A complete analysis of Section 5(1)(c.1) (the "intent requirement"):
This is long, really really long; this is essentially about anything and everything that has been thrown at the "intent requirement."
Some general, preliminary observations:
There is absolutely NO risk that a naturalized citizen who was truthful in the process of acquiring citizenship, who sometime after taking the oath decides to live or work abroad, will have his citizenship revoked because he has moved abroad. Assertions to the contrary are wrong, and these days mostly coming from persons who know this and who are deliberately spreading falsehoods, misinformation, and distortions.
This issue almost certainly does not warrant the thorough analysis I offer below. For example, none of the reputable sources for what I call the implicit threat theory (discussed in depth below), such as Macklin, Waldman, or Gerami, or the Canadian Bar Association, or CARL, have offered any substantive analysis in support of the implicit threat theory. This is, it seems to me, for obvious reasons (rooted in the lack of support they could marshal in any reasonable analysis).
But it is painful to see, again and again, questions arise regarding the intent-to-continue-to-reside-in-Canada requirement, and the voluminous assertions persistently rooted in mischaracterization and distortion, and more than a few outright lies. It has been disheartening, actually, to see so many here deliberately spreading misinformation.
There are many here who respond appropriately, dismissing the unfounded accusations that naturalized citizens who leave Canada risk losing citizenship. But given the persistence of the questions, and in response so many mischaracterizations and distortions, I feel compelled to address and close the book on all the various nuances of these efforts to mislead and confuse, to expose even the most ludicrous of the arguments for the rubbish they are.
Section 5(1)(c.1) (the "intent requirement") basics:
Section 5(1)(c.1) explicitly applies only to PRs, NOT citizens:
The "intent requirement" is one of seven requirements specifying who is qualified for a grant of citizenship, as prescribed in Section 5(1) of the Citizenship Act; the respective requirements are specified in subsections 5(1)(a) through 5(1)(f). These are conjunctive. These are requirements applicable to Permanent Residents applying for citizenship. They do not apply to anyone else, or in any other context or for any other purpose.
In particular, they do not apply to anyone who has taken the oath and is a citizen, regardless of when or how citizenship was acquired.
There is no residency requirement applicable to citizens:
On the contrary, the Charter explicitly protects the rights of citizens to travel and live abroad.
The Citizenship Act has no provision so much as hinting there is any restraint on the right of a citizen, naturalized or otherwise, to live abroad at will.
Those who suggest or assert the "intent requirement" is such a provision are either lying or mistaken, and since the language of Section 5(1) in the Citizenship Act is clear and unambiguous, not the least bit vague, and this has been widely illuminated, including at the CIC website, those who still refer to the "intent requirement" as suggesting it can be applied against a citizen are indeed lying, engaging in the deliberate dissemination of misinformation.
Leaving Canada, or living abroad, is NOT grounds for revoking citizenship:
This is essentially a corollary to the observation that there is no residency requirement applicable to citizens.
To be clear, however, there are only two grounds for revoking citizenship as prescribed in the revised Citizenship Act:
-- misrepresentation/fraud, as specified in section 10(1)
-- convictions relating to national security, as specified in section 10(2)
Absence from Canada does NOT constitute grounds for revoking citizenship. Period.
Distinguishing the misrepresentation of intent implicit threat:
The implicit threat theory; what it is:
Again, the intent to reside in Canada requirement is only about qualifying for a grant of citizenship and is in no way a condition or requirement for keeping citizenship status.
That said, there are two forms of the red herring criticisms claiming this provision could be applicable to a citizen, or at least could affect a citizen's status.
One form is a total mischaracterization of the requirement. This is the form addressed above, the form which asserts the provision will apply after the oath, in effect imposing a residency condition or requirement for naturalized citizens. This argument, that to leave Canada after becoming a citizen will constitute a ground for revoking citizenship, is nonsense. There is no truth to this whatsoever. It is blatant malarkey.
The other form of the criticism is based on an arguable (more in the vein of arguably arguable but not really) interpretation of the Minister's authority to revoke citizenship for misrepresentation/fraud. This was a criticism of Bill C-24 raised almost immediately after it was tabled in February 2014, gaining traction in public discourse after it was articulated in a Star article (again, in February 2014) authored by Toronto law professor Audrey Macklin and well-known CARL lawyer Lorne Waldman. This particular version was then repeated, often almost verbatim, in various comments, observations, and criticisms, including by the Canadian Bar Association, in student authored articles, as well as in this and other forums back in the late winter and spring of 2014, well over a year ago.
