On "Intent to Reside"

[ama912]

So in the midst of the intentionally vague language of this clause and what followed as an equally intentionally vague clarification by Chris Alexander and his lawyer, what seems to be clear here is that they want you to be residing in Canada from at least the date of your citizenship application to ceremony, if not longer, otherwise you will be subject to receiving a residency questionnaire as a form of punishment, if not denying your application all together. Chris repeatedly says that 'after the ceremony, you're free to do or go wherever you want', clearly implying that you are not so free to do so before the ceremony.

It's understood that this is meant to deter potential abusers and citizenship fraudsters. And sure, a lot of us do and can intend to reside in Canada and have nothing to worry about. But for those of us who cant for some reason, we're screwed. And the government seems to have a lot more to gain from screwing a few applicants in favor of deterring a lot of potential fraudsters that clog their system.

Questions:

• What constitutes an intent to reside? Is it being physically present for at least 6 months a year after your application date?
• If that's the case, and if current routine processing times are 2 years, isnt the effective residence requirement 4 years out of 6 plus the 2 years after the application date? Making it essentially 6 out of 6 years?
• When and how will you need to prove that you have been residing? Is it just when the CIC officer interviews you after your citizenship test? I read somewhere on this forum that the officer will look through your passport for stamps since your application date, and may even photocopy your entire passport. Has any of that happened to you yet?
• If you do receive a RQ, is it going to be for only the period that applies to your residency requirements (the 3 out of 5 or 4 out of 6 years)? Or will it include all years up to the date you received the RQ?
• Finally and most importantly: if you apply for citizenship before the cutoff date for the new rules, would you be exempt from the effects of "intent to reside"? Probably not, huh?

 

[MUFC]

It seems that this intend to reside story, will be the beginning of a new type of RQ but this time for the period after the submission of the application until the oath.
I think that it will create a big mess again and many people will experience huge delays at least in the first years of the actual implementation.

The problem is that it is a vague language and everybody might have their own implementation over it...

For some officers different time frames of absence might be the trigger of that clause...

• If that's the case, and if current routine processing times are 2 years, isnt the effective residence requirement 4 years out of 6 plus the 2 years after the application date? Making it essentially 6 out of 6 years?

Technically the answer is yes, because after the submission of the application the trips outside of Canada should be very short in order to avoid suspicion from CIC.
So the people should stay much longer than 4 years because the intend to reside will be the second stage of residency as a requirement.
The people with slow local offices will suffer most, because that means that the intend to reside will take years after they complete the first stage of residency...

On top of that there is no clarity when all this changes will take effect... no transparency.

 

[dpenabill]

So in the midst of the intentionally vague language of this clause and what followed as an equally intentionally vague clarification by Chris Alexander and his lawyer, what seems to be clear here is that they want you to be residing in Canada from at least the date of your citizenship application to ceremony, if not longer, otherwise you will be subject to receiving a residency questionnaire as a form of punishment, if not denying your application all together. Chris repeatedly says that 'after the ceremony, you're free to do or go wherever you want', clearly implying that you are not so free to do so before the ceremony.

It's understood that this is meant to deter potential abusers and citizenship fraudsters. And sure, a lot of us do and can intend to reside in Canada and have nothing to worry about. But for those of us who cant for some reason, we're screwed. And the government seems to have a lot more to gain from screwing a few applicants in favor of deterring a lot of potential fraudsters that clog their system.

Questions:

• What constitutes an intent to reside? Is it being physically present for at least 6 months a year after your application date?
• If that's the case, and if current routine processing times are 2 years, isnt the effective residence requirement 4 years out of 6 plus the 2 years after the application date? Making it essentially 6 out of 6 years?
• When and how will you need to prove that you have been residing? Is it just when the CIC officer interviews you after your citizenship test? I read somewhere on this forum that the officer will look through your passport for stamps since your application date, and may even photocopy your entire passport. Has any of that happened to you yet?
• If you do receive a RQ, is it going to be for only the period that applies to your residency requirements (the 3 out of 5 or 4 out of 6 years)? Or will it include all years up to the date you received the RQ?
• Finally and most importantly: if you apply for citizenship before the cutoff date for the new rules, would you be exempt from the effects of "intent to reside"? Probably not, huh?

