears that this paragraph was amended by the same bill that gave
    > rise to the current Immigration and Refugee Protection Act. See
    > the final version of Bill C-11 (37th Parliament, 1st Session),
    > subsection 228(1). The current text of 5(1)(c) in the Citizenship
    > Act reads like this:
    >
    > (c) is a permanent resident within the meaning of subsection
    > 2(1) of the Immigration and Refugee Protection Act, and has,
    > within the four years immediately preceding the date of his
    > or her application, . . . .
    >
    > So, the "has been lawfully admitted" and "has not ceased" clauses
    > have been replaced by a reference to the definition of "permanent
    > resident" in the new IRPA.
    >
    > > In the "Interpretation" section the same act states pretty
    > > clearly: 2(b) a person who is lawfully present and entitled
    > > to permanently reside in Canada is deemed to have been
    > > lawfully admitted to Canada for permanent residence
    >
    > But since the current text of 5(1)(c) of the Citizenship Act
    > doesn't use the phrase "has been lawfully admitted to Canada for
    > permanent residence", the above interpretation wouldn't seem to
    > be relevant to that part of the Citizenship Act any more.
    >
    > And the phrase "permanent resident" is defined in 2(1) of the
    > IRPA as follows:
    >
    > "permanent resident" means a person who has acquired
    > permanent resident status and has not subsequently lost
    > that status under section 46.
    >
    > Section 46 of the IRPA describes the ways in which a permanent
    > resident loses his/her status: by becoming a citizen; by
    > failing to comply with the residency obligation in section 28;
    > by having a removal order come into force; or by having a claim
    > for refugee protection denied.
    >
    > And section 28 of the IRPA is the "730 days out of five years"
    > residency requirement.
    >
    > Rich Wales [email protected] http://www.richw.org
    > *NOTE: I've lived in both Canada and the US and have dual citizenship.
    > *DISCLAIMER: I am not a lawyer, professional immigration consultant,
    > or consular officer. My comments are for discussion purposes only and
    > are not intended to be relied upon as legal or professional advice.
 
Old Sep 16th 2003, 7:16 am
  #17  
Andrew Miller
Guest
 
Posts: n/a
Default Re: citizenship and maple card

No, you are confused. What Rich meant was that Citizenship Act has been
amended in parts were it referred to former Immigration Act - now it refers
to current Immigration and Refugee Protection Act. And this is the only
change.

You still need to accumulate 1,095 days of presence in Canada within 4 years
preceding application to be eligible to apply for citizenship. Time abroad
while accompanying Canadian spouse doesn't count as time in Canada for that
purpose, period.

--

../..

Andrew Miller
Immigration Consultant
Vancouver, British Columbia
email: [email protected]
(delete REMOVE from the above address before sending email)
________________________________


"David Tew" <[email protected]> wrote in message
news:[email protected]...
    > Rich,
    > Regarding your observations on the Citizenship Act being brought into
    > alignment with IRPA, re: what constitutes permanent residence, I have
    > a question. For purposes of IRPA, a PR's time out of the country
    > accompanying a Canadian citizen spouse is counted as time in Canada.
    > Does that mean a PR could apply for Canadian citizenship three years
    > after landing without being physically present in Canada for much of
    > that time?
    > Dave
    > [email protected] (Rich Wales) wrote in message
news:<[email protected] rg>...
    > > Andrew Miller wrote:
    > >
    > > > Citizenship Act states that: 5. (1) The Minister shall
    > > > grant citizenship to any person who <...> c) has been
    > > > lawfully admitted to Canada for permanent residence,
    > > > has not ceased since such admission to be a permanent
    > > > resident pursuant to section 24 of the Immigration Act,
    > > > and has, within the four years immediately preceding
    > > > the date of his application, . . . .
    > >
    > > That's the way 5(1)(c) of the Citizenship Act used to read, but it
    > > appears that this paragraph was amended by the same bill that gave
    > > rise to the current Immigration and Refugee Protection Act. See
    > > the final version of Bill C-11 (37th Parliament, 1st Session),
    > > subsection 228(1). The current text of 5(1)(c) in the Citizenship
    > > Act reads like this:
    > >
    > > (c) is a permanent resident within the meaning of subsection
    > > 2(1) of the Immigration and Refugee Protection Act, and has,
    > > within the four years immediately preceding the date of his
    > > or her application, . . . .
    > >
    > > So, the "has been lawfully admitted" and "has not ceased" clauses
    > > have been replaced by a reference to the definition of "permanent
    > > resident" in the new IRPA.
    > >
    > > > In the "Interpretation" section the same act states pretty
    > > > clearly: 2(b) a person who is lawfully present and entitled
    > > > to permanently reside in Canada is deemed to have been
    > > > lawfully admitted to Canada for permanent residence
    > >
    > > But since the current text of 5(1)(c) of the Citizenship Act
    > > doesn't use the phrase "has been lawfully admitted to Canada for
    > > permanent residence", the above interpretation wouldn't seem to
    > > be relevant to that part of the Citizenship Act any more.
    > >
    > > And the phrase "permanent resident" is defined in 2(1) of the
    > > IRPA as follows:
    > >
    > > "permanent resident" means a person who has acquired
    > > permanent resident status and has not subsequently lost
    > > that status under section 46.
    > >
    > > Section 46 of the IRPA describes the ways in which a permanent
    > > resident loses his/her status: by becoming a citizen; by
    > > failing to comply with the residency obligation in section 28;
    > > by having a removal order come into force; or by having a claim
    > > for refugee protection denied.
    > >
    > > And section 28 of the IRPA is the "730 days out of five years"
    > > residency requirement.
    > >
    > > Rich Wales [email protected] http://www.richw.org
    > > *NOTE: I've lived in both Canada and the US and have dual citizenship.
    > > *DISCLAIMER: I am not a lawyer, professional immigration consultant,
    > > or consular officer. My comments are for discussion purposes only and
    > > are not intended to be relied upon as legal or professional advice.
 
