Law society of BC expects July 2015 for C-24
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This link is indeed appreciated because the article is a very good, and mostly accurate (even if not entirely accurate) summary of the changes being made pursuant to Bill C-24 (cited as the "Strengthening Canadian Citizenship Act," or "SCCA," in most government sources).tiarachel85 said:
I do not know what the law society of BC expects, but the article does not really say what the law society expects, as it is a student written paper published by the law society. And regarding what it says about when the revised residency provisions will come into force, the entirety of what is says is this:
"As of September 19, 2014, the date of this paper, not all changes are in effect yet. It is expected that most provisions will come into force by July 2015."
Some emphasis on the date is warranted, as it says BY July 2015.
For many, focusing on a single preposition (like "by" in this statement) is an unnecessary, perhaps fruitless and picayune exercise in semantics. The gist of what is said is what matters. But the gist of by July 2015 is that the event will occur no later than July 2015, and possibly anytime before July 2015.
Additionally, this is merely a very general expression of expectation by two students made last September, when they had no more input than we have, that is other than perhaps the opinions of a few jurists like their article-adviser, a law school professor or two, or one or more lawyers in the BC law society (none of whom is likely to have known more then than many here know now . . . and we still do not know for sure when the revised residency provisions will come into force).
What stands out to me, however, is that other than the two notices about proposed regulatory changes, the February 28th, and March 14 notices referenced in other topics, is that between last September (when these students wrote and published this paper) and now there has been virtually no hint from the government about when these changes will take effect.
Some Clarifications Regarding the Continuing Legal Education Paper by students in BC titled:
GRANTS OF CITIZENSHIP UNDER THE NEW CITIZENSHIP ACT
As I already noted, the link to this paper is appreciated because it does provide a very good overview or summary of the key changes taking place pursuant to the adoption of Bill C-24, or as most government sources refer to it, the Strengthening Canadian Citizenship Act.
It is a student paper, was prepared as materials for Continuing Legal Education, and at this stage is a bit dated (written last September), and since it is not even a law review type article, I am not sure to what extent it was subject to peer review. And it is, in particular, quite general.
It is, however, in my view, a very good overview of the changes being implemented.
There are, however, some errors, and some forecasts or inferences with which I disagree.
Errors; compliance with tax law:
. . . the applicant must now submit a return of income under the Income Tax Act with respect to four taxation years that are fully or partially within the six years.
It is not clear this is true, and at best I think it overstates what the new law will require. The revised section 5(1)(c)(iii) states that a PR must have " . . . met any applicable requirement under the Income Tax Act to file a return of income in respect of four taxation years that are fully or partially within the six years immediately before the date of his or her application;"
Not every resident of Canada is required to file a return of income. And in particular, a PR applying for citizenship may or may not have been required to file a return for any given calendar year, even if the PR was resident and present in Canada. Which is to say that a PR may have met the applicable CRA requirements for a given year without having filed a return for that year.
That said, as a practical matter, this provision is likely to have the effect of in essence requiring the vast majority of PRs, who will apply for citizenship, to have indeed filed a tax return.
The student paper goes on to say:
The requirement to file taxes, meanwhile, appears to be an attempt to use this requirement to enforce the growing problem of overseas individuals avoiding their Canadian tax obligations. It is uncertain how this provision will be enforced between the Canadian Revenue Agency and the CIC, and with respect to Canada’s numerous bilateral tax treaties.
While the enforcement of tax obligations is probably one objective, among the purposes for implementing this provision, it is undoubtedly not the primary purpose. This is one of those areas in which the fact the paper's authors are students, not persons long engaged and experienced in grant citizenship cases, is apparent.
And of course we now have the benefit of the February 28 notice of proposed regulations, in which the Regulatory Impact Statement and background information highlighted a more salient and compelling purpose for this provision: proof of residency itself, and (apparently, according to CIC's February 28 notice anyway) the extent to which applicants have been submitting phony copies of Notices of Assessment (in response to RQ).
Those who actually follow the Federal Court citizenship cases can readily identify a pattern repeated in many cases where CIC has serious concerns about the veracity of the applicant's declared absences related to funds or source of income versus cost of living in Canada. In short, in many cases CIC suspects the applicant of working abroad, having a source of income abroad, more than has been revealed in the application or response to RQ. This leads CIC to infer such applicants were physically abroad more than disclosed.
