Updated to June 1999

In this current section we will look at some current issues relating to Citizenship and Returning Resident Premits

Recent Events: Citizenship:

Canadian Citizenship Act. Canada is in the process of introducing a new Citizenship Act. through Bill C-63. Due to successful lobby efforts of the Immigration Lawyers Bar, several changes have been made that will benefit applicants. Current lobby efforts have also succeeded in delaying passing of the new Act and therefore it is unlikely to be proclaimed law before the government's summer recess at the end of June 1999. One of the beneficial changes received is that a person must be present a minimum of 3 years out of 6 years in order to qualify for citizenship, in other words, at least 1095 days in the most recent 6 years. Under the current Citizenship Act, it is 3 years out of 4 years. However in the revised Act, the government is imposing a stricter interpretation of "physical presence", whereby there must be 1095 dyas of physical presence. In the past, many have received citizenship based on "constructive presence", where there is no actual presence in Canada. Recent government policy reflected in the new Act results in an automatic appeal of any case where the application wins citizenship and has not been physically present for at least 50% of the 1095 days. In many of these appeals, the government has won and citizenship is revoked. This reflects a court trend as seen over the past 1.5 years in case law, towards the government's position of a stricter definition of "presence" to be actual physical presence instead of constructive presence. This position ignores the needs of business persons and others who must be out of Canada on a regular basis and who would not meet the requisite of 1095 days. Should the immigrant contemplate being out of Canada during the period of Permanent Residence, obtaining a Returning Resident Permit is one ideal way to help show constructive presence in Canada. It should be noted that arguing constructive presence in a Citizenship Application involves many factors of which holding a Returning Resident Permit is only one factor, albeit, an important factor.

The pending legislation would allow an immigrant to court time legally spent in Canada on a work authorization or student visa prior obtaining permanent residence, at the rate of one half day for each day in Canada, up to a maximum of one year. Therefore, the immigrant could potentially need only a further two years of time in Canada to qualify for Citizenship.

Factors of Concern. The pending legistration would also:
--make changes for the way adopted persons qualify for citizenship;
--apply "knowingly concealing" as the basis for revocation of citizenship through fraud;
--provide for the loss of citizenship to all family members "acquiring" their citizenship through a fraudulent prinicipal applicant.
--be retroactive to the date of introduction of Bill C-63, meaning that all citizenship applications since the introduction of Bill C-63 would be considered under the new legislation.

The Need for Legal Representation:Citizenship Applications:
In many cases, the application is very straightforward and there is no need for legal advice for the applicant, such as when the applicant has not left Canada for lengthy periods during the period of permanent residence. In cases where the person has been out of Canada for lengthy periods legal advice is important in order to maximize the chances of acceptance. Should the Citizenship Application be refused, there are three options: appeal, retry once further time in Canada is accumulated, or do nothing and continue to maintain permanent resident status.


Final Notes
In many cases, upon landing in Canada, an immigrant does not seek further legal advice before departing Canada. Obtaining legal advice as to how to better lay the foundation for a successful RRP application is very important , especially in the current environment where Immigration authorities have become stricter in applying the RRP application rules and regulations. Further, given the current trend in Citizenship law and the proposed revision in Bill C-63 of the Citizenship Act and the strengthening of the demand for actual physical presence, should the immigrant contemplate leaving Canada for multiple brief periods or one or more long periods, there is a greater need to speak to a qualified immigration lawyer about the risks and pitfalls that could later arise. As always, the prospective immigrant, should speak proper and honest legal advice in order that the prospective immigrant does not lose the right to maintain permanent resident status in Canada and/or the right to obtain Canadian citizenship.

FOOTNOTE:
In Fall 1999, Citizenship Bill C-63 died, but current proposals for a new Citizenship Act, include many of the proposed changes set out in C-63. A new Citizensip Act is expected in the year 2000.


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