Old Sep 17th 2003, 11:42 am
  #18  
Tom
Guest
 
Posts: n/a
Default Re: citizenship and maple card

There are three conditions for residence in respect of applying for
Canadian citizenship. They are:

1. Admission to Canada as a permanent resident;
2. Retain permanent resident status; and
3. Accumulate a specified period of residence in Canada.

NOW the emphasis is on 'Retain PR status' i.e. while applying for
Canadian citizenship until receiving the Canadian citizenship card.

The Canadian Citizenship Act stipulates that, an applicant must not
lose permanent resident status at any time before being granted
Canadian citizenship. What this means is, if an applicant meets the
residency obligation/requirements as mentioned in the IRPA i.e. 2 out
5 years rule, he/she is eligible to apply as well as to grant Canadian
citizenship after oath ceremony. HTH. Tom.

[email protected] (JAJ) wrote in message news:<[email protected]>...
    > The observation I would make is that anyone thinking of leaving Canada
    > just after applying for Canadian citizenship, or submitting an
    > application from outside Canada, should hire an experienced
    > professional *before* making any decisions.
    >
    > At the very least, the law seems to leave a few grey areas, which
    > means it's not going to be a do-it-yourself job if you are serious
    > about getting approved.
    >
    > Jeremy
    >
    > >On Fri, 05 Sep 2003 22:54:24 GMT, "Andrew Miller" <[email protected]> wrote:
    > >Citizenship Act states that:
    > >
    > >----------------------------------------------------------------------------
    > >-------
    > >5. (1) The Minister shall grant citizenship to any person who
    > >
    > ><...>
    > >c) has been lawfully admitted to Canada for permanent residence, has not
    > >ceased since such admission to be a permanent resident pursuant to section
    > >24 of the Immigration Act, and has, within the four years immediately
    > >preceding the date of his application, accumulated at least three years of
    > >residence in Canada
    > ><...>
    > >----------------------------------------------------------------------------
    > >-------
    > >
    > >In the "Interpretation" section the same act states pretty clearly:
    > >
    > >----------------------------------------------------------------------------
    > >-------
    > >2(b) a person who is lawfully present and entitled to permanently reside in
    > >Canada is deemed to have been lawfully admitted to Canada for permanent
    > >residence
    > >----------------------------------------------------------------------------
    > >-------
    > >
    > >Pay attention to the words "who is lawfully present".
    > >
    > >And of course everyone should remember that application guides or
    > >instructions are only that, nothing more, and CIC clearly states in such
    > >guides/instructions that they are not the law and all legal questions should
    > >be referred to the Act and it's Regulations.
    > >
    > >And as Rich said - CIC when designing forms and guides assumed that law is
    > >clear to applicant and that applicant is "obviously" present in Canada.
    > >
    > >--
    > >
    > >../..
    > >
    > >Andrew Miller
    > >Immigration Consultant
    > >Vancouver, British Columbia
    > >email: [email protected]
    > >(delete REMOVE from the above address before sending email)
    >
    > This is not intended to be legal advice in any jurisdiction
 
Old Sep 17th 2003, 12:10 pm
  #19  
Tom
Guest
 
Posts: n/a
Default Re: citizenship and maple card

A clarification for my previous post. The onus is on the applicant to
prove to CIC that PR status was maintained and that the applicant
maintained an ACTUAL RESIDENCE in CANADA during periods away from
Canada. Where an applicant cannot prove residence in Canada, CIC
Citizenship division will refer the matter to its Immigration division
for re-examination and a decision.

If the applicant's re-entry to Canada was fraudulent or an officer
suspects fraud in the citizenship process, the citizenship application
is referred to Case Management Branch for further investigation. HTH.
Tom.


[email protected] (JAJ) wrote in message news:<[email protected]>...
    > The observation I would make is that anyone thinking of leaving Canada
    > just after applying for Canadian citizenship, or submitting an
    > application from outside Canada, should hire an experienced
    > professional *before* making any decisions.
    >
    > At the very least, the law seems to leave a few grey areas, which
    > means it's not going to be a do-it-yourself job if you are serious
    > about getting approved.
    >
    > Jeremy
    >
    > >On Fri, 05 Sep 2003 22:54:24 GMT, "Andrew Miller" <[email protected]> wrote:
    > >Citizenship Act states that:
    > >
    > >----------------------------------------------------------------------------
    > >-------
    > >5. (1) The Minister shall grant citizenship to any person who
    > >
    > ><...>
    > >c) has been lawfully admitted to Canada for permanent residence, has not
    > >ceased since such admission to be a permanent resident pursuant to section
    > >24 of the Immigration Act, and has, within the four years immediately
    > >preceding the date of his application, accumulated at least three years of
    > >residence in Canada
    > ><...>
    > >----------------------------------------------------------------------------
    > >-------
    > >
    > >In the "Interpretation" section the same act states pretty clearly:
    > >
    > >----------------------------------------------------------------------------
    > >-------
    > >2(b) a person who is lawfully present and entitled to permanently reside in
    > >Canada is deemed to have been lawfully admitted to Canada for permanent
    > >residence
    > >----------------------------------------------------------------------------
    > >-------
    > >
    > >Pay attention to the words "who is lawfully present".
    > >
    > >And of course everyone should remember that application guides or
    > >instructions are only that, nothing more, and CIC clearly states in such
    > >guides/instructions that they are not the law and all legal questions should
    > >be referred to the Act and it's Regulations.
    > >
    > >And as Rich said - CIC when designing forms and guides assumed that law is
    > >clear to applicant and that applicant is "obviously" present in Canada.
    > >
    > >--
    > >
    > >../..
    > >
    > >Andrew Miller
    > >Immigration Consultant
    > >Vancouver, British Columbia
    > >email: [email protected]
    > >(delete REMOVE from the above address before sending email)
    >
    > This is not intended to be legal advice in any jurisdiction
 
Old Sep 17th 2003, 12:44 pm
  #20  
Andrew Miller
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Wrong. PR must meet all 3 requirements prior to applying for citizenship and
then continue maintaining PR status until citizenship is granted.