Some preliminary observations:

The inclusion of the "intent to reside" requirement is huge in many respects, but claims about its prospective application and implications have been much exaggerated and, in some instances, grossly distorted. For example, there has been a great deal of misguided ballyhoo about this clause potentially inhibiting the international mobility of naturalized citizens, and indeed in the most commonly shared video of Minister Alexander answering questions about the intent-to-reside clause, many of the questions were focused on this issue, which really is a non-issue. Thus that Q&A session was largely a waste of time and not worth much attention.

It is easy to think that better, more reality-based and practical questions (such as those asked here by ama912), might have illuminated more about how this provision will be implemented. But it is clear Chris Alexander did not personaly participate much (if at all) in drafting this legislation and, frankly, has never appeared to be that familiar with it, and almost certainly is not among those who crafted the amended version of section 5(1) of the Citizenship Act, let alone in particular new subsection 5(1)(c.1)(i), which prescribes that the qualified applicant must be (subject to narrowly drawn exceptions for military or government employment abroad):

. . . a permanent resident who intends, if granted citizenship, to continue to reside in Canada . . .

Thus, even if those asking questions of Minister Alexander asked better questions, I doubt the Minister's responses would have been much informative or illuminating.

In the meantime, one of the questions you pose is easy, since the answer is specifically set out in the transitional provisions of Bill C-24, section 31 of the Bill, section 31(1) to be precise, which prescribes (paraphrasing) that the amended qualifications for grant citizenship will not govern an application made before the day the amended version comes into force. That is,

Finally and most importantly: if you apply for citizenship before the cutoff date for the new rules, would you be exempt from the effects of "intent to reside"? Probably not, huh?

While I am not sure I would describe it as "exempt," the "intent to reside" clause (like the rest of the provisions replacing the current section 5(1) of the Citizenship Act) will NOT apply to any application made by the day before the amended version comes into force.

As I said, that is the easy one to answer because the answer is specifically provided in Bill C-24 section 31(1) (see final version of Bill C-24 here, if link works).

Beyond that there are undoubtedly diverging opinions about the interpretation, application, and implications of subsection 5(1)(c.1)(i) (the so-called "intent to reside" provision).

Some opinions are largely in the vein of the utterly unfounded hyperbole about this provision inhibiting the international mobility of naturalized citizens, or are otherwise alarmist overreactions exaggerating the nature and scope of discretion which is (purportedly) likely to be greatly abused. Regarding such hyped concerns it warrants remembering that discretion does not mean unfettered, uncurbed decision-making driven by personal preference let alone capriciousness. Any discretion must be exercised within the parameters provided by applicable statutes and regulations, and exercised reasonably through a fair procedure.

Nonetheless, there are undoubtedly varying realistic views about the probable impact, application, and implications of this provision.



My opinion as to the impact, application, and implications of the intent-to-reside clause, with emphasis on an intent to continue residing in Canada:

I think the essential characteristics and primary impact of this clause should illuminate the probable impact of this provision, without specifically answering (although I will do so) your questions (other than the easy one, already answered above, that it will not affect anyone with an application already submitted before the provision comes into force).

But it needs to be emphasized that the common short-form references to this provision fail to include what I think is one of its most important terms: "continue."

It is not merely an "intent to reside" requirement, it is an "intent to continue to reside in Canada" requirement. The difference is important.

An individual can intend to do something he is not currently doing. Canadian citizens living abroad, for example, can apply to sponsor a partner for PR so long as they intend to return to Canada to live together. It is sufficient to show a concrete plan to make such a return.

Thus, if the "continue" term was not included, the applicant residing abroad while the application is pending could still intend to reside in Canada if granted citizenship. A plan to return to live in Canada should suffice, that is, if the term "continue" was not a part of this provision.

But the "continue" term is included.

To be clear: it is axiomatic that an individual cannot intend to continue doing something unless he is currently doing that thing.

Thus, an applicant for citizenship cannot intend to continue residing in Canada unless he is currently residing in Canada.

It is a basic principle long applied to citizenship applications that the applicant must be qualified as of the day the application is made and remain qualified throughout the application process, right up to the moment the oath is taken, the moment citizenship is fully conferred.

The implication is rather obvious: if at any time during the processing of the application the applicant is not residing in Canada, the applicant cannot intend to continue residing in Canada, and would therefore NOT meet the qualifications for a grant of citizenship. (This is not to comment on how strictly this will be applied or enforced; I do not know the answer to that.)