However, by the time Bill C-24 was given Royal Assent June 19, 2014, this argument had all but totally fallen by the wayside, for good reasons. I know of one lawyer (Gerami), in an article co-authored by a student, and one Continuing Legal Education article authored by a student (published by CARL in September 2014), which subsequently still raised this issue, but neither actually offered any authority or analysis to support the argument, which again is actually for good reason: any genuine, serious research or analysis would readily reveal this argument is, at the very best, hyperbolic and in context a distortion.
But sure, there is a risk for applicants who do have plans, while the application is in process, to go abroad after becoming a citizen. DUH! Fraud is a crime. Get caught, go to jail, lose citizenship. No algebraic computations necessary to figure this out.
The Star article (more an editorial), in mid-February 2014, stated that the intent to reside provision:
" . . . holds out the implicit threat that if a naturalized Canadian citizen takes up a job somewhere else (as many Canadians do), or leaves Canada to study abroad (as many Canadians do), the government may move to strip the person of citizenship because they misrepresented their intention to reside in Canada when they were granted citizenship. Whether the government acts on the threat is not the issue; it is enough that people will be made insecure and apprehensive by the possibility that the government may arbitrarily decide to launch revocation proceedings against them if they leave Canada too soon, or remain away too long."
Again, in almost all genuine discussions about the real force and impact of Bill C-24, apprehensions about that "implicit threat" have largely fallen by the wayside if not overtly dismissed, for good reason. However, this is the main argument which underlies and fuels most of the continued spreading of the red herring criticism that the intent requirement poses this implicit threat. This has indeed been repeated in posts above.
To be clear, again, this is not about a condition or requirement that a naturalized citizen continue to reside in Canada. This is about the alleged possibility that if a naturalized citizen leaves Canada too soon, or remains away too long the government might move to revoke citizenship on the grounds there was misrepresentation (fraud) when they said they intended to continue to reside in Canada if granted citizenship.
This is, at best, hyperbolic, an exaggerated threat.
To be clear, in this form of the argument, living abroad does NOT constitute grounds for revoking citizenship; rather, the grounds for revoking citizenship would be misrepresentation, fraud in the process of acquiring citizenship.
The purported misrepresentation, establishing grounds to revoke citizenship, would be (in this argument, per the implicit threat theory) about the applicant's intent. In other words, the citizen would not lose citizenship because he was living abroad, but rather because he was living abroad the government might conclude he misrepresented his intent to continue to reside in Canada. This is deeply, deeply flawed. Again, at the very, very best this is hyperbolic.
Why this implicit threat theory is, at best, hyperbolic, a gross exaggeration:
Let us be clear: fraud is fraud, a crime. And applicants who have plans to leave Canada to live elsewhere right after taking the oath, that is those who are planning to, in effect, take-the-oath-on-the-way-to-the-airport, and who conceal their plans while their application for citizenship is in process, they have reason to fear, to fear not just having citizenship revoked but potentially spending time in prison.
I have not seen either Macklin or Waldman clarify their comments other than restating them in slightly different forms (back in early 2014 however, not recently -- again, this argument has been largely if not entirely dropped by reasonable and informed observers). In particular, I have not seen them distinguish those who actually are engaged in deceiving the government about their intentions (there are bound to be some), versus those who some time later, after taking the oath, make the kind of decision many Canadians make: to work, study, or live abroad.
This is not merely a distinction worth making, however, it is a distinction at the crux of what the intent requirement means, how it will be applied, and who is at risk for proceedings to revoke citizenship for making misrepresentations about the required intent.
Some comments above, in posts by other participants here, address this distinction with mockery, highlighting the absurdity of the suggestion that a naturalized citizen who sometime later, well after taking the oath and becoming a citizen, is at risk for being stripped of citizenship if he decides to live or work abroad.
The mockery, however, is playing competing-proposition ping-pong, engaging in a back-and-forth of competing assertions.
I tend to agree with the rationale underlying the mockery: the idea a legitimate, honest, genuine new citizen of Canada who sometime later in life, be that in a year or ten years, decides to go abroad to live or work, is then at risk for being stripped of citizenship, is so ludicrous, so absurd, as to deserve mockery. It really is.
But, just butting heads, playing competing-propositions ping-pong, does not illuminate the underlying fallacy, does not reveal why or how such an idea is so ludicrous as to deserve mockery.
screech339 alludes to what is really involved: evidence versus proof.
screech339 specifically referred to what could be evidence that a naturalized citizen misrepresented his intent: a one-way ticket abroad purchased prior to taking the oath (to which I would add, a round-trip from abroad to make a trip to Canada in order to take the oath), or accepting a job-offer abroad before taking the oath.
