Citizenship and condition on PR before new citizenship rules applied

[hkalltheway]

Hi All,

A member on the forum was called the day before oath saying his oath will be delayed because they found a "condition" on his permanent residence. It ended in a positive outcome, as the condition was something business related and the member provided the information the same day, and the officer proceeded with allowing him to join the oath ceremony as scheduled.

I may fall under the same situation, but was wondering how come new rules can be applied when I applied before the deadline and my application was received on May 4. I thought the old rules would apply, hence my condition should not be a problem. Here is my situation. Could an experienced forum member please advise if this will become an issue? Or did the Edmonton office (for the mentioned forum member) make a mistake in taking the condition into consideration for citizenship?

What would be the outcome of something like this if the following situation applies:

1- Father applied for immigration under the entrepreneur class, and conditions were imposed on him and dependents.
2- whole family landed in 2007
3- father and mother left Canada in 2008 because of mother's health and psychological comfort of being in home country for treatment
4- children (self) continued to reside in Canada
5- father, therefore, failed to establish business in canada
6- No official from CIC came forward to request interview
7- child (self) applied to sponsor wife inland in 2012
8- a residency determination was issued, as I stayed outside of Canada for a long period between 2007 and 2012.
9- residency determination was successful, and CIC did not mention anything about business condition not being fulfilled
10- I applied for PR card renewal, and card was subsequently renewed without condition of business being brought up
11- it has been 8 years since becoming a PR, and I had totally forgot about this condition, as no one has ever mentioned it. Father doesn't care about coming back anymore, and he doesn't even recall much about the condition.
12- shouldn't the condition automatically become null and void after the three years which a CIC officer was supposed to contact us and "determine" if the condition was satisfied, and revoke status at that time?
13- Now, we are settled in Canada, have a house here, have been working here, have our children here, and we totally forgot about this condition. Shouldn't it be automatically be waived at this point, since no one from CIC bothered about it, and PR card and sponsorship applications went through without issues?
14- I even applied for citizenship and application was received on May 4th. Is there a possibility that application will be processed under old rules when it comes to satisfying PR conditions?

 

[dpenabill]

. . . I may fall under the same situation [PR with condition], but was wondering how come new rules can be applied when I applied before the deadline and my application was received on May 4. I thought the old rules would apply, hence my condition should not be a problem.

Your query raises two good questions. For one I can offer something of an answer. For the other, I do not know.

The questions are these:

-- Why does the requirement in subsection 5(1)(c) of the Citizenship Act, that a person have no unfulfilled conditions relating to their status as a permanent resident, apply to applicants who submitted their applications prior to June 11, 2015? (To clarify, yes, it does apply.)

-- What is the impact of an unfulfilled condition for a primary applicant's PR on an accompanying PR if many years have elapsed, a Residency Determination has been made, a new PR card issued, and the PR approved to sponsor a spouse for PR?

I do not know the answer to the second question: I do not know what impact an unfulfilled condition for the primary applicant's PR has on accompanying PRs in the circumstances you describe . . . let alone impact on a subsequently sponsored family member's PR.

Frankly, however, my impression is that an accompanying PR's status is dependent on the primary applicant's condition being fulfilled, perhaps until it is fulfilled. I am not sure this is correct. If it is correct, I am not sure how long this limits the PR to that conditional status . . . whether, for example, in the circumstances you describe the condition no longer restricts the status of the PR.

But the potential consequences warrant finding out. If no one here posts a credible response, one you would feel comfortable relying on, preferably one citing reliable authority, this is something you probably want to find out sooner rather than later.


No unfulfilled conditions relating to status as a PR:

Yes, this does apply to all applicants even if the application was submitted prior to June 11, 2015.

The applicable provision is section 31 of the Strengthening Canadian Citizenship Act (the SCCA or as oft referred to, Bill C-24). This is what is described as a transitional provision, prescribing how the amendments and additions to the Citizenship Act, as prescribed in the SCCA are to be implemented. This provision can be found here, among "related provisions".

As is well known, section 31(1) of the SCCA generally prescribed that the changes to section 5(1) (including in particular the change in requirements prescribed by section 5(1)(c) and in the addition of 5(1)(c.1) of the Citizenship Act) do not apply to applications made before June 11, 2015. (Technically section 31.(1) of the SCCA refers to the date section 2(2) of the SCCA comes into force, and per the Governor in Council Order this past June, that date is June 11, 2015.)

Less attention has been given to the precise language of section 31.(1) of the SCCA, which specifically states that this is subject to subsections (2) and (3).

The critical provision here is section 31.(3) of the SCCA, which in effect states that the requirement that a person have no unfulfilled conditions relating to their status as a permanent resident, applies to an application as of the date the new requirements otherwise take effect. (Again, see the provision itself which found here, among "related provisions".)


This is similar to the changes extending and expanding applicable prohibitions.

As of June 11, 2015, the changes increasing the time frame for which convictions result in a prohibition, and expanding prohibitions to include charges and convictions in countries other than Canada, also became applicable to already in process applications.


Can this be successfully challenged because it has a retroactive effect?

Probably not. Technically its effect is probably not considered retroactive since it is only prospectively applicable (in other words, it does not take away anyone's citizenship, it only precludes future grants of citizenship), and the courts have resoundingly ruled that the grant of citizenship is a privilege (thus, for example, Parliament has the authority to change the requirements for being granted citizenship even though that affects PRs who already have an application in process).

Nonetheless, it seems likely someone otherwise qualified for citizenship who is precluded from citizenship by this being applied to an application in process as of June 11, 2015, is likely to raise the challenge. Odds of success are probably low, but I really do not know this aspect of Canadian law at all, so this is more or less a guess.