This of course highlights the crucial importance of the answer to your first question:

What constitutes an intent to reside? Is it being physically present for at least 6 months a year after your application date?

Thus . . .


What constitutes an intent to reside?

Let me clear the obvious and simple element, which regards the requisite subjective mental state. This provision requires an affirmative mental state, a specific intent to do something, that is the intention to continue residing in Canada. What an individual says is his mental state is of course a key indicator. At the least, then, the applicant must declare (however this is to be done, perhaps it will be part of the signature box declarations, or a separate check box) it is his intention to continue residing in Canada. Thus, if at some point an individual overtly states he does not intend to continue residing in Canada, he is no longer qualified for a grant of citizenship.

In other words, at the least the applicant must affirmatively indicate it is his intent to continue residing in Canada if granted citizenship, and a failure to do this, or an expression of intent otherwise, will disqualify the applicant.

But of course applicants will affirmatively declare it is their intent to continue residing in Canada. Thus the real question, however, as you allude to in your framing of the question, is what factors or circumstances will be considered and how will they be considered, to determine whether this is the applicants actual intent.

We know that what a person says he intends can be disproven by facts or circumstances controverting such an intent. The young woman nabbed outside a boutique with three expensive blouses stuffed under her coat is not going to get far with "I intended to pay for them, but I was just going to the car to get the money from my boyfriend." (Actual case I once had, a long, long time ago, in a land far away, in which one might say I was representing a client desperate to avoid jail.)

Likewise, the PR who obtains a U.S. Green Card after applying for Canadian citizenship, for example, has indicated a contrary intent, an intent to reside in the U.S., even if the individual emphatically asserts that his real intent is to continue residing in Canada.

But what about the applicant whose spouse and children are living abroad in a home owned by the applicant? Is that enough to indicate he does not intend to continue living in Canada when granted citizenship?

Which leads back to the question itself:

What constitutes an intent to [continue to] reside? Is it being physically present for at least 6 months a year after your application date?

(I have added here "continue to" since it is a crucial element.)

I highly doubt there will be any definitive formula, any definitive criteria. It will not be a matter of having spent a certain number of days in Canada and therefore the requirment is met, or having spent a certain number of days abroad therefore the applicant does not have the requisite intent. It will be like most determinations of this sort made by CIC, that is, it will depend on an assessment of the totality of facts and circumstances.

What facts and circumstances will be relevant? most important? what impact will they have?

I referenced a couple already: obtaining status to reside in a different country; family living abroad in a home owned by the applicant. Neither of these will probably have an absolute effect, but rather simply be big factors pushing the determination toward a finding the applicant lacks the requisite intent. That said, obtaining a U.S. Green Card will probably make it very difficult to persuade CIC the applicant does not intend to reside in the U.S., given that is a requisite for the Green Card.

What about the particular scenario you refer to, being abroad for six months? It is worth remembering that a person can establish residence in a place in a single day. And in contrast a person can be boarding in a place for many months without establishing that as his place of residence. Again, it is not a counting of days that matters, but rather the totality of facts and circumstances, even though of course the total number of days matters, is of some import.

The applicant who goes to his home country for just a week and while there sets up a business, buying property for the business and entering into a lease for or purchases a home, and then returns to Canada is rather distinctly telegraphing it is his intent to return to his home country to live, not an intent to continue residing in Canada. In contrast, if an applicant's parent in the home country falls ill and there is no other family to care for and attend to the parent in the terminal stages of life, and that applicant goes to his home country for seven or eight months while the application is pending, not intending to reside in his home country but staying there temporarily to attend to the ill parent, that should not indicate the applicant fails to meet the intent to continue residing in Canada requirement.

A citizenship applicant who flies to New York City overnight, just one day, to interview and accept a job offer, evidences a lack of intent to continue residing in Canada. The young woman applying for citizenship who, during the time the application is in process, attends a six month program at a university in Australia as part of her post-graduate program in Canada, probably does not indicate a lack of intent to continue residing in Canada.

Of course the longer the applicant is abroad, the more that suggests residing abroad, and an applicant residing abroad cannot intend to continue residing in Canada. And remember, when CIC asks for information about place of residence, it asks for it by the month. That's a clue.

But how any of these situations is actually handled by CIC will of course depend on all the particular details in the individual case and what CIC perceives to be the case.