--

../..

Andrew Miller
Immigration Consultant
Vancouver, British Columbia
email: [email protected]
(delete REMOVE from the above address before sending email)
________________________________


"Tom" <[email protected]> wrote in message
news:[email protected]...
    > There are three conditions for residence in respect of applying for
    > Canadian citizenship. They are:
    > 1. Admission to Canada as a permanent resident;
    > 2. Retain permanent resident status; and
    > 3. Accumulate a specified period of residence in Canada.
    > NOW the emphasis is on 'Retain PR status' i.e. while applying for
    > Canadian citizenship until receiving the Canadian citizenship card.
    > The Canadian Citizenship Act stipulates that, an applicant must not
    > lose permanent resident status at any time before being granted
    > Canadian citizenship. What this means is, if an applicant meets the
    > residency obligation/requirements as mentioned in the IRPA i.e. 2 out
    > 5 years rule, he/she is eligible to apply as well as to grant Canadian
    > citizenship after oath ceremony. HTH. Tom.
    > [email protected] (JAJ) wrote in message
news:<[email protected]>...
    > > The observation I would make is that anyone thinking of leaving Canada
    > > just after applying for Canadian citizenship, or submitting an
    > > application from outside Canada, should hire an experienced
    > > professional *before* making any decisions.
    > >
    > > At the very least, the law seems to leave a few grey areas, which
    > > means it's not going to be a do-it-yourself job if you are serious
    > > about getting approved.
    > >
    > > Jeremy
    > >
    > > >On Fri, 05 Sep 2003 22:54:24 GMT, "Andrew Miller"
<[email protected]> wrote:
    > > >Citizenship Act states that:
    > > >
    > >
    >---------------------------------------------------------------------------
-
    > > >-------
    > > >5. (1) The Minister shall grant citizenship to any person who
    > > >
    > > ><...>
    > > >c) has been lawfully admitted to Canada for permanent residence, has
not
    > > >ceased since such admission to be a permanent resident pursuant to
section
    > > >24 of the Immigration Act, and has, within the four years immediately
    > > >preceding the date of his application, accumulated at least three years
of
    > > >residence in Canada
    > > ><...>
    > >
    >---------------------------------------------------------------------------
-
    > > >-------
    > > >
    > > >In the "Interpretation" section the same act states pretty clearly:
    > > >
    > >
    >---------------------------------------------------------------------------
-
    > > >-------
    > > >2(b) a person who is lawfully present and entitled to permanently
reside in
    > > >Canada is deemed to have been lawfully admitted to Canada for permanent
    > > >residence
    > >
    >---------------------------------------------------------------------------
-
    > > >-------
    > > >
    > > >Pay attention to the words "who is lawfully present".
    > > >
    > > >And of course everyone should remember that application guides or
    > > >instructions are only that, nothing more, and CIC clearly states in
such
    > > >guides/instructions that they are not the law and all legal questions
should
    > > >be referred to the Act and it's Regulations.
    > > >
    > > >And as Rich said - CIC when designing forms and guides assumed that law
is
    > > >clear to applicant and that applicant is "obviously" present in Canada.
    > > >
    > > >--
    > > >
    > > >../..
    > > >
    > > >Andrew Miller
    > > >Immigration Consultant
    > > >Vancouver, British Columbia
    > > >email: [email protected]
    > > >(delete REMOVE from the above address before sending email)
    > >
    > > This is not intended to be legal advice in any jurisdiction
 
Old Sep 17th 2003, 5:28 pm
  #21  
Rich Wales
Guest
 
Posts: n/a
Default Re: citizenship and maple card

"Tom" wrote:

> A clarification for my previous post. The onus is on the
> applicant to prove to CIC that PR status was maintained
> and that the applicant maintained an ACTUAL RESIDENCE in
> CANADA during periods away from Canada.

But AFAIK, there isn't anything in the =CURRENT= immigration law
(the Immigration and Refugee Protection Act) which requires a
permanent resident to "maintain an actual residence in Canada"
as a condition for maintaining PR status.

The old Immigration Act's concept of not abandoning Canada
as one's primary place of residence has, as I understand it,
been =COMPLETELY= replaced by the new, simpler, cut-and-dried
requirement of being physically present in Canada during at
least 730 days out of the preceding five years (or, in the case
of someone who has been a PR for less than five years, the
requirement to have been physically present in Canada for long
enough to be able to satisfy this 730-day minimum presence
requirement once one has been a PR for five years). As far as
I can tell, a PR can now completely =MOVE= from Canada -- even
to the point of becoming a PR of another country -- and as long
as he/she comes back and spends enough time in Canada to satisfy
the 730-days-in-five-years requirement, he/she will still legally
be a Canadian PR.

Getting back to the requirements for citizenship: As long as an
applicant for citizenship still has valid PR status (as defined
by the Immigration and Refugee Protection Act) when he/she is
sworn in as a citizen -- and as long as he/she had accumulated
at least three years of Canadian "residence" in the four years
immediately before the filing of his/her application for citi-
zenship -- I'm not aware of any other current provision in the
Citizenship Act that requires any amount of "residence" or
"presence" in Canada above and beyond what the current immi-
gration law requires in order for one to maintain PR status.

In particular, please note that paragraph 5(1)(c) of the Citizenship
Act was amended (by the same bill which gave rise to the new Immi-
gration and Refugee Protection Act) so that it no longer uses the
magic phrase "lawfully admitted to Canada for permanent residence".
This, in turn, means that paragraph 2(2)(b) of the Citizenship Act
("a person who is lawfully present and entitled to permanent reside
in Canada is deemed to have been lawfully admitted to Canada for
permanent residence") is apparently no longer relevant to the ques-
tion of whether someone is eligible to become a citizen.