This has loomed significantly large under the current law in residency cases, particularly those challenged by CIC. But it will loom even larger once the revised provisions take effect, given the intent-to-continue-residing-in-Canada provision (section 5(1)(c.1) in the revised version of the Citizenship Act), since substantial sources of income from abroad, particularly if the source is based on continued activity abroad, will at the least be a significant factor which could have an impact on CIC's assessment of compliance with this provision.
Errors; current residency requirement:
"Under the old residency provision (which is still in effect), there was . . . no requirement for physical presence."
Hundreds if not many thousands of applicants whose applications have been denied in the last five years precisely because they did not meet the residency requirement, because they did not meet a physical presence test, would probably beg to differ.
And of course Justice Rennie and Justice Snider, with others later concurring, have ruled that the current law ("old law" as referenced by the students in their paper) does indeed require physical presence, ruling that "residency" means "presence." And this has indeed been the dominant approach by CIC for at least three or four years.
This criticism may be a bit picayune, since these students were clearly trying to be brief in contrasting the old versus new law, and in particular to offset a big source of problems with the "old law" (old but still applicable) rooted in the varied interpretations of what "residency" meant. And indeed, the paper goes on to flesh this out, describing the various tests which can be applied quite clearly, even if a bit superficially.
But I feel that pointing this out was warranted given the extent to which it is clear that scores of PRs applied based on basic residency, not particularly concerned that, as the CIC website says, that would mean a Citizenship Judge would have to decide if they met the residency requirement given their falling short of actual presence for 1095 days, since they were confident they had settled in Canada, their life was centralized in Canada, and surely the CJ would see that and see that their absences were for temporary purposes which did not amount to any compromise in maintaining residency at their home in Canada. And two or three or four years later their application got rejected . . . got rejected because, based on the applied interpretation of the current law, they failed to meet the law's physical presence requirement.
A quibble; the intent to reside provision:
"A major change within the New Citizenship Act is the new statutory requirement for an applicant to intend to continue to reside in Canada following their grant of citizenship.8 Section 5(1)(c.1) clarifies that the person’s intention must be continuous from the date of his or her application until they take the oath of Citizenship."
"Critics of this change believe this provision creates a “second-tier of citizenship,” as it applies only to naturalized Canadian citizens. They are worried that such a provision runs head-on into potentials issues with possible claims of misrepresentation for individuals who accept employment overseas shortly after obtaining their citizenship. This provision could be subject to Charter scrutiny."
As discussed elsewhere, in more than sufficient depth, the criticism, the worry expressed in the second paragraph, is either not worthy of mention (it is unfounded) or should be accompanied by a disclaimer or caveat to the effect that this worry is largely (if not entirely) unfounded.
That noted, I do like the way they phrased their description: " . . . [this provision] clarifies that the person’s intention must be continuous from the date of his or her application until they take the oath of Citizenship."
That is a key element in this provision. It is clearly aimed at applicants this government perceives to be pursuing a passport of convenience, or as a Federal Court justice once described it, applicants "applying-on-the-way-to-the-airport."
GRANTS OF CITIZENSHIP UNDER THE NEW CITIZENSHIP ACT
As I already noted, the link to this paper is appreciated because it does provide a very good overview or summary of the key changes taking place pursuant to the adoption of Bill C-24, or as most government sources refer to it, the Strengthening Canadian Citizenship Act.
It is a student paper, was prepared as materials for Continuing Legal Education, and at this stage is a bit dated (written last September), and since it is not even a law review type article, I am not sure to what extent it was subject to peer review. And it is, in particular, quite general.
It is, however, in my view, a very good overview of the changes being implemented.
There are, however, some errors, and some forecasts or inferences with which I disagree.
Errors; compliance with tax law:
. . . the applicant must now submit a return of income under the Income Tax Act with respect to four taxation years that are fully or partially within the six years.
It is not clear this is true, and at best I think it overstates what the new law will require. The revised section 5(1)(c)(iii) states that a PR must have " . . . met any applicable requirement under the Income Tax Act to file a return of income in respect of four taxation years that are fully or partially within the six years immediately before the date of his or her application;"
Not every resident of Canada is required to file a return of income. And in particular, a PR applying for citizenship may or may not have been required to file a return for any given calendar year, even if the PR was resident and present in Canada. Which is to say that a PR may have met the applicable CRA requirements for a given year without having filed a return for that year.
That said, as a practical matter, this provision is likely to have the effect of in essence requiring the vast majority of PRs, who will apply for citizenship, to have indeed filed a tax return.
The student paper goes on to say:
The requirement to file taxes, meanwhile, appears to be an attempt to use this requirement to enforce the growing problem of overseas individuals avoiding their Canadian tax obligations. It is uncertain how this provision will be enforced between the Canadian Revenue Agency and the CIC, and with respect to Canada’s numerous bilateral tax treaties.