My sense is that this particular question, your first question, but framed somewhat differently, is probably the main, overriding question many will have regarding how the intent clause is applied. I would frame it this way:

What facts and circumstances will support (or contradict) an intent to continue residing in Canada?

That is the big question, which inherently embraces a wide range of subordinate questions about how this or that particular fact or circumstance will affect CIC's determination as to the applicant's intent.

This leads to your remaining questions. While most of your remaining questions are about proving the requisite intent, one is more about the overall impact of this requirement:

. . . if current routine processing times are 2 years, isnt the effective residence requirement 4 years out of 6 plus the 2 years after the application date? Making it essentially 6 out of 6 years?

"Yes," I would say, with some qualification . . .

Net impact of the intent requirement on period of required residency:

I would also frame this question somewhat differently; I would ask:

Since the intent provision effectively requires the applicant to continue residing in Canada while the application is pending, doesn't this in effect mean the period of required residence is actually 4/6 years plus the time it takes to process the application?

And the answer to this is a simple "Yes."

There are some nuances, recognizing that CIC may (and I suspect will) allow for periods of residence abroad for clearly temporary purposes (somewhat illustrated in examples I used above), but the general answer is indeed quite simple, yes this provision has the effect of adding the processing time to the requisite time spent residing in Canada in order to qualify for the grant of citizenship.

The two remaining questions are largely about proof and the mechanics of CIC's determination. That warrants a separate posting.

 

[dpenabill]

Elements of proof and determination as to the applicant's intent to continue residing in Canada -- Part I:

Questions:

• When and how will you need to prove that you have been residing? Is it just when the CIC officer interviews you after your citizenship test? I read somewhere on this forum that the officer will look through your passport for stamps since your application date, and may even photocopy your entire passport. Has any of that happened to you yet?
• If you do receive a RQ, is it going to be for only the period that applies to your residency requirements (the 3 out of 5 or 4 out of 6 years)? Or will it include all years up to the date you received the RQ?

This post is a continuation of my response to a post in which the above questions were posed regarding subsection 5(1)(c.1)(i) in the amended version of the Citizenship Act (the so-called "intent to reside" provision), which is not in force as yet. I will elaborate further in yet another post, to follow, because I think what is more important is what looms behind these particular questions.

But, these particular questions have relatively straight-forward answers (so long as one does not delve into what underlies the questions and the implications involved).


Q: When and how will you need to prove that you have been residing?

A: There are two aspects to this: (1) routine applications and (2) RQ'd or residency case applicants.

For routine case processing it will largely be similar to how it is now: what is submitted with the application is the primary manner in which the applicant submits proof of qualification for the grant of citizenship, including residency. This includes the application form, supporting documents, and the residency calculation, followed by an interview to verify documents and some of the information. If CIC is satisfied, residency is proven.

When the revised version takes effect, and for those who apply after it takes effect, the application form will probably change to include new information, a declaration of intent, and some additional documentation (such as CRA documents to show compliance requirements of the Income Tax Act, as specified in subsection 3(1)(c)(iii) as added to the Citizenship Act). The residency calculation will change of course. The applicant will still go to a documents verification interview. If CIC is satisfied, it's a go, oath gets scheduled.

For RQ'd or otherwise a residency case applicant, the RQ process will probably continue to be similar as it is for the RQ'd applicant now, but of course the scope of inquiry will be expanded (see next post going into more detail in this regard). Essentially the response to RQ is the applicants opportunity to prove his case, although there is also the hearing . . . currently and for the near future that would be a hearing with a Citizenship Judge . . . at which an applicant can make further submissions of evidence or proof.



Q: Is it just when the CIC officer interviews you after your citizenship test?

A: Actually many people seemed to be confused about the interview, and seem to think it is an opportunity to prove one's case (including residency).

There are three ways the applicant proves his case:
-- information and documentation submitted with the application, including residency calculation (subject to interview verification)
-- responses to requests for further information, including especially the big one, the RQ
-- submissions made in a hearing with a Citizenship Judge (this could be hearing with a Citizenship Officer in the future)

The interview is actually a verification process. The interviewer checks documents and asks a few questions for the purpose of verifying the applicant's identity and information in the file, in the record. If that information, already in the record, shows the applicant to be qualified (including residency requirment met), and the interviewer is satisfied that the documents presented and answers given verifies that information, the applicant in effect passes (I believe someone other than the interviewer reviews the whole file and makes the formal decision to grant citizenship). If the interviewer is not so satisfied, that is if the interviewer identifies unresolved questions, concerns, or such, further processing is done.

