Difference between Physical Presence and Residence Requirements

[elie72]

Kindly if someone can clarify the difference between Physical Presence and Residence Requirements. I am still confused in the difference between the two.

Many thanks!

 

[PMM]

Hi

Kindly if someone can clarify the difference between Physical Presence and Residence Requirements. I am still confused in the difference between the two.

Many thanks!

1. Canadian citizenship is now a strict physical presence in Canada.

 

[elie72]

Hi




1. Canadian citizenship is now a strict physical presence in Canada.

Thanks PMM, but really I appreciate if you can clarify to me the difference between the two.

Regards,

 

[links18]

"Physical presence" is straightforward: You must be physically present on Canadian soil for at least part of a day, in order for that day to count towards your qualification for citizenship (or to maintain PR status). "Residence" as used in previous versions of the Citizenship Act was murkier: one could be "resident" in Canada on a given day without actually being physically present on Canadian soil. Many felt that this led to certain inconsistencies in determining who qualified for Canadian citizenship, as there was never a precise definition of residence in the Act and there were at least three different judicially elaborated tests that might be applied. Interestingly, now that there is no reference to "residence" in the Act--it appears to be possible (although practically difficult) to qualify for Canadian citizenship without ever being "resident" in Canada, depending on how that concept is defined.

 

[elie72]

"Physical presence" is straightforward: You must be physically present on Canadian soil for at least part of a day, in order for that day to count towards your qualification for citizenship (or to maintain PR status). "Residence" as used in previous versions of the Citizenship Act was murkier: one could be "resident" in Canada on a given day without actually being physically present on Canadian soil. Many felt that this led to certain inconsistencies in determining who qualified for Canadian citizenship, as there was never n precise definition of residence in the Act and there were at least three different judicially elaborated tests that might be applied. Interestingly, now that there is no reference to "residence" in the Act--it appears to be possible (although practically difficult) to qualify for Canadian citizenship without ever being "resident" in Canada, depending on how that concept is defined.

Many thanks links18

 

[ImmiToCanada]

Physical Presence means staying in Canada physically.

Residence Requirements are generally the same as Physical Presence Requirements. Residence Requirements are mandatory for renewal of PR status (2 years of every 5 years) and for citizenship application (which will be 3 years of out of 5 years before application, with up to 1 year convertible from pre-PR Physical Presence, according to when Bill C6 is in effect this fall).

As far as I know, there are several cases in which you can get fulfil Residence Requirements without staying in Canada physically.

1) For the purpose of PR renewal (http://www.cic.gc.ca/english/information/applications/guides/5445ETOC.asp#appendixA)
a. Accompanying a Canadian citizen outside Canada. The Canadian citizen is your spouse, common-law partner or parent if you are a child under 19 years of age.
b. Employment outside Canada.
c. Accompanying a permanent resident outside Canada.

2) For the purpose of citizenship application (the conditions are generally more stringent the the conditions for PR renewal) http://www.canadavisa.com/canada-immigration-discussion-board/threads/difference-between-physical-presence-and-residence-requirements.502668/
a. Employed outside Canada with one of

• Canadian Armed Forces
• federal public administration
• public service of a province or territory

b. Accompanying a family member outside Canada who is employed by one of

• Canadian Armed Forces
• federal public administration
• public service of a province or territory

 

[dpenabill]

The response by links is a good description of the difference.

But PMM's post, nonetheless, sufficiently states what a PR applying for citizenship needs to know: for grant citizenship purposes, a PR needs to meet a strict physical presence requirement, a minimum of 1460 days within six years under current rules, or a minimum of 1095 days within five years under the rules which will come into force pursuant to Bill C-6 sometime this fall.


Some contextual observations:

I more than occasionally refer to the differences described by links. Many of my past references to the residency requirement were indeed about the qualifications for citizenship applicable to applications made prior to June 11, 2015. More recent references, however, are typically intended to clarify or highlight some of the reasons (among others) why prior experiences and anecdotal reports cannot be relied upon to indicate how things now work or will work going forward.

Note, for example, a not-well-known or understood but important aspect of the former residency requirement was that NO days counted, even time after landing, until AFTER the PR established an in-fact residence in Canada (in practice this was not enforced against any applicant who met the strict actual presence test for residency, and thus mostly affected those relying on a qualitative standard). Under a physical presence requirement (4/6 rule or 3/5 rule), as links observed, technically there is no residency requirement at all. (Some practical considerations about this warrant further discussion; see below.)

A key reason for highlighting the difference is to emphasize how definitive, how strict the actual presence requirement is. Under the old 3/4 rule, applicants who made minor errors with the result that their calculation of presence fell short of the 1095 day threshold could not be summarily denied citizenship, but were entitled to have a CJ consider whether to apply a qualitative residency test which would support the grant of citizenship despite falling short of 1095 days of actual presence. For a physical presence requirement there is no similar discretion or flexibility. None. If an applicant makes an error, or even if IRCC concludes some days are not sufficiently proven to be given credit, resulting in the applicant falling short, even if by just ONE day, the application MUST be denied.

