If this topic is intended to be another venue for venting frustration, disappointment, or anger, my apologies for interrupting with an effort to address actual issues.
Murky application or interpretation of intent-to-reside clause:
cprak0 said:
Nobody really knows how the "intent to reside" clause would be interpreted. If it is actually a tool for allowing more discretionary power to the CO, this would be contested in the courts since it brushes against the charter of rights.
While the so-called
intent-to-reside clause (section 5(1)(c.1)(i) in the
Citizenship Act as revised but not yet in force) will undoubtedly be the subject of interpretation, and the specific manner of its application is yet to be seen, its language is actually fairly simple, relatively stock, and there are at least related precedents interpreting
intent requirements in older versions of Canadian immigration law. There really is not a lot of murkiness and how it is interpreted and applied should be mostly straightforward, even though how it is applied in practice in some particular factual scenarios, particularly complicated factual scenarios, remains to be seen and probably will be the subject of requests for judicial review.
Note, in particular, that it warrants emphasis that section 5(1)(c.1)(i):
-- is actually an
intent-to-continue-residing-in-Canada clause
-- is a qualification a PR must meet to be granted citizenship and is not a condition of citizenship (thus has no application after an individual becomes a citizen)
ZingyDNA said:
You mean there's a new RQ trigger when they doubt your intent to reside during the application process? Where did you find the source on this?
Currently CIC mostly utilizes a specified set of risk indicators, referred to as the
triage criteria, to screen applications, and for those applications which meet the criteria, issue a Residence Questionnaire. This criteria has been modified periodically and the precise criteria employed is
NOT public knowledge. An (apparently accidental) disclosure of the File Requirements Checklist in 2012, considered in conjunction with various responses to ATI requests over the last few years, has given us a baseline list of the criteria with some hints as to how they have been applied in the past. Thus, we have some idea as to the bulk of the criteria employed, but do not know for sure what has been added or removed, or CIC's approach to applying the criteria (for example, periods of unemployment with any travel abroad was a definite trigger for RQ in 2012, but obviously is not so strictly applied now; we do not know whether a period of unemployment has been removed from the criteria or whether it remains but is considered in conjunction with other factors to determine if it is a reason to issue RQ -- my sense is the latter but we do not really know).
Beyond that, which is the screening done at Sydney before an application is transferred to a local office for processing, for applicants not issued pre-test RQ at that step, the triage criteria are reconsidered by the local office in the pre-interview check phase and/or in conducting the interview, subject to whatever additional screening criteria CIC employs at these stages . . . for example, even now,
before the
intent-to-continue-residing-in-Canada clause comes into force, it is clear that applicants who CIC perceives to have left Canada to live or work abroad
after applying are likely to be issued RQ at or following the test/interview.
While there may be a number of things the interviewer is looking for in screening for
reasons-to-question-residency (discrepancies between passport stamps and declared travel in the residency calculation high on that list), there is an important reason why I specifically mention that it is clear that even now applicants who CIC perceives to have left Canada to live or work abroad
after applying are likely to be issued RQ at or following the test/interview.
Technically, under the current
Citizenship Act, leaving Canada after applying has no bearing on whether or not the applicant meets the qualifications for citizenship, and in particular
cannot result in any deduction of time credited toward meeting the residency requirement.
But CIC clearly looks for this and imposes RQ on many because of this, and indeed otherwise tends to impose significant hurdles in the processing of applications for those perceived, as a Federal Court justice once put it, to have
applied-on-the-way-to-the-airport.
Once the intent-to-continue-residing-in-Canada clause comes into force, leaving Canada to live or work abroad, while the application is pending, could be virtually a stand-alone ground for denying citizenship.
To my view, this is the obvious primary purpose of including this requirement, to discourage, if not preclude, those who come to Canada to stay just long enough to meet the minimum qualifications for citizenship.
Thus, the
intent requirement will not merely open the door to additional
reasons-to-question-residency, that is in effect "triggers" for issuing RQ, and expand the scope of RQ dramatically when issued (any and all continuing ties abroad will almost certainly be required to be disclosed and will in turn be scrutinized closely), but it will give CIC a specific ground for denying the grant of citizenship.