If I'm wrong, I would be grateful if someone could point out which
specific parts of the =CURRENT= statutes and regulations I'm not
aware of or not understanding correctly.

Rich Wales [email protected] http://www.richw.org
*NOTE: I've lived in both Canada and the US and have dual citizenship.
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.
 
Old Sep 18th 2003, 5:15 am
  #22  
David Tew
Guest
 
Posts: n/a
Default Re: citizenship and maple card

[email protected] (Rich Wales) wrote in message news:<[email protected] rg>...


    > Getting back to the requirements for citizenship: As long as an
    > applicant for citizenship still has valid PR status (as defined
    > by the Immigration and Refugee Protection Act) when he/she is
    > sworn in as a citizen -- and as long as he/she had accumulated
    > at least three years of Canadian "residence" in the four years
    > immediately before the filing of his/her application for citi-
    > zenship -- I'm not aware of any other current provision in the
    > Citizenship Act that requires any amount of "residence" or
    > "presence" in Canada above and beyond what the current immi-
    > gration law requires in order for one to maintain PR status.

I guess I'm not completely clear on what you're saying here, since
IRPA allows days spent travelling abroad with a Canadian citizen
spouse to be counted toward days in Canada, while the Citizenship Act
requires that an applicant be physically present in Canada for three
years before applying for citizenship.
 
Old Sep 18th 2003, 7:01 am
  #23  
Rich Wales
Guest
 
Posts: n/a
Default Re: citizenship and maple card

David Tew wrote:

> I guess I'm not completely clear on what you're saying
> here, since IRPA allows days spent travelling abroad
> with a Canadian citizen spouse to be counted toward
> days in Canada, while the Citizenship Act requires
> that an applicant be physically present in Canada for
> three years before applying for citizenship.

All this means is that the requirements for applying for citi-
zenship are more demanding than the requirements for retaining
permanent resident status.

If you spend significant time travelling with a Canadian spouse,
you can keep your permanent resident status, but you probably
won't be able to apply for citizenship (yet). The Citizenship
Act simply requires =more= than simply having been a permanent
resident for three years before one can apply for citizenship.

So, there really isn't any conflict here; it's just that there
are two separate laws dealing with two separate (albeit related)
subjects.

I will also say again (though some people may criticize me for
doing so) that the =current= Citizenship Act, as interpreted by
rulings of the courts, does =not= define "residence in Canada"
as referring exclusively to days spent literally, physically in
Canada. It's my understanding that CIC is on questionable legal
ground by pushing this narrow definition of "residence", because
there have been numerous Federal Court cases in which immigrants
who spent lots of time outside Canada were still held to have
established themselves as true residents of Canada and entitled
to apply for citizenship despite lengthy physical absences.

On the other hand, it's probably not worth the effort in most
cases to fight CIC in the courts over this issue. Even if you
won (as you very well might eventually do), the extra time you
would have spent in the legal battle would probably have been
far better spent simply by being literally, physically in Canada
so as to satisfy CIC's overly strict definition of "residence in
Canada".

The new citizenship legislation which the government is currently
trying to get enacted in Parliament (Bill C-18) does, to be sure,
expliclty propose to redefine "residence" for citizenship appli-
cation purposes as requiring physical presence in Canada. However,
this is still only a bill, not a law; it has been sitting in the
House of Commons' citizenship and immigration committee for almost
a year now, and it's really anyone's guess when -- or even whether
-- it will complete the legislative process and receive royal assent.

Rich Wales [email protected] http://www.richw.org
*NOTE: I've lived in both Canada and the US and have dual citizenship.
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.
 
Old Sep 18th 2003, 7:27 am
  #24  
Andrew Miller
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Rich,

Many recent Federal Court decisions disagree with your assessment. Please
review cases decided in 2002 and 2003 and you'll see that in many (if not
most) cases filed court upheld citizenship refusals based on not
accumulating 1,095 days of residence in Canada. Only in some cases where the
center of applicant's life was surely in Canada (with primary residence,
spouse, kids attending school here, etc.) court squashed such refusals. So,
it is not that simple as one could understand from your post.

--

../..

Andrew Miller
Immigration Consultant
Vancouver, British Columbia
email: [email protected]
(delete REMOVE from the above address before sending email)
________________________________



"Rich Wales" <[email protected]> wrote in message
news:[email protected]...
    > David Tew wrote:
    > > I guess I'm not completely clear on what you're saying
    > > here, since IRPA allows days spent travelling abroad
    > > with a Canadian citizen spouse to be counted toward
    > > days in Canada, while the Citizenship Act requires
    > > that an applicant be physically present in Canada for
    > > three years before applying for citizenship.
    > All this means is that the requirements for applying for citi-
    > zenship are more demanding than the requirements for retaining
    > permanent resident status.
    > If you spend significant time travelling with a Canadian spouse,
    > you can keep your permanent resident status, but you probably
    > won't be able to apply for citizenship (yet). The Citizenship
    > Act simply requires =more= than simply having been a permanent
    > resident for three years before one can apply for citizenship.
    > So, there really isn't any conflict here; it's just that there
    > are two separate laws dealing with two separate (albeit related)
    > subjects.
    > I will also say again (though some people may criticize me for
    > doing so) that the =current= Citizenship Act, as interpreted by
    > rulings of the courts, does =not= define "residence in Canada"
    > as referring exclusively to days spent literally, physically in
    > Canada. It's my understanding that CIC is on questionable legal
    > ground by pushing this narrow definition of "residence", because
    > there have been numerous Federal Court cases in which immigrants
    > who spent lots of time outside Canada were still held to have
    > established themselves as true residents of Canada and entitled
    > to apply for citizenship despite lengthy physical absences.
    > On the other hand, it's probably not worth the effort in most
    > cases to fight CIC in the courts over this issue. Even if you
    > won (as you very well might eventually do), the extra time you
    > would have spent in the legal battle would probably have been
    > far better spent simply by being literally, physically in Canada
    > so as to satisfy CIC's overly strict definition of "residence in
    > Canada".
    > The new citizenship legislation which the government is currently
    > trying to get enacted in Parliament (Bill C-18) does, to be sure,
    > expliclty propose to redefine "residence" for citizenship appli-
    > cation purposes as requiring physical presence in Canada. However,
    > this is still only a bill, not a law; it has been sitting in the
    > House of Commons' citizenship and immigration committee for almost
    > a year now, and it's really anyone's guess when -- or even whether
    > -- it will complete the legislative process and receive royal assent.
    > Rich Wales [email protected] http://www.richw.org
    > *NOTE: I've lived in both Canada and the US and have dual citizenship.
    > *DISCLAIMER: I am not a lawyer, professional immigration consultant,
    > or consular officer. My comments are for discussion purposes only and
    > are not intended to be relied upon as legal or professional advice.
 
