New Canadian Citizenship Act – What’s Your Intent?

As promised, we will discuss in greater detail one of the biggest problems that the section of the new Citizenship Act, which is not yet in force, will present to applicants for Canadian citizenship. The problems are to be found in S. 3 (C) (c.1) of the new Act, which reads:

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has, subject to the regulations, no unfulfilled conditions under that Act relating to his or her status as a permanent resident and has, since becoming a permanent resident,

 ..................

(c.1) intends, if granted citizenship,

(i) to continue to reside in Canada,

(ii) to enter into, or continue in, employment outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person, or

(iii) to reside with his or her spouse or common-law partner or parent, who is a Canadian citizen or permanent resident and is employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person;

The problem is that the Act compels the applicant, at the time of his/her applying for citizenship, to state that he/she has the intent to “continue to reside in Canada” or to continue to meet the other two requirements.

While the applicant may have every intent to do so at the time that he/she submits the application for Canadian citizenship, he/she may subsequently be required to leave Canada, due to circumstances beyond his/her control.  Furthermore, what happens if the processing of the application takes several months, or  maybe even a year or more, and during that time, an Officer at the Border stops the applicant because he/she has been outside Canada for an extended period of time? Or, what about the situation where once the person is granted citizenship he/she leaves Canada, let us say, for reasons of a lucrative overseas employment opportunity or to study or for whatever otherwise valid reason which could not have been foreseen at the time the application for citizenship was submitted but where a prolonged absence from Canada is required?  What happens if that person approaches a Canadian consulate abroad to, let us say, apply to renew his/her Canadian passport and the authorities  realize that a year or more after he/she became a citizen  moved away from Canada?  What happens in such a situation? How long is this "intent" supposed to last, anyway?

Our guess, despite the assurances otherwise from the Minister, is that in all such and many more similar cases, the Minister will at the minimum investigate the “intent” and possibly move to try to revoke person's citizenship because the Minister will argue that that person in fact made a misrepresentation when he/she applied for citizenship and that he/she in fact did  not intend to continue to reside in Canada at the time the application for Canadian citizenship was submitted.

Therefore,  the Minister will argue that the applicant had made a "false representation" as described in S. 10 of the new Act.

The said section reads:

Revocation by Minister  — fraud, false representation, etc.

10. (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Based on the historical pattern of actions of the Minister in the past several years, we have every reason to suspect that this section will be used extensively, and that the definition of what constitutes a “false representation” will be stretched to the limit. 

We are getting ready for this; we hope that those applying for citizenship are as well. Since the Act is not retroactive, there is a limited window of opportunity for remedy for those who are eligible, by applying for Canadian citizenship as soon as possible, before these sections come into force.

Historically, the movement of Canadian citizens has never been hampered by Immigration controls. The new Citizenship Act, however, seems to have done away with that philosophy, and will, seemingly, create two classes of citizens: those who acquire citizenship by virtue of birth, who will be privileged, and those who acquire citizenship through naturalization, who will be subject to Immigration controls.

ERRORS IN IMMIGRATION PROCESSING

As a firm who handles immigration litigation, one of our long time challenges has been to respond to clients who are told that pursuing litigation of negative decisions by immigration officials is futile. We have always stated that it is not. Citizenship and Immigration Canada (CIC) does make mistakes, and the following article by Nicholas Keung in the Toronto Star -  ‘High error rate’ found in Canada’s immigration processing - proves it.  To read the full article:

 

 http://www.thestar.com/news/immigration/2015/01/05/high_error_rate_found_in_canadas_immigration_processing.html

  

Of particular interest is this quote by a union representative for the CIC employees - “The government keeps changing its policies. It is a challenge to keep up with all the changes that come every other week". We have argued that precise fact before the Federal Court recently. We have long argued that these constant changes to policy are detrimental to the Rule of Law.  It goes against the fundamental Canadian value of good governance, as such changes bring uncertainty and confusion not only for the applicants and counsel, but clearly to those charged with administering the law as well.

  

It has long been a contention of luminary legal scholars such as Joseph Raz and Lon Fuller that such actions are in breach of the Rule of Law, and lead to the failure of legal systems (Lon L. Fuller The Morality of Law (Revised ed., Yale University Press, New Haven, 1969) 33–38). Professor Fuller criticized such government actions and believed that "inconsistent adjudication", failure to properly publicize changes in the law, rules that are hard to understand, retrospective legislation, contradictions in the law, unreasonable demands on the applicants, and inconsistency between the stated intent of legislation and the decisions made by those charged with making decisions under the legislation, all lead to the failure of a legal system. This article makes it clear that many of these criticized government actions seem to be happening with immigration here in Canada. So the question is: despite all of its touted successes, is the system on the way to failure if it keeps on its present course ?

MAJOR CHANGES TO THE CITIZENSHIP ACT

Beginning January 1st, 2015, the application fee to apply for citizenship will increase to $530 for each adult applicant.  Many other changes beyond application fees are being introduced that will have more significant impact on the nature of Canadian citizenship.

In the coming days, we shall post blogs in regard to the major changes that have been made in Canada’s Citizenship law, discuss what we believe the effects of these changes will be. To begin, we will outline some of the changes to be made.  When the law comes into force, to become a Citizen, a Permanent Resident will have to:

·         be physically present in Canada for at least 1,460 ( 4 years)  days during the six years immediately before the date of  the application ( the current requirement is 3 out of 4 years);

·         the applicant must be physically present in Canada for at least 183 days during each of four calendar years within this six years (this bring us back to the  residency requirements of the pre 2002 Immigration Act);

·         Must file a return of income in respect to the four taxation years within the six years; (logically proof of this will have to filed with the application);

·         MUST intend to reside in Canada once he obtained citizenship ( this in our view is a section that is highly problematic and our next blog will deal with it in great detail);

·         The age for which language and knowledge testing will be required will be raised to 65    (meaning that you will be expected to meet the language and knowledge requirements until that age);

·         It should also be noted that the language requirements will have to be met on the date of the application, and not when they call you in, it is our understanding that they will require applicants to submit test results (CELPIP-G, IELTS or TEF with the application);

·         ENFORCMENT will be a major focus. 

o    Grounds for the denial of citizenship for “reasons of national security” will be expanded ( it should be understood that one does not need to have a criminal record to be excluded for “reasons of national security”);

o    Revocation of Citizenship process will be streamlined (we expect that revocations will go up - meaning that they will go after individuals to revoke their citizenship- including we believe due to alleged contravention of the “ intent to reside” provision;

 

All of the above, we believe will have major impact on applicants and will be discussed in greater detail in our future blogs. 

There are also;

-New provisions to address various classes of people who have been left without citizenships due to previous changes in the law.

- Greater ability to share information with other departments (this will facilitate greater and wider investigations of the applications for fraud, misrepresentation etc).

-“allowance for alternative proofs of citizenship including establishing citizenship by electronic means “ .