links18 said:
They don't count as "residence days," because residence is totally irrelevant now. They count as physical presence days, which you apparently now acquire without actually being resident in Canada. Weird right?
In a way, yes, and potentially subject to some rather odd results, at least ostensibly and which could loom more prominently if and when the 3/5 presence rule is adopted. That said, in all but some tortured circumstances, it would be highly unusual for a person to meet the current physical presence requirements without being an actual resident of Canada.
With minimal potential for deviations, a strict physical presence test is more reliable and more definitive, less prone to inconsistent application or abuse of discretion, than a residency test, and far more so than a requirement like that provided under the previous law which was a residency requirement subject to profoundly inconsistent standards in assessing residency. That is, sure some injustice or at least apparently unfair consequences can arise from applying a strict presence test, but a lot, lot less so compared to the old 3/4 residency rule.
Some observations about residency requirements generally:
Residency requirements are notoriously porous. For many if not most purposes, an individual can legitimately refer to residency in a location he rarely spends much time at. For many purposes, primary place of residence is largely a matter of intention requiring only a modicum amount of actual physical ties to the place.
This is in large part why more stringent requirements are often imposed for certain kinds of benefits. For example, the Ontario Health Insurance Plan (OHIP) has a combined
residency plus
physical presence requirement, such that only actual residents of Ontario are eligible
but they must also spend at least 153 days of the calendar year in Canada to be eligible.
For the most part IRCC (and CIC before that) tend to mean
actual place of abode when asking clients to disclose their residential address, and usually expect this to be at least as detailed as per calendar month. Clients who report residential addresses based on more fluid concepts of residency, without either clarifying extended periods of time spent boarding elsewhere, or otherwise declaring extended presence elsewhere (such as disclosing location abroad in travel declaration), can risk suspicions or allegations of misrepresentation. Those who use a family member or friend's address as their residential address, while not really living at that address, do so at their peril.
In any event, pursuant to the usual understanding about what is meant by residency, one remains a resident of a place while traveling, while temporarily away from their place of residence. For example, no advanced degree in civil engineering is necessary to recognize that someone who maintains their primary residence in Toronto continues to be a resident of Toronto even though he is spending three weeks in Ottawa, or three weeks in Banff. One does not change his or her residential address as he or she travels around away from home.
In the meantime, the old 3/4 residency rule was inherently incongruous, and more significantly, confusing, since for some applicants time spent on holidays abroad could count toward meeting the requirement, while for other applicants such time did not count. Citizenship Judges could decide whether to apply a qualitative residency test or apply a strict physical presence test . . . with no need to justify or even explain which test they chose to apply, often not even disclosing which test was being applied to the applicant except in the decision itself.
But, if a resident of Toronto is still a resident of Toronto while he is visiting Ottawa for three weeks, and still a resident of Ontario if it is Banff, Alberta he is visiting, and this is true even if he is visiting New York or Santiago, Chile, then how is it that he is a resident of Toronto, of Ontario, while on such a trip but not a resident of Canada? Especially considering a different Citizenship Judge could indeed conclude he was still resident-in-Canada during the visit to Santiago, Chile . . . and the very same CJ could decide a different applicant would not get credit for those days but could only count days actually present in Canada.
The former law was a mess, a mess for a very, very long time, and had been repeatedly assailed by Federal Court justices as such, prone to not only disparate results but to outright injustice. Citizenship applicants were not even entitled to know ahead of time which test would be used in their case . . . so
short-fall applicants (those who applied based on being resident in Canada for three years but falling short of meeting the actual physical presence test) could have their application in process for years and then go to the CJ hearing without knowing which test the CJ would apply. And, again, many would not learn which test the CJ was applying until they received a negative decision in the mail (a small number of these were overruled by the Federal Court deciding this breached their right to procedural fairness, but more of these cases were upheld than overturned).
Overall: Whether one agrees with the specifics of a physical presence requirement, or not, the physical presence requirement can be more uniformly and consistently applied than a residency test.
Potential oddities:
Without guessing how a particular case would be actually handled by IRCC, among scenarios pushing the envelope are
commuter cases, of which there are more than a few, where for example the PR lives in Windsor and has a daily commute to Detroit for work. There are reports of successful applications for citizenship by such individuals, but there are also reports and published official decisions reflecting more than a few such applicants running into serious problems. Typically the problem is not about getting credit for the days actually spent in Canada, even though much of the day was in the U.S., but about sufficiently proving all such days to be counted as in Canada. That is, in many of these cases it appears that IRCC will be rather if not highly skeptical and might require the applicant to more extensively prove days actually in Canada. But, if IRCC decides the applicant has proven he was commuting and in Canada each day as reported, and those days add up to meeting the physical presence requirement, citizenship should be (and apparently is) granted.
But what about the reverse commuter, one who is living in Buffalo, N.Y., say, and commuting to a tech job in the GTA? And in doing this, is in Canada working at least an average of 245 days a year? In six years, that totals more than 1460 days and meets the physical presence requirement. Eligible for citizenship? Not really, not under the current law. The current law requires the applicant to be resident in Canada at least as of the day before applying and doing so with an intent to continue to reside in Canada (the
intent-to-continue-residing in Canada requirement).
While the current government appears to not be aggressively or strictly enforcing the intent to
continue residing in Canada requirement (although applicants must still declare such intent), I'd guess this is a scenario in which it would indeed be enforced.
Which leads to Bill C-6 and the removal of the
intent-to-continue-residing in Canada requirement, and moreover reducing the percentage of days an individual will need to be physically present in Canada. Once Bill C-6 is adopted and applied, a commuter from Buffalo could conceivably commute to Canada just an average of 220 days per year and never even reside in Canada, but yet be qualified for a grant of citizenship after five years.
Why not a hybrid residency plus presence test?
The current law, as I noted above, does have, in effect, a residency requirement. And while it only requires an applicant to be resident in Canada as of at least the day before applying, so that the applicant can have the requisite intent to
continue residing in Canada, one can easily bet that even under the current government an applicant commuting to Canada from the States would be subject to intensely skeptical scrutiny.
But there is no comparable requirement in Bill C-6.
In many respects, the approach taken by OHIP seems reasonable, requiring the combination of residency backed up by a minimum period of actual presence. But for citizenship purposes it would be far more complicated to apply than a strict presence test which, for all but the more extreme scenarios (like the PR living in Buffalo and commuting to the GTA), is stringent enough that practically the applicant must be a resident of Canada.
It is important for the applicable requirements to be capable of being reasonably managed by a bureaucracy like IRCC. But it is also important for the requirements to be reasonably clear to new immigrants so they can understand what they need to do to become citizens. The more complicated the requirements, the more confusion there is, the more errors there are made, the more applications can be subject to inconsistent outcomes, the more risk there is of abuses of discretion.
In any event, sure a naked physical presence test with no required residency is indeed at least a little weird, but not so weird to be problematic, and for sure it is way, way less problematic than the prior
residency requirement sometimes-but-not-always subject to calculation based on days physically present requirement.