Old Sep 18th 2003, 11:02 pm
  #25  
Tom
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Andrew,

"WRONG" I don't think so.

"PR must meet all 3 requirements prior to applying for citizenship and
then continue maintaining PR status until citizenship is granted". You
are right, BUT I believe I wrote the same thing especially in the
second paragraph i.e. "NOW the emphasis is on 'Retain PR status' i.e.
while applying for Canadian citizenship until receiving the Canadian
citizenship card" AND in the first sentence of the third paragraph
i.e. "The Canadian Citizenship Act stipulates that, an applicant must
not lose permanent resident status at any time before being granted
Canadian citizenship".

I touched 'meeting the residency obligation' issue only because the
original poster asked about it. I am sure you are aware that there are
other ways that a PR can lose his/her PR status besides meeting
residency obligation/requirements as mentioned in the IRPA. However,
most PR's lost their PR status by NOT fulfilling the residency
requirements.

To clarify my point, I would like to give you an example: Say a PR
physically reside in Canada for 1050 days (less than three years) and
after that move to US and reside there for 700 days (little less than
two years). He/she is meeting residency obligation as far as IRPA is
concerned BUT he/she is not eligible to applying for Canadian
citizenship until he/she must have accumulated three years (1,095
days) of physical presence in Canada in the four years preceding the
date of application (other than exceptional circumstances).

Again, prior to applying for Canadian citizenship, a PR must meet all
3 conditions/requirements and not ONLY one condition i.e. 'retaining
PR status'. Furthermore, the PR must be residing/physically living in
Canada prior to applying for Canadian citizenship. However, AFAIK,
after applying and during the process of Canadian citizenship, a PR
has to meet only ONE condition i.e. 'maintaining PR status under IRPA.

Secondly, PR has to appear (if applicable) in the citizenship test
within Canada as well as for oath ceremony within Canada or in rare
cases has to appear in front of citizenship judge, again within
Canada. Tom


"Andrew Miller" <[email protected]> wrote in message news:<Gd7ab.35041$Cu3.2161@edtnps84>...
    > Wrong. PR must meet all 3 requirements prior to applying for citizenship and
    > then continue maintaining PR status until citizenship is granted.
    >
    > --
    >
    > ../..
    >
    > Andrew Miller
    > Immigration Consultant
    > Vancouver, British Columbia
    > email: [email protected]
    > (delete REMOVE from the above address before sending email)
    > ________________________________
    >
    >
    > "Tom" <[email protected]> wrote in message
    > news:[email protected]...
    > > There are three conditions for residence in respect of applying for
    > > Canadian citizenship. They are:
    > >
    > > 1. Admission to Canada as a permanent resident;
    > > 2. Retain permanent resident status; and
    > > 3. Accumulate a specified period of residence in Canada.
    > >
    > > NOW the emphasis is on 'Retain PR status' i.e. while applying for
    > > Canadian citizenship until receiving the Canadian citizenship card.
    > >
    > > The Canadian Citizenship Act stipulates that, an applicant must not
    > > lose permanent resident status at any time before being granted
    > > Canadian citizenship. What this means is, if an applicant meets the
    > > residency obligation/requirements as mentioned in the IRPA i.e. 2 out
    > > 5 years rule, he/she is eligible to apply as well as to grant Canadian
    > > citizenship after oath ceremony. HTH. Tom.
    > >
    > > [email protected] (JAJ) wrote in message
    > news:<[email protected]>...
    > > > The observation I would make is that anyone thinking of leaving Canada
    > > > just after applying for Canadian citizenship, or submitting an
    > > > application from outside Canada, should hire an experienced
    > > > professional *before* making any decisions.
    > > >
    > > > At the very least, the law seems to leave a few grey areas, which
    > > > means it's not going to be a do-it-yourself job if you are serious
    > > > about getting approved.
 
Old Sep 18th 2003, 11:36 pm
  #26  
Tom
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Rich,

For Canadian citizenship purposes, the 'RESIDENCE' is/was a
questionable issue.

The current Canadian citizenship Act stipulates the manner in which
residence is to be calculated, it does not define what constitutes
"residence" or "being a resident in Canada". In past, 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 this context, I would like to refer Madame Justice Reed
& The Associate Chief Justice Thurlow decisions.

Under the current Citizenship Act, other than EXCEPTIONAL
circumstances (the six questions determinative test set out by Madame
Justice Reed), 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.

I would like to refer Madame Justice Reed's question # 6 which states
as "What is the quality of the connection with Canada: is it more
substantial than that which exists with any other country?"

Secondly, I would like to refer 'Majority Rule' (as mentioned in the
Canadian citizenship manual for citizenship officers). Here is the
extract from it: "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".