Among aspects of this still unknown: Technically, only
residency cases will go to a Citizenship Judge now, and it appears CIC can terminate (without referral to a CJ) applications for other causes, like failure to meet language or knowledge requirements. Question is whether the
intent requirement, as specified in section 5(1)(c.1)(i), is a "residency" issue or a separate element of qualification, whether CIC can make a determination that the
intent requirement fails and terminate the application without a referral to a CJ. This remains to be seen.
Overall regarding the intent requirement:
It is highly likely that its interpretation and application will be mostly straightforward, but it will have a broad and, for some applicants, a profound impact.
It will mostly affect those applicants who:
-- leave Canada for extended periods of time after applying
-- have significant residential or work related ties abroad, including interests in business abroad, and for sure those who still have status to work abroad (such as a U.S. Green Card, ME work permits, and so on)
-- have immediate family members living abroad (probably an overbroad, unfair impact on some single immigrants who have little family in Canada)
-- still own a residence abroad
-- are still a student or was until recently a student, and otherwise without a strong tie to a job or career in Canada
This may not be an exhaustive list of those likely to be most affected. Some will be more profoundly affected than others -- the example of the applicant who goes abroad to work after applying for example will likely be at high risk for a denial since, after all, it is logically impossible to intend to
continue residing in Canada when one is not residing in Canada.
Affidavit of intent:
This is largely a red herring. While none of us has yet seen what the new application form will look like, recognizing that extensive changes will be necessary due to the revised provisions, the application already contains a comprehensive affirmation of information in the signature box on the form, with a separate signature required for the residency calculation. Whether the
intent requirement is reflected in the signature box affirmations or is a separate signature box is of little import or significance. One way or another, submitting the application will involve affirming that it is one's intent, if granted citizenship, to "
continue to reside in Canada" if granted citizenship.
Additionally, applicants are now required to sign a statement at the interview and again prior to the commencement of the oath ceremony which affirms they are not subject to any prohibitions. Whether this statement will be expanded to include an affirmation of requisite intent or not I cannot guess, but again even if it is, that is of little import . . .
. . . so long as, of course, that is the individual's intent . . . so sure, the applicant who before taking the oath has taken a job in New York or London or Dubai and who flies back to Canada in time to take the oath, signs the declaration, takes the oath, and flies back to his or her job abroad, is risking being prosecuted, going to jail, and losing citizenship. For obvious reasons.
Which leads to the proof of "intent" issue:
This is another aspect of the revised provisions oft smeared if not buried in red herring.
There are scores and scores and scores of laws for which "intent" is a critical element. These laws have been subject to literally thousands of judicial interpretations regarding what intent means and what proves intent. There is little murkiness here. There should be minimal confusion. And "intent" was an element in certain parts of Canadian immigration law in the past, so there is a body of law interpreting what intent means and how it is proven.
And of course what a person says does not necessarily prove what that person's intent is. The guy who points a loaded gun at another person's head and pulls the trigger will have a hard time getting anyone to believe him when he says "I did not know the gun was loaded and did not intend to kill him."
Likewise the citizenship applicant who swears his intent is to continue to reside in Canada, but who is working at a job in Houston, Texas while the application is pending. The applicant who says his intent is to continue to reside in Canada but his family is living in India and he owns a home there and his main source of income is from a business primarily located there.
Really, no advanced degrees in engineering are necessary to see how an "intent" requirement will work.
That said, life is complicated, and for many immigrants it is particularly complicated, and most of us have many aspects of our lives which straddle borders. We are from a country other than Canada so of course we have significant ties in at least our home country. And we are an increasingly mobile society, so many of us tend to have ties in multiple countries, and this can be especially so in regards to the business or career in which we are engaged. So yes, for a significant number of otherwise qualified and genuine applicants, the scope of inquiry imposed by CIC is likely to be more problematic due to the intent requirement.
For the vast majority, however, the intent requirement will have little import, virtually no impact.