Some actual analysis:
The implicit threat theory asserts that leaving Canada after becoming a citizen could lead to the government proceeding to revoke citizenship.
For the government to revoke citizenship there must be (1) sufficient evidence to (2) prove (3) the prescribed grounds for revoking citizenship.
Again, there are only two grounds for revoking citizenship: either fraud/misrepresentation or a conviction related to national security.
Leaving Canada does not constitute, nor will it support, a conviction related to national security.
Thus, the only ground for revoking citizenship which leaving Canada could be, if at all, connected to, is misrepresentation or fraud.
A simple question: can an act after becoming a citizen constitute misrepresentation in the process of acquiring citizenship? No, of course not. An act after becoming a citizen is not an act committed in the process of acquiring citizenship.
This is so obvious as to not require articulation let alone illumination for those who are reasonable. However, for purposes of nailing down the coffin lid on this specious argument, to cover all aspects, it warrants being clear: leaving Canada after becoming a citizen does not, in itself, constitute a misrepresentation made in the process of acquiring citizenship.
This leaves the argument dependent on the proposition that leaving Canada after becoming a citizen could be sufficient evidence to prove this person misrepresented his intent while applying for citizenship.
Indeed, this is the core of the alleged implicit threat theory, that a Minister might target certain citizens who left Canada too soon or remained abroad too long, and based on this conduct (leaving too soon or remaining abroad too long) conclude the individual misrepresented his intent to continue to reside in Canada if granted citizenship.
To be clear, this is a broad generalization which ignores the essential nature of what constitutes evidence and proof.
Neither Macklin nor Waldman, nor Arghavan Gerami (whose name appears on the article co-authored with a student in the Journal of Parliamentary and Political Law which raised a version of this, albeit nearly verbatim the CBA's comments from early 2014), nor anyone else who has asserted this implicit threat theory, so far as I have seen (and I have been looking, at length and in depth - I tend to do a lot of homework), offer even minimal citation of support for the proposition that the act of leaving Canada after becoming a citizen could constitute proof that the individual misrepresented his intent in the process of acquiring citizenship. They do not even offer any analysis of how it would be evidence of misrepresentation, let alone proof.
To also be clear, there is virtually no case law to support the proposition that a later act in itself is proof of an earlier mental state, with very limited exceptions. There is the obvious exception: a confession, an admission against interest, in which the individual admits what his earlier state of mind was. So, sure, the naturalized citizen who signs a statement that his intent, during the application process, was to leave Canada to live abroad if granted citizenship, that post-oath act might be deemed sufficient to establish misrepresentation supporting the revocation of citizenship.
Merely leaving Canada some time after becoming a citizen, however, does not directly indicate, let alone establish, there was no intent to continue to reside in Canada if granted citizenship.
In other words: leaving Canada alone cannot prove the naturalized citizen misrepresented his intent during the process of acquiring citizenship.
This leads back to the observations by screech339, referring to what is evidence of having misrepresented intent.
Is leaving Canada after becoming a citizen itself even evidence that the naturalized citizen misrepresented his intent to continue to reside in Canada if granted citizenship?
This is where the Macklin, Waldman, and Gerami criticism really breaks down.
The Macklin and Waldman Star editorial at least identifies, loosely, some parameters:
-- leaving Canada too soon
-- remaining abroad too long
But first, for clarity, standing alone the mere subsequent act of leaving Canada to live or work abroad, after becoming a citizen, does not constitute evidence as to what that individual's intent was at any earlier time, let alone specifically during the process of acquiring citizenship. Without more, without at the very least some contextual basis for inferring the act of going abroad reveals something about what that individual's intent was earlier in time, the act of going abroad is not relevant evidence as to what the applicant's intent was during the processing of his application for citizenship.
There is plenty of case law addressing the issue of intent and what facts or circumstances constitute evidence of intent, including evidence based on later acts. Thus yes, there is some support in the case law that acts later in time can be relevant evidence of earlier intent. The later admission against interest is the most obvious example. Flight, efforts to conceal evidence, and acts which are both consistent with the alleged earlier intent and not explicable but for such intent, are all examples.
In the immigration law context, for example, in many marriage fraud cases the sponsored PR's rapid departure from the marriage, after landing, was considered evidence that his or her representations about the genuineness of the relationship were fraudulent.