However, I agree with your point of view especially the amendment in 5
(1) (c). In my previous post I mentioned it that if a PR maintains
his/her PR status that includes meeting residency obligations then
he/she is eligible to apply as well as to get the citizenship card (of
course prior to applying, the applicant must fulfills the other two
conditions too). Also, I am aware when an applicant's immigration
status (including meeting the residency obligation) is in doubt, the
Canadian Citizenship officer will refer the case to CIC Immigration
division and an Immigration officer will make a decision on it.
Obviously, the Immigration officer will apply the IRPA and not the old
Canadian Immigration Act. He/She will determine the Immigration status
of the applicant according to IRPA including the 2 out 5-year
residency rule. Again, prior to applying for Canadian citizenship, a
PR must meet all 3 conditions/requirements that includes 1095 days out
of last 4 years rule.

Last but not the least, we should not ignore CIC Canadian citizenship
policies, as the current Citizenship Act and its regulations are not
quite clear about 'RESIDENCE'. I hope they will harmonize new proposed
Canadian citizenship act and its regulations with IRPA. Tom

PS: IRPA & the citizenship act are two different animals though both
live under one roof.

****************
* DISCLAIMER: *
****************

My all posts are for discussion purposes only and cannot be treated as
legal advice. For legal information, please refer to the Immigration
and Refugee Protection Act (IRPA) and the Canadian Citizenship Act
BEFORE making any decisions.

[email protected] (Rich Wales) wrote in message news:<[email protected] rg>...
    > "Tom" wrote:
    >
    > > A clarification for my previous post. The onus is on the
    > > applicant to prove to CIC that PR status was maintained
    > > and that the applicant maintained an ACTUAL RESIDENCE in
    > > CANADA during periods away from Canada.
    >
    > But AFAIK, there isn't anything in the =CURRENT= immigration law
    > (the Immigration and Refugee Protection Act) which requires a
    > permanent resident to "maintain an actual residence in Canada"
    > as a condition for maintaining PR status.
    >
    > The old Immigration Act's concept of not abandoning Canada
    > as one's primary place of residence has, as I understand it,
    > been =COMPLETELY= replaced by the new, simpler, cut-and-dried
    > requirement of being physically present in Canada during at
    > least 730 days out of the preceding five years (or, in the case
    > of someone who has been a PR for less than five years, the
    > requirement to have been physically present in Canada for long
    > enough to be able to satisfy this 730-day minimum presence
    > requirement once one has been a PR for five years). As far as
    > I can tell, a PR can now completely =MOVE= from Canada -- even
    > to the point of becoming a PR of another country -- and as long
    > as he/she comes back and spends enough time in Canada to satisfy
    > the 730-days-in-five-years requirement, he/she will still legally
    > be a Canadian PR.
    >
    > Getting back to the requirements for citizenship: As long as an
    > applicant for citizenship still has valid PR status (as defined
    > by the Immigration and Refugee Protection Act) when he/she is
    > sworn in as a citizen -- and as long as he/she had accumulated
    > at least three years of Canadian "residence" in the four years
    > immediately before the filing of his/her application for citi-
    > zenship -- I'm not aware of any other current provision in the
    > Citizenship Act that requires any amount of "residence" or
    > "presence" in Canada above and beyond what the current immi-
    > gration law requires in order for one to maintain PR status.
    >
    > In particular, please note that paragraph 5(1)(c) of the Citizenship
    > Act was amended (by the same bill which gave rise to the new Immi-
    > gration and Refugee Protection Act) so that it no longer uses the
    > magic phrase "lawfully admitted to Canada for permanent residence".
    > This, in turn, means that paragraph 2(2)(b) of the Citizenship Act
    > ("a person who is lawfully present and entitled to permanent reside
    > in Canada is deemed to have been lawfully admitted to Canada for
    > permanent residence") is apparently no longer relevant to the ques-
    > tion of whether someone is eligible to become a citizen.
    >
    > If I'm wrong, I would be grateful if someone could point out which
    > specific parts of the =CURRENT= statutes and regulations I'm not
    > aware of or not understanding correctly.
    >
    > Rich Wales [email protected] http://www.richw.org
    > *NOTE: I've lived in both Canada and the US and have dual citizenship.
    > *DISCLAIMER: I am not a lawyer, professional immigration consultant,
    > or consular officer. My comments are for discussion purposes only and
    > are not intended to be relied upon as legal or professional advice.
 
Old Sep 19th 2003, 3:26 am
  #27  
Andrew Miller
Guest
 
Posts: n/a
Default Re: citizenship and maple card

So, it seems that we do agree, don't we?

My reply (word "Wrong") was aimed at your statement starting with "NOW the
emphasis in on "Retain PR status"..." - as you probably learned from this
forum there is a huge number of readers who will simply misinterpret
anything what is not absolutely clearly stated the way they like it to see
to benefit them. Thus statement like yours was for sure by many of such
readers immediately interpreted as "all I need to do is to meet 2/5 and I
can apply for citizenship" - exactly as you can see in several posts in past
few days arguing or asking about this topic.

--

../..

Andrew Miller
Immigration Consultant
Vancouver, British Columbia
email: [email protected]
(delete REMOVE from the above address before sending email)
________________________________