While the enforcement of tax obligations is probably one objective, among the purposes for implementing this provision, it is undoubtedly not the primary purpose. This is one of those areas in which the fact the paper's authors are students, not persons long engaged and experienced in grant citizenship cases, is apparent.
And of course we now have the benefit of the February 28 notice of proposed regulations, in which the Regulatory Impact Statement and background information highlighted a more salient and compelling purpose for this provision: proof of residency itself, and (apparently, according to CIC's February 28 notice anyway) the extent to which applicants have been submitting phony copies of Notices of Assessment (in response to RQ).
Those who actually follow the Federal Court citizenship cases can readily identify a pattern repeated in many cases where CIC has serious concerns about the veracity of the applicant's declared absences related to funds or source of income versus cost of living in Canada. In short, in many cases CIC suspects the applicant of working abroad, having a source of income abroad, more than has been revealed in the application or response to RQ. This leads CIC to infer such applicants were physically abroad more than disclosed.
This has loomed significantly large under the current law in residency cases, particularly those challenged by CIC. But it will loom even larger once the revised provisions take effect, given the intent-to-continue-residing-in-Canada provision (section 5(1)(c.1) in the revised version of the Citizenship Act), since substantial sources of income from abroad, particularly if the source is based on continued activity abroad, will at the least be a significant factor which could have an impact on CIC's assessment of compliance with this provision.
Errors; current residency requirement:
"Under the old residency provision (which is still in effect), there was . . . no requirement for physical presence."
Hundreds if not many thousands of applicants whose applications have been denied in the last five years precisely because they did not meet the residency requirement, because they did not meet a physical presence test, would probably beg to differ.
And of course Justice Rennie and Justice Snider, with others later concurring, have ruled that the current law ("old law" as referenced by the students in their paper) does indeed require physical presence, ruling that "residency" means "presence." And this has indeed been the dominant approach by CIC for at least three or four years.
This criticism may be a bit picayune, since these students were clearly trying to be brief in contrasting the old versus new law, and in particular to offset a big source of problems with the "old law" (old but still applicable) rooted in the varied interpretations of what "residency" meant. And indeed, the paper goes on to flesh this out, describing the various tests which can be applied quite clearly, even if a bit superficially.
But I feel that pointing this out was warranted given the extent to which it is clear that scores of PRs applied based on basic residency, not particularly concerned that, as the CIC website says, that would mean a Citizenship Judge would have to decide if they met the residency requirement given their falling short of actual presence for 1095 days, since they were confident they had settled in Canada, their life was centralized in Canada, and surely the CJ would see that and see that their absences were for temporary purposes which did not amount to any compromise in maintaining residency at their home in Canada. And two or three or four years later their application got rejected . . . got rejected because, based on the applied interpretation of the current law, they failed to meet the law's physical presence requirement.
A quibble; the intent to reside provision:
"A major change within the New Citizenship Act is the new statutory requirement for an applicant to intend to continue to reside in Canada following their grant of citizenship.8 Section 5(1)(c.1) clarifies that the person’s intention must be continuous from the date of his or her application until they take the oath of Citizenship."
"Critics of this change believe this provision creates a “second-tier of citizenship,” as it applies only to naturalized Canadian citizens. They are worried that such a provision runs head-on into potentials issues with possible claims of misrepresentation for individuals who accept employment overseas shortly after obtaining their citizenship. This provision could be subject to Charter scrutiny."
As discussed elsewhere, in more than sufficient depth, the criticism, the worry expressed in the second paragraph, is either not worthy of mention (it is unfounded) or should be accompanied by a disclaimer or caveat to the effect that this worry is largely (if not entirely) unfounded.
That noted, I do like the way they phrased their description: " . . . [this provision] clarifies that the person’s intention must be continuous from the date of his or her application until they take the oath of Citizenship."
That is a key element in this provision. It is clearly aimed at applicants this government perceives to be pursuing a passport of convenience, or as a Federal Court justice once described it, applicants "applying-on-the-way-to-the-airport."
Under the new law how will kids who are between 14-16 give proof of completion of Secondary education in French or English??
Most kids are 17 or more when they pass Secondary....
So kids will have to wait to pass Secondary before putting in their Citizenship application ??? Or will have to give IELTS at 14 !!?
Most kids are 17 or more when they pass Secondary....
So kids will have to wait to pass Secondary before putting in their Citizenship application ??? Or will have to give IELTS at 14 !!?