The marriage fraud cases are perhaps the most closely relevant examples of later acts constituting evidence of earlier intent. It is no surprise that we have not seen any advocates of the implicit threat theory actually offer some analysis based on those cases: they would largely affirm the difficulty of even considering the later acts as relevant let alone significant evidence, but would more to the point illuminate that some direct proof based on the misrepresentation of concrete facts is necessary to support a finding of misrepresentation in all but the most obvious and egregious cases (the most egregious one I can recall involved an individual who ceased communicating with the sponsor and secretly traveled to Canada without the sponsor's knowledge, and the sponsor only later discovered that the sponsored partner had landed and was living in Canada as a PR . . . but even in that case, the fact that communication was deliberately terminated as soon as the visa was issued, before the sponsored partner came to Canada and landed, was important evidence to corroborate the conclusion the individual had misrepresented the genuineness of the marriage).
Overall, there is little reason to doubt that it is NOT even possible for the Minister to lawfully revoke citizenship for misrepresentation based only on the fact that a naturalized citizen has left Canada to reside abroad. The fact of living abroad after becoming a citizen is, in itself, simply not sufficient evidence of misrepresentation.
Which leads back to the Macklin and Waldman version of this implicit threat theory, and the too soon, or too long parameters.
They phrased this in the disjunctive, that is, about leaving Canada too soon OR remaining abroad too long. But in the disjunctive, there is no implicit threat arising from either situation.
There is no evidence of misrepresentation of intent indicated, at all, by a naturalized citizen leaving Canada the day after the oath ceremony but not for so long as to actually be residing abroad. That is, no matter how soon after the oath the newly naturalized citizen leaves Canada, that alone is no indication, not relevant let alone significant evidence, that he misrepresented his intent during the process.
Similarly, the mere fact that sometime later in life, sometime well after having taken the oath, a naturalized citizen moves abroad for a long time, even permanently, does not indicate or constitute evidence that when he was applying for citizenship he did not have the requisite intent to continue to reside in Canada if granted citizenship. The mere fact that he had continued to reside in Canada for some time after the oath is, at the least, sufficient evidence to the contrary to refute any such accusation.
And perhaps this is a good place in this discussion to address what does constitute continuing to reside in Canada?
What does "continue to reside in Canada" mean?
If there is any vagueness in section 5(1)(c.1) at all, it is in this, in what is meant by an intent to "continue to reside in Canada?" (I do not think this is actually at all vague, but will concede the arguability of vagueness.)
The open question which might be asked is "how long?" That is, will an intent to continue to reside in Canada for at least a week after becoming a citizen suffice to satisfy the requirement?
The critics tend to suggest that it means something akin to for-life, as in permanently. And thus, the theory goes, leaving Canada later tends to show a lack of intent to stay in Canada, the absence to essentially intend to continue in reside in Canada forever.
But there is nothing in the statute which supports such an interpretation.
If the Minister was to assert that is what the statute did mean, that interpretation would impinge on the Charter mobility rights of citizens and not be valid or enforceable. Statutes must be interpreted, if at all possible, to be in compliance with the Charter. This is a fundamental principle of statutory construction. The Minister's attempt to interpret and apply this provision in this manner would be rejected by the courts, without question it would not be allowed.
At the very most, the statute might be interpreted to mean that an intent to indefinitely reside in Canada is required, which is to suggest that the individual must intend to continue to reside in Canada with no present plans or intent to leave Canada.
This is the juncture at which the difference between assessing a PR's qualifications during the processing of the application, and any post-oath re-examination of the individual's intent, demands to be highlighted.
Some of the criticisms repeated in forums like this argue that the purpose of the statute must be to restrain the mobility of citizens after taking the oath, otherwise there is (this argument alleges) no reason for the provision.
This is almost certainly a bad faith argument, deliberately misleading, since the nature and purpose of the intent requirement is obvious, affirmed repeatedly in various CIC statements, and illuminated at length in many discussions about this requirement. At the very least, the requirement targets those whose plans have been to come to Canada just long enough to obtain a Canadian passport. The so-called applicant-applying-on-the-way-to-the-airport has been a pet peeve of the Tories for a long time. And, frankly, such applicants were targeted even before Harper formed the government, the 2005 Operational Bulletin, which later became part of the Operational Manual for assessing residency (replaced by OB 407 in 2012 and now the relevant Program Delivery Instructions) specifically listed risk indicators (reasons-to-question-residency) looking for applicants who were living abroad while the application was in process.
In any event, the intent requirement specifically affords the Minister a reason to reject applicants who are not residing in Canada while the application is pending, in addition to opening the door wide for inquiries into any and all connections or ties the applicant continues to have abroad.
This lead back to the difference between assessing a PR's qualifications during the processing of the application, and any post-oath re-examination of the individual's intent, and considering whether the statute, the intent requirement, might be interpreted to mean an intent to indefinitely reside in Canada is required, which is to suggest that the individual must intend to continue to reside in Canada with no present plans or intent to leave Canada.