"Tom" <[email protected]> wrote in message
news:[email protected]...
    > Andrew,
    > "WRONG" I don't think so.
    > "PR must meet all 3 requirements prior to applying for citizenship and
    > then continue maintaining PR status until citizenship is granted". You
    > are right, BUT I believe I wrote the same thing especially in the
    > second paragraph i.e. "NOW the emphasis is on 'Retain PR status' i.e.
    > while applying for Canadian citizenship until receiving the Canadian
    > citizenship card" AND in the first sentence of the third paragraph
    > i.e. "The Canadian Citizenship Act stipulates that, an applicant must
    > not lose permanent resident status at any time before being granted
    > Canadian citizenship".
    > I touched 'meeting the residency obligation' issue only because the
    > original poster asked about it. I am sure you are aware that there are
    > other ways that a PR can lose his/her PR status besides meeting
    > residency obligation/requirements as mentioned in the IRPA. However,
    > most PR's lost their PR status by NOT fulfilling the residency
    > requirements.
    > To clarify my point, I would like to give you an example: Say a PR
    > physically reside in Canada for 1050 days (less than three years) and
    > after that move to US and reside there for 700 days (little less than
    > two years). He/she is meeting residency obligation as far as IRPA is
    > concerned BUT he/she is not eligible to applying for Canadian
    > citizenship until he/she must have accumulated three years (1,095
    > days) of physical presence in Canada in the four years preceding the
    > date of application (other than exceptional circumstances).
    > Again, prior to applying for Canadian citizenship, a PR must meet all
    > 3 conditions/requirements and not ONLY one condition i.e. 'retaining
    > PR status'. Furthermore, the PR must be residing/physically living in
    > Canada prior to applying for Canadian citizenship. However, AFAIK,
    > after applying and during the process of Canadian citizenship, a PR
    > has to meet only ONE condition i.e. 'maintaining PR status under IRPA.
    > Secondly, PR has to appear (if applicable) in the citizenship test
    > within Canada as well as for oath ceremony within Canada or in rare
    > cases has to appear in front of citizenship judge, again within
    > Canada. Tom
    > "Andrew Miller" <[email protected]> wrote in message
news:<Gd7ab.35041$Cu3.2161@edtnps84>...
    > > Wrong. PR must meet all 3 requirements prior to applying for citizenship
and
    > > then continue maintaining PR status until citizenship is granted.
    > >
    > > --
    > >
    > > ../..
    > >
    > > Andrew Miller
    > > Immigration Consultant
    > > Vancouver, British Columbia
    > > email: [email protected]
    > > (delete REMOVE from the above address before sending email)
    > > ________________________________
    > >
    > >
    > > "Tom" <[email protected]> wrote in message
    > > news:[email protected]...
    > > > There are three conditions for residence in respect of applying for
    > > > Canadian citizenship. They are:
    > > >
    > > > 1. Admission to Canada as a permanent resident;
    > > > 2. Retain permanent resident status; and
    > > > 3. Accumulate a specified period of residence in Canada.
    > > >
    > > > NOW the emphasis is on 'Retain PR status' i.e. while applying for
    > > > Canadian citizenship until receiving the Canadian citizenship card.
    > > >
    > > > The Canadian Citizenship Act stipulates that, an applicant must not
    > > > lose permanent resident status at any time before being granted
    > > > Canadian citizenship. What this means is, if an applicant meets the
    > > > residency obligation/requirements as mentioned in the IRPA i.e. 2 out
    > > > 5 years rule, he/she is eligible to apply as well as to grant Canadian
    > > > citizenship after oath ceremony. HTH. Tom.
    > > >
    > > > [email protected] (JAJ) wrote in message
    > > news:<[email protected]>...
    > > > > The observation I would make is that anyone thinking of leaving
Canada
    > > > > just after applying for Canadian citizenship, or submitting an
    > > > > application from outside Canada, should hire an experienced
    > > > > professional *before* making any decisions.
    > > > >
    > > > > At the very least, the law seems to leave a few grey areas, which
    > > > > means it's not going to be a do-it-yourself job if you are serious
    > > > > about getting approved.
 
Old Sep 26th 2003, 5:40 am
  #28  
Rich Wales
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Andrew Miller wrote:

> Rich, Many recent Federal Court decisions disagree with your
> assessment. Please review cases decided in 2002 and 2003
> and you'll see that in many (if not most) cases filed court
> upheld citizenship refusals based on not accumulating 1,095
> days of residence in Canada.

By any chance, do you have cites for some of these decisions?

I managed to find the following cases on my own, most of which
seemed in fact to be in favour of appellants who were trying to
get citizenship with less than 1,095 days of literal presence in
Canada:

Badjeck v. Canada (Minister of Citizenship and Immigration),
[2002] 2 F.C. D23

Lam v. Canada (Minister of Citizenship and Immigration),
[1999] 2 F.C. D63

Yen (Re), [1998] 1 F.C. D30

Koo (Re), [1993] 1 F.C. 286

As I've said before, I will agree with the point you're trying to
make, at least to the extent that even if someone without a full
1,095 days of literal Canadian presence could eventually manage
to gain Canadian citizenship via a favourable court ruling, the
time and money wasted in such a fight would almost always be far
better spent simply by spending some more time in Canada and then
applying for citizenship after one had clearly met the residence
requirement of the law beyond any possible doubt.

Rich Wales [email protected] http://www.richw.org
*NOTE: I've lived in both Canada and the US and have dual citizenship.
*DISCLAIMER: I am not a lawyer, professional immigration consultant,
or consular officer. My comments are for discussion purposes only and
are not intended to be relied upon as legal or professional advice.
 
Old Sep 26th 2003, 7:44 am
  #29  
Pmm
Guest
 
Posts: n/a
Default Re: citizenship and maple card

Hi Rich

"Rich Wales" <[email protected]> wrote in message
news:[email protected]...
    > Andrew Miller wrote:
    > > Rich, Many recent Federal Court decisions disagree with your
    > > assessment. Please review cases decided in 2002 and 2003
    > > and you'll see that in many (if not most) cases filed court
    > > upheld citizenship refusals based on not accumulating 1,095
    > > days of residence in Canada.
    > By any chance, do you have cites for some of these decisions?
    > I managed to find the following cases on my own, most of which
    > seemed in fact to be in favour of appellants who were trying to
    > get citizenship with less than 1,095 days of literal presence in
    > Canada:
    > Badjeck v. Canada (Minister of Citizenship and Immigration),
    > [2002] 2 F.C. D23
    > Lam v. Canada (Minister of Citizenship and Immigration),
    > [1999] 2 F.C. D63
    > Yen (Re), [1998] 1 F.C. D30
    > Koo (Re), [1993] 1 F.C. 286
    > As I've said before, I will agree with the point you're trying to
    > make, at least to the extent that even if someone without a full
    > 1,095 days of literal Canadian presence could eventually manage
    > to gain Canadian citizenship via a favourable court ruling, the
    > time and money wasted in such a fight would almost always be far
    > better spent simply by spending some more time in Canada and then
    > applying for citizenship after one had clearly met the residence
    > requirement of the law beyond any possible doubt.
    > Rich Wales [email protected] http://www.richw.org
    > *NOTE: I've lived in both Canada and the US and have dual citizenship.
    > *DISCLAIMER: I am not a lawyer, professional immigration consultant,
    > or consular officer. My comments are for discussion purposes only and
    > are not intended to be relied upon as legal or professional advice.

