There is no question about whether days spent in Canada with visitor status will entitled to the half-day credit under the new rules, when the new rules take effect. They will be entitled to credit so long as they are within five years of the day the application is made . . . subject to
proving status and actual presence.
The real question is if and when a prospective applicant should rely on credit for those days.
The real issue is to what extent, and when, will IRCC issue RQ to applicants relying on time in Canada as a visitor.
To be clear, the law revising Section 5.(1) of the
Citizenship Act has been adopted and there is no question about what it states (see
http://www.parl.ca/DocumentViewer/en/42-1/bill/C-6/royal-assent for text of adopted bill and see Section 7 of Bill C-6 which adds Section 1.001 to the
Citizenship Act in particular), no question about what pre-PR time is entitled to credit.
So we do know, for example, that persons in Canada with temporary resident status (in addition to those with protected person status) will be entitled to half-day credit for that time. And we know that temporary resident status
includes visitor status. That is the law which will apply when the respective provisions in Bill C-6 come into force.
What days can be counted is fairly straight-forward actually: basically, as long as a person has legal status in Canada, and the days spent in Canada are within five years of the date the application is made, they
CAN count, they are entitled to credit. There are some narrow exceptions, mostly obvious ones, like time in Canada with diplomatic status. (Well, there are also other exceptions, such as time on probation does not count, and all the other specific qualifying conditions.)
Many questions posed about credit for time visiting Canada tend to conflate
status and
purpose. Persons in Canada with
visitor status are temporary residents, just like those with a work or study permit. (See IRPA and the respective IRPA Regulations.) When the pre-PR credit changes take effect, time in Canada as a temporary resident with visitor status will count. While a FN's purpose is relevant to whether he or she will be actually allowed entry into Canada, which is governed by IRPA and respective regulations, there is nothing in the changes to the Citizenship Act per Bill C-6 which restricts credit based on purpose. What matters is that the FN has legal status, either as a protected person or one of the classes of temporary resident (and these classes, per IRPA, are worker, student, and visitor).
Again, the real question is the practical question: who should or should not rely on such time, and when.
While the law will allow credit for time in Canada pursuant to visitor status, there are, nonetheless, practical factors and logistical hurdles to take into consideration when a particular individual goes to apply for citizenship and is relying on credit for time in Canada prior to becoming a PR. Note, for example, millions of visa-exempt travelers to Canada take their status for granted (both those with eTA and other visa-exempt travelers, like Americans). They were screened at a PoE upon entry into Canada, and allowed into Canada, no stamp in their passport, no formal or physical visa issued, but they nonetheless have legal, visitor status in Canada so long as they comply with the terms and conditions of their allowed entry.
In contrast, IRCC is
NOT likely to take a visitor's status for granted. The burden of proving both presence and status is on the applicant. Without any stamp, no physical visa, how does a visitor prove status? Can legal status be inferred from the fact of entry itself, which should be verified in a CBSA travel history? The more pertinent question is whether IRCC will
routinely infer status. Sometimes, perhaps, but it is easy to forecast that many times
NOT. Who will be required to affirmatively prove status and/or presence, when, under what circumstances, these are the questions we do not know the answer to.
And, if IRCC requires the applicant to submit proof of status, what facts and circumstances will effectively prove status in the absence of a formal visa or Visitor's Record?
And then how much proof of actual presence will IRCC require for the applicant to meet his or her burden of proving actual presence during the period of time
claimed to have been spent in Canada as a visitor?
These considerations loom much larger than many might appreciate. For the vast majority of prospective applicants, citizenship application processing is routine, suffering no or at worst minimal delays (a FP request perhaps, or a brief stall in updating a clearance). That's what most want, the short and easy path. In particular, most applicants (most meaning, in this context, nearly all) will especially want to avoid RQ, which is acutely inconvenient, profoundly intrusive into one's privacy, and tends to cause a lengthy if not extremely lengthy delay. Even versions of RQ-lite tend to add at least a few months to the processing time, with a much elevated risk of significantly longer delays.
If IRCC has questions, if in particular IRCC does not accept the application and presence calculation on its face, that means non-routine processing. That means at minimum some delay, some inconvenience. It might mean full blown RQ.
This aspect, for whom and when non-routine processing will be likely for applicants relying on time in Canada as a visitor, this is indeed nearly impossible to forecast beyond the more or less obvious.
The more or less obvious: Those in Canada pursuant to a formal visa, such as a TRV, can be fairly confident that FOSS and GCMS show their status. Those who have been issued a formal Visitor's Record can be fairly confident that FOSS and GCMS will likewise verify they entered Canada with status. And those who obtained these in circumstances reflecting their purpose, and their circumstances are consistent with a purpose to stay in Canada for the duration of time being reported, can probably be comfortable about relying on the time spent in Canada with visitor status.
The most obvious example of this is a FN accompanying a Canadian partner and who has dual intent, coming to Canada, entering and staying in Canada, with visitor status but also with the intent to apply for partner-sponsored PR status. Particularly if the entry is documented (TRV or VR for example), or subsequently documented (such as a VR issued pursuant to an application to extend visitor status). So they were in Canada, say, eight months prior to becoming a PR (can be much longer for some), living in Canada with their partner-sponsor, odds should favour relying on credit for this time.
In contrast, in the opposite direction, no advanced degrees in rocket science necessary to foresee an elevated risk of non-routine processing for applicants relying on days spent in Canada as a casual visitor. Indeed, it would clearly be foolish (more like outright stupid) to make an application relying on a few weeks credit for time casually visiting Canada before coming to live in Canada. The risk of non-routine processing just in the way of a specific request for proof of status, let alone the increased risk of full blown RQ to prove actual presence during the time visiting Canada, is very likely to delay the outcome, delay getting to the oath, by much longer than it would have taken to wait long enough so the pre-PR visiting time does not matter.