This requirement specifically gives CIC the tools and the authority to probe for indications an applicant has present plans or an intent to reside abroad. If CIC's inquiries or investigations discover evidence of such plans, the applicant's case is likely to be in trouble, at risk for being denied. And this, it is clear, was the Tory's the key objective for including this requirement.
But what does this imply regarding any post-oath inquiry into whether there was misrepresentation?
This leads back to the parameters identified by Macklin and Waldman in their Star editorial in February 2014: the naturalized citizen who leaves too soon, or remains abroad too long.
As analyzed above, in the disjunctive there really is no risk that leaving Canada soon or for too long could even possibly support a conclusion the naturalized citizen misrepresented his intent during the application process.
But a naturalized citizen might, indeed, leave Canada so soon, and for so long as to imply there was a plan to do so prior to taking the oath . . . and such a plan would be evidence the individual lacked the intent to continue to reside in Canada if granted citizenship.
I have taken the long, long way around to essentially agree with Macklin and Waldman that the inclusion of the intent requirement poses a risk for the naturalized citizen who leaves Canada so soon to reside abroad as to imply there was a plan to do so before taking the oath. Where I part ways with Macklin and Waldman, however, is that this in any way poses an implicit threat against any naturalized citizen who made no misrepresentations in the application process and later, sometime after becoming a citizen, decides to move abroad.
Moreover, the practical reality will require the Minister to have significantly more evidence of misrepresentation in order to actually effect the revocation of citizenship. This goes back to what amount of evidence would be necessary to establish there was a misrepresentation of intent.
Frankly, I strongly believe the courts will not allow revocations of this sort in the absence of a showing there was some concrete fact misrepresented in the course of the application process, such as a failure to disclose ownership of a residence abroad, or the failure to declare foreign employment or business interests. That is, I think the courts will require a misrepresentation of a concrete fact, not just as to mental state (intent), to support revocation for fraud.
Perhaps, however, the individual who is living abroad while the application is in process, who uses a round-trip ticket from abroad to come to Canada in time to take the oath, get a passport, and then return home, could be a case in which leaving so soon to reside abroad would be upheld, by the courts, as sufficient to justify revocation of citizenship for misrepresentation of intent.
The possibility of such a case, however, in no way suggests there is a risk of revocation for just moving abroad sometime after becoming a citizen.
So, finally, back to the question about how long is implied in the requirement to continue to reside in Canada?
At this stage I am wandering past analysis based on existing law and into the realm of opinion (noting that I have stated some opinions above, which I have tried to couch in terms clearly revealing what is opinion as opposed to definitive analysis, usually set off by something like "I think").
Technically, the individual who intends to continue to reside in Canada for at least a week more as of the time he appears to take the oath, has the intent to continue to reside in Canada. Those who want to hang their hat on this technical interpretation do so at their peril. Canadian courts, it seems to me, are particularly wont to reject such technical interpretations.
So, while I am hardly one to predict how the courts will actually interpret the intent requirement, it seems very likely to me that it will be at least along the lines that it means an intent to indefinitely reside in Canada is required, which is to suggest that the individual must intend to continue to reside in Canada with no present plans or intent to leave Canada.
Present Plans to Leave Canada to Reside Abroad:
There are those who might then quibble about what this in turns means relative to for how long. That would be to totally miss the point. The real point is about whether or not there are present plans. If CIC discerns plans to leave Canada to live abroad in the future, present plans while the application is pending and before the oath, that will at least put the application at risk. Perhaps CIC would dismiss, as irrelevant, indications that the applicant plans to go to his home country after retiring many years down the road.
How far into the future would a plan have to be to be safe? Again, this would be missing the point. Probably safe to anticipate that any plan which involved continuing to reside in Canada for at least the near future would not sabotage the application . . . but that is not for certain.
The big difference, for purposes of this discussion, however, is that between assessing the applicant while the application is pending, before the oath, versus some later reconsideration well after the individual has become a citizen. If CIC perceives reason to suspect the applicant has present plans to live abroad, at the least intensive scrutiny can be expected. In contrast, if during the processing of the application CIC does not perceive reason to make specific inquiries about any prospective plans to live abroad later, and the applicant's actual plans are to continue to reside in Canada for at least as far as the applicant has made plans, once he has become a citizen there is absolutely no reason to worry about making a decision to go abroad for however long.
The applicant who has NO present plans for leaving Canada to live abroad, has no reason to fear what might happen if at some later time, well after he has become a citizen, he then decides to live abroad.