Go to http://decisions.fct-cf.gc.ca/fct/ search for Canada Minister of
Citizenship and Immigration, that way you will get all the cases where the
Minister has appealed a decision. Koo is usually cited in cases where the
applicant has to meet 3 tests if they have less than 1095 days.

PMM
 
Old Sep 26th 2003, 9:10 am
  #30  
Vladimir Menkov
Guest
 
Posts: n/a
Default Re: citizenship and maple card

    >Andrew Miller wrote:
    > > Rich, Many recent Federal Court decisions disagree with your
    > > assessment. Please review cases decided in 2002 and 2003
    > > and you'll see that in many (if not most) cases filed court
    > > upheld citizenship refusals based on not accumulating 1,095
    > > days of residence in Canada.

In article <[email protected]> ,
Rich Wales <[email protected]> wrote:
    >By any chance, do you have cites for some of these decisions?

One can read federal court decisions at
http://decisions.fct-cf.gc.ca/fct/
Just enter
"citizenship judge" and 2003
in the search box, with the "this boolean query" selector applied, and
it gives 22+ recent cases.

    >I managed to find the following cases on my own, most of which
    >seemed in fact to be in favour of appellants who were trying to
    >get citizenship with less than 1,095 days of literal presence in
    >Canada:
    >Badjeck v. Canada (Minister of Citizenship and Immigration),
    >[2002] 2 F.C. D23
    >Lam v. Canada (Minister of Citizenship and Immigration),
    >[1999] 2 F.C. D63
    >Yen (Re), [1998] 1 F.C. D30
    >Koo (Re), [1993] 1 F.C. 286

There are indeed plenty of cases when the court either allows the
appeal of CIC (thus overturning the citizenship grant by the
citizenship judge), or dismisses the appeal of an immigrant (thus
upholding the denial of citizenship by the citizenship judge).

Based on the small sample of this year's cases I have loooked at, it
appears to me that most CIC appeals are indeed allowed (and
citizenship, thus, is denied). However, it looks to me that
most of these successful appeals fall into one the two categories:


(a) The court has no trouble agreeing with CIC that the applicant's
life was not centered in Canada -- for example because the deficiency
in physical presence is quite serious. For example the applicant
spent less than 50% of his time in Canada during the 4 years before
the application.

Most cases of successful CIC appeals seem to fall into this category.

(b) The applicant has not established residence in Canada before going
abroad. For example, suppose a person one landed on Jan 1, 1998, left
the country on Jan 15, 1998, came back on July 1, 1998, then stayed in
Canada for 2.5 years and applied for citizenship on Jan 1, 2001. The
applicant is not likely to be granted citizenship: even if the
citizenship judge approves the application, CIC will appeal, and the
federal court will allow the appeal. The court's reasoning is the
following: for for the applicant to be considered "resident" in Canada
while physically away from the country, s/he has to first establish
bona fide residence in Canada -- and that's not possible to do in just
two weeks. Thus his absence in Jan-Jun 1998 cannot be counted as
residence in Canada.

A typical example of (b) is
2003 FCT 226: Canada (Minister of Citizenship and Immigration) v. Barker
http://decisions.fct-cf.gc.ca/fct/2003/2003fct226.html
where the court allowed CIC's appeal against granting citizenship to a
husband and wife who had spent, respectively, 813 and 892 days
in Canada.

Individual Justices' policies on how to judge whether the applicants'
fulfullment of the residence requirement differ. For example, Justice
Pinard repeatedly says:

"In my opinion, actual presence in Canada is by far the most
important factor to be taken into account when assessing whether an
applicant has met the residency requirements of the Act ...

As I have said many times, an extended absence from Canada,
though temporary, during this minimum period of time is
contrary to the spirit of the Act which already allows a
person legally admitted to Canada as a permanent resident not
to reside there for one of the four years preceding the date
of his or her citizenship application."

He then finds that a person who has been in Canada for only 537 days
does not meet the requirement:

2003 FCT 572: Canada (Minister of Citizenship and Immigration) v. Shafiq
http://decisions.fct-cf.gc.ca/fct/2003/2003fct572.html

This forms a typical group (a) case to me.

I would venture a guess that court has allowed almost all of the
recent CIC appeals exactly because they were well-founded, i.e.
clearly fell into groups (a) or (b). I did not see any successful CIC
appeals where the applicants physical presence day count was only a
few months short of 1095, and there was no evidene of type-(b)
situation. (I.e., the absences took place after residence had been
well established). My guess is that CIC knows the current
jurisprudence well enough, and does not usually appeal a citizenship
grant unless they believe the appeal is likely to succeed.


The "day count" statistics will probably be somewhat different if we
look at the other group of cases: those where an immigrant appeals the
denial of citizenship by the citizenship judge. Just like with the CIC
appeal, the court won't override the citizenship judge's decision
unless they see that it's clearly faulty -- but individual applicants
aren't as likely as CIC to figure which decisions have a chance of
successful appeals. Even when an applicant's appeal is allowed, all he
gets is his case being sent to another citizenship judge for
re-consideration.

    >As I've said before, I will agree with the point you're trying to
    >make, at least to the extent that even if someone without a full
    >1,095 days of literal Canadian presence could eventually manage to
    >gain Canadian citizenship via a favourable court ruling, the time and
    >money wasted in such a fight would almost always be far better spent
    >simply by spending some more time in Canada and then applying for
    >citizenship after one had clearly met the residence requirement of
    >the law beyond any possible doubt.

I agree too.

--vladimir
 

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