There are other aspects in which the difference may have some significance. Many here have been discussing whether time in Canada as a visitor will count for pre-PR credit toward the presence requirement (when the 3/5 rule takes effect). This question loomed larger under the old 3/4 rule residency requirement because some visitors (like a person living with a Canadian sponsoring that person for family class PR) establish an in-fact residence in Canada pending becoming a PR, while many other visitors are indeed merely visiting, and again the old residency requirement did not give credit for any days prior to actually having in-fact residence in Canada. The new 3/5 rule is thus different and one would think that any days the person can prove actual presence in Canada should be given credit, no matter how transitory those days were. (I would not recommend relying on such days, but that is more about the weight of evidence and avoiding non-routine processing -- technically they should count, but as I often emphasize, technicalities are one thing, practicalities are quite another.)



But the importance of maintaining residence, and being able to document residency in Canada, should not be understated or underestimated.

This goes beyond answering the query posed, about the difference between a physical presence versus residency requirement. But there is an important lesson lurking here.

There is a tendency in this forum to place too much emphasis on meeting technical requirements, overlooking the impact and import of less formal elements. Maintaining an in-fact residence looms particularly large in this context. As I noted above, any discussion about residency warrants some discussion about practical considerations.

Make no mistake: unless it appears to IRCC that the applicant for citizenship has in fact been residing in Canada, there is a substantial risk that IRCC will issue RQ and require the applicant to submit proof of residency, as in proof of where in Canada the applicant has resided for all the time the applicant claims to have been present in Canada, for each and every individual month. And if this proof is lacking as to any particular period of time, that could lead IRCC to doubt the applicant's presence. This can be offset by proof of employment at a location in Canada during that time. But if proof of place of residence and employment is lacking for any significant period of time, the application will quite likely be in trouble, at the least bogged down in non-routine processing delays, potentially headed for a Citizenship Judge hearing with the possibility of a negative outcome.

So, while there is no formal or technical residency requirement now that there is a physical presence requirement, proof of residency can still be an important part of the process if, for whatever reason, IRCC decides to question or doubt the applicant's declarations about days present in Canada. After all, if the PR was present in Canada all the years declared, there should be a paper trail of residency to show for that; thus, if in contrast, there is no paper trail of residency corresponding to the years the applicant claims to have been in Canada, that is at least a reason to suspect the applicant may not have really been in Canada during that time.

 

[links18]

Note, for example, a not-well-known or understood but important aspect of the former residency requirement was that NO days counted, even time after landing, until AFTER the PR established an in-fact residence in Canada (in practice this was not enforced against any applicant who met the strict actual presence test for residency, and thus mostly affected those relying on a qualitative standard). Under a physical presence requirement (4/6 rule or 3/5 rule), as links observed, technically there is no residency requirement at all. (Some practical considerations about this warrant further discussion; see below.)

Yes, that is the only thing that gives me some hesitation about saying there is no "residency requirement" anymore, as it is unclear if IRCC would attempt to apply this same rule to physical presence now that there is no other residency requirement. There wouldn't seem to be a legal basis for it now, but not attempting to apply something like this would seem to lead to the rather absurd result that it is possible to qualify for Canadian citizenship without ever being resident in Canada. But perhaps such is the wisdom of Parliament......

But the importance of maintaining residence, and being able to document residency in Canada, should not be understated or underestimated.

This goes beyond answering the query posed, about the difference between a physical presence versus residency requirement. But there is an important lesson lurking here.

There is a tendency in this forum to place too much emphasis on meeting technical requirements, overlooking the impact and import of less formal elements. Maintaining an in-fact residence looms particularly large in this context. As I noted above, any discussion about residency warrants some discussion about practical considerations.

Make no mistake: unless it appears to IRCC that the applicant for citizenship has in fact been residing in Canada, there is a substantial risk that IRCC will issue RQ and require the applicant to submit proof of residency, as in proof of where in Canada the applicant has resided for all the time the applicant claims to have been present in Canada, for each and every individual month. And if this proof is lacking as to any particular period of time, that could lead IRCC to doubt the applicant's presence. This can be offset by proof of employment at a location in Canada during that time. But if proof of place of residence and employment is lacking for any significant period of time, the application will quite likely be in trouble, at the least bogged down in non-routine processing delays, potentially headed for a Citizenship Judge hearing with the possibility of a negative outcome.

So, while there is no formal or technical residency requirement now that there is a physical presence requirement, proof of residency can still be an important part of the process if, for whatever reason, IRCC decides to question or doubt the applicant's declarations about days present in Canada. After all, if the PR was present in Canada all the years declared, there should be a paper trail of residency to show for that; thus, if in contrast, there is no paper trail of residency corresponding to the years the applicant claims to have been in Canada, that is at least a reason to suspect the applicant may not have really been in Canada during that time.

What you say is no doubt good, practical and sensible advice, but in the case of a Canadian PR living in a US border city, it would seem under the current regime: where there is no residency requirement and any part of a day on Canadian soil counts as a day of physical presence, all that is necessary to meet the physical presence requirement for Canadian citizenship would be flag poleing once a day. The CBSA records of an entry each day--provided there is a sufficient buffer to account for any errors--would seem prima facie proof of having met the PP requirement.

