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koluha Posts: 2
Posted On: 3/28/2015
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Hello,
I have a question about the physical presence requirement for citizenship.
I have been a PR since Jan 2012. My wife is Canadian citizen. Because she currently has a job in US, we reside in the US.
Because of that reason I have only accrued 92 days of physical presence in Canada for the past three years. I had also visited Canada before I became a permanent resident.
Can I still apply for Canadian citizenship?
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MelM Posts: 226
Posted On: 3/29/2015
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No - you can't. You need physical presence in Canada to qualify to apply for Canadian citizenship.
The time you spent outside of Canada with your wife can be counted towards keeping your PR status. It cannot be counted towards citizenship - for that you need to actually live here.
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koluha Posts: 2
Posted On: 3/30/2015
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Thank you for your message. I came to this forum through CitizenshiCounts.ca, and on their page regarding citizenship requirements it says that according to current rules there is: "No requirement that you be physically present."
Here is the link:
http://citizenshipcounts.ca/citizenship-act-changes#
Could you comment on that?
No - you can't. You need physical presence in Canada to qualify to apply for Canadian citizenship.
The time you spent outside of Canada with your wife can be counted towards keeping your PR status. It cannot be counted towards citizenship - for that you need to actually live here.
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MelM Posts: 226
Posted On: 3/31/2015
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The web site you've referenced isn't an official web site - but rather a petition that someone has put together. The information about how current laws are applied is extremely misleading. Currently, if you have less than 1095 days of physical presence you must appear in front of a judge to argue why citizenship should be granted even though you don't meet the physical residency requirement. If you are short a handful of days (i.e. less than 5 days) - there's a small chance the judge will approved citizenship (although generally people are refused if they are even 1 days short). In your case, for all practical purposes, you have almost no physical residency days in Canada and you're guaranteed a refusal. There's no chance citizenship will be approved with so few days spent in Canada. You'll be wasting $500.
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PMM Posts: 661
Posted On: 3/31/2015
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Hi
Thank you for your message. I came to this forum through CitizenshiCounts.ca, and on their page regarding citizenship requirements it says that according to current rules there is: "No requirement that you be physically present."
Here is the link:
http://citizenshipcounts.ca/citizenship-act-changes#
Could you comment on that?
No - you can't. You need physical presence in Canada to qualify to apply for Canadian citizenship.
The time you spent outside of Canada with your wife can be counted towards keeping your PR status. It cannot be counted towards citizenship - for that you need to actually live here.
1. There are 3 tests that the Citizenship judge can use.
The first test is known as the “Strict Physical Presence” test and was elaborated by the Federal Court in Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259, 62 F.T.R. 122. It is a strict application of the residency requirement whereby the applicant must demonstrate actual physical presence in Canada for 1095 days during the 4 year period immediately preceding the date of application. Mostly used these days.
Re: Papadogiorgakis [1978] 2 F.C. 208 (TD). Under this test, residency is determined by “[…] the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.” Physical presence in Canada is not essential provided that the landed immigrant has established and maintained throughout the three year period in question a “pied-à-terre” in Canada and has the clear intention to live in this country. Under this test, an applicant for citizenship has been deemed to meet the residency requirement despite having spent only 79 days in the country during the 4 years prior to applying for citizenship.
Re Koo [1993] 1 F.C. 286, is a qualitative analysis of the applicant’s ties to Canada and is the one most often followed by citizenship judges. In order to ascertain whether an applicant has centralized his or her mode of existence in Canada, a number of issues are examined by the judge, including:
Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship;
Where are the applicant's immediate family and dependants resident;
Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country;
What is the extent of the physical absences;
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;
What is the quality of the connection with Canada: is it more substantial than that which exists with any other country.
Note that the judge can use any of the 3 tests, but in probably 90% plus actual physical presence will be used, and you don't have a say as to which test will be used.
These tests will be eliminated when the residency section is implemented of the new Citizenship Act. Strict physical presence will only be used for the 4 years out of 6 years requirement, and you have to resided in Canada for 183 days for 4 of those years.
PMM
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Moderator Moderator Posts: 4142
Posted On: 3/31/2015
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Hello,
Thanks for sharing your inquiry regarding that statement with us.
koluha and MelM, regarding the statement,
"No requirement that resident be physically present;"
the CitizenshipCounts.ca is a website that is funded by Citizenship and Immigration Canada.
The CitizenshipCounts.ca website has based their content on the information found on the Citizenship and Immigration Canada website.
The Citizenship and Immigration Canada website actually includes the exact same statement "No requirement that resident be physically present;", in their own Strengthening Canadian Citizenship Act: A comparative before and after view of the changes to the Citizenship Act chart.
Regarding the "No requirement that resident be physically present;", you can find some further clarification in this Changes to Canada's Citizenship Act article.
Here is an excerpt,
Significantly, “residency” was not necessarily defined as “physical presence” prior to these new amendments.
[...] the pre-existing legislation gave citizenship judges’ discretion to grant citizenship in deserving cases based on “establishment in Canada” as opposed to “physical presence” alone. The new legislation eliminates this discretionary authority to equate “residency” with “establishment in Canada”. Citizenship will now only be granted if the residency requirement is met by way of physical presence.
The only exceptions to the physical residence requirement are related to those who are employed outside Canada by the Canadian Armed Forces, the federal public administration, or the public service of a province, or who intend to reside with a spouse or parent who is employed in those capacities.
Those exceptions are listed in Section 5 (1.1) of the Citizenship Act time outside Canada will only be counted as equivalent to one day of residence in Canada for Citizenship purposes in this circumstance,
(1.1) Any day during which an applicant for citizenship resided with the applicant’s spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the federal public administration or the public service of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).
As stated by PMM and in the Changes to Canada's Citizenship Act article by The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP,
The new legislation eliminates this discretionary authority to equate “residency” with “establishment in Canada”. Citizenship will now only be granted if the residency requirement is met by way of physical presence.
I hope this information is helpful. Please let us know if you have further questions and if there is any follow up to your question/situation.
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Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
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