But this raises other practical questions: Now that there is no legal requirement to be resident in Canada during the processing period: what does an applicant residing abroad give as their address? If one wants to be completely above board and avoid any misrepresentation where should they say they live? Where would such applications be processed?

 

[dpenabill]

But this raises other practical questions: Now that there is no legal requirement to be resident in Canada during the processing period . . .

I have not engaged much in more recent discussions about whether a PR can apply for citizenship from abroad (even though residency/presence related issues tend to be among my more focused interests). Sure, there are undoubtedly some PRs now abroad, or headed abroad, who did not qualify for citizenship before going abroad but who will qualify when the 3/5 rule takes effect. So, in a sense it is a realistic hypothetical.

But what the law technically, hypothetically allows, can be very different from what is practically feasible. I realize I tend to be a bit overbearing about some things, including pounding on the recognition that technicalities are one thing, practicalities are another. But a lot of posts and points of view expressed in this forum put way too much weight on technicalities, sometimes hyper-technicalities, underestimating the importance and impact of the more practical elements and considerations.

Some examples are more salient than others, but among the more common in the settlement-in-Canada part of this forum, there is the steady stream of PRs who have not settled permanently in Canada, who return to Canada for a time to apply for and obtain a renewed PR card, who are cutting-it-close relative to compliance with the PR Residency Obligation, and they end up here, in the forum, whining whaaaa happened? when IRCC bogs down their PRC application in Secondary Review. Some go so far as to assert that they had "way over the 730 day requirement" because they declared 800 or more days in Canada, despite the fact that even 900 days in Canada amounts to being outside Canada more than in Canada. That signals someone who has not settled permanently in Canada. The purpose of granting someone PR status is so they can settle permanently in Canada. No advanced engineering degree necessary to figure out the blueprint for this scenario.

Getting back to the prospect of a "qualified" PR applying for citizenship while living abroad: the practical hurdles are high and rife with pitfalls without even considering the impression made. Succumbing to temptation to fudge some details (really meaning to make misrepresentations), to minimize or divert negative impressions, will sabotage more than a few. I am not inclined to illuminate ways to make doing this easier, with greater likelihood of success, even though for some the time abroad arises from compelling circumstances and otherwise they are persons sincerely striving to become Canadian citizens consistent with what it really means to be a citizen.

And then getting back to the prospect of qualifying for and obtaining Canadian citizenship without really being a resident of Canada. Technically possible. Sure. The hurdles are higher than high. The pitfalls are many. The logistics are daunting. A person would really have to go way, way out of his way to make this work.

And Canada can probably afford to allow some people to become citizens either of these ways. It is one thing to allow a few rather uncommon persons, outside the planned/desired stream one might say, to obtain Canadian citizenship, versus flaws in the system which could facilitate widespread opportunism and abuse, or even outright fraud.

Moreover, some of the statements made during the final debates about Bill C-6 indicate that Trudeau's government may be overtly embracing those who might be called globalists, overtly encouraging immigrants whose ambitions are tied to global mobility. The opposite of the Harper government agenda, which tended to see those applying-on-the-way-to-the-airport, or who otherwise had plans which were not firmly rooted in geographical Canada, as a problem to be contained if not eliminated.

Nonetheless, the mere possibility that some might be able to manipulate the margins probably doesn't deserve a lot of concern. I do not see this as a four-line highway wide open for opportunists or those otherwise with an agenda to exploit the Canadian immigration system. And in the meantime, there is much which remains to be seen.

 

[links18]

Getting back to the prospect of a "qualified" PR applying for citizenship while living abroad: the practical hurdles are high and rife with pitfalls without even considering the impression made. Succumbing to temptation to fudge some details (really meaning to make misrepresentations), to minimize or divert negative impressions, will sabotage more than a few. I am not inclined to illuminate ways to make doing this easier, with greater likelihood of success, even though for some the time abroad arises from compelling circumstances and otherwise they are persons sincerely striving to become Canadian citizens consistent with what it really means to be a citizen.

And then getting back to the prospect of qualifying for and obtaining Canadian citizenship without really being a resident of Canada. Technically possible. Sure. The hurdles are higher than high. The pitfalls are many. The logistics are daunting. A person would really have to go way, way out of his way to make this work.

Well, I don't think they are really that daunting for a Canadian PR living (legally) in a US border city. Someone will eventually try it.

Moreover, some of the statements made during the final debates about Bill C-6 indicate that Trudeau's government may be overtly embracing those who might be called globalists, overtly encouraging immigrants whose ambitions are tied to global mobility. The opposite of the Harper government agenda, which tended to see those applying-on-the-way-to-the-airport, or who otherwise had plans which were not firmly rooted in geographical Canada, as a problem to be contained if not eliminated.

Well now that is an interesting observation. So this may not even be a mistake or an unintended consequence? They want those globetrotters who can afford to fly back and forth every week to eventually become Canadian? Canada has some interest in global competitiveness to claim its share of these people? That is a big change in worldview if true......