In particular, the interview is not generally an opportunity for the applicant to prove his case. If the file to that stage proves the case (including residency) to CIC's satisfaction, the applicant is on track to be given the oath. If it is not to CIC's satisfaction, further processing takes place; for those given pre-test RQ it will be further processing the response to the RQ or perhaps that plus a request for further documents; for some who have not previously been issued RQ, RQ will then be issued and the process attendant RQ will follow.

Some individuals bring additional documents to the interview, hoping that it will make a positive difference. It might on some occasions, for certain individuals, in certain situations where CIC is leaning toward being satisfied anyway. If CIC generally, or the interviewer in particular, really has an outstanding question, it is not likely presenting additional documents at the interview will avoid residency-case-processing. It is not a setting for proving one's case, but is, again, largely about verification.

(Note: the written test, in contrast, is about proving the applicant meets the requirement regarding sufficient knowledge of Canada.)



Q: I read somewhere on this forum that the officer will look through your passport for stamps since your application date, and may even photocopy your entire passport. Has any of that happened to you yet?

A: Without revisiting my notice for the interview, as I recall it specifically did ask for me to bring the original and a photocopy of all pages in my passport(s). This was nearly a year ago (last March), well before the second reading of Bill C-24. And the interviewer did indeed take the photocopies and also glanced through all pages of both my passports, including the new one issued after the date I applied for citizenship.

Among formal "reasons to question residency" used by CIC for a long time, a passport stamp indicating a recent return to Canada in time to attend the test and interview was one . . . that is, at the interview CIC has long looked for stamps indicating a recent return to Canada and issued RQ for that.

Some anecdotal reports, however, say that the interviewer (in their case) did not look at anything in the passport beyond stamps for the relevant four years. (I suspect many did not notice the interviewer at least glancing at post-application pages of the passport.)

In any event, obviously the interviewer will be at least glancing at post-application pages in passports for those applicants being processed under the new provisions, and indeed the level of scrutiny relative to this is sure to increase, a lot more attention to be given to post-application travel.



Q: If you do receive a RQ, is it going to be for only the period that applies to your residency requirements (the 3 out of 5 or 4 out of 6 years)? Or will it include all years up to the date you received the RQ?

A: Foremost, once RQ is issued, all elements of residency are in issue, the applicant has the burden of proof to establish meeting the residency requirement, and the range of information relevant to CIC's assessment is currently broad, and it will be much, much broader once subsection 5(1)(c.1)(i) (the "intent to reside" provision) applies. Only period of time that counts, for purposes of calculating the number of days present in Canada, is the relevant time period (currently four years preceding date of application; to be six years). But facts and circumstances outside those relevant years may be considered for purposes other than calculating time present.

In particular, the current RQ form focuses on the relevant residency period but does ask for some information up to the date of the response to RQ. Again, currently the calculation of days present in Canada is explicitly limited to the relevant four years. Thus presence or absence after applying is only tangentially relevant, only relevant to other issues (such as credibility, continued valid PR status, and for those with a shortfall application evidence of having a life centralized in Canada).

For those applicants subject to subsection 5(1)(c.1)(i) (the "intent to reside" provision), there is little doubt there will be a substantial increase in the extent to which the RQ asks for both information and documentation relative to the time period since applying and up to the date of submitting the RQ response. And given subsection 5(1)(c.1)(i) (the "intent to reside" provision), many aspects of an applicant's life after the date of applying will be directly relevant.


As already noted, while these are good practical questions, there is far more lurking in what underlies these questions. So I will follow this post with more in-depth observations about the impact subsection 5(1)(c.1)(i) is likely to have in the processing of grant citizenship applications.

 

[dpenabill]

Elements of proof and determination as to the applicant's intent to continue residing in Canada -- Part II:

Questions:

• When and how will you need to prove that you have been residing? Is it just when the CIC officer interviews you after your citizenship test? I read somewhere on this forum that the officer will look through your passport for stamps since your application date, and may even photocopy your entire passport. Has any of that happened to you yet?
• If you do receive a RQ, is it going to be for only the period that applies to your residency requirements (the 3 out of 5 or 4 out of 6 years)? Or will it include all years up to the date you received the RQ?

This post is a further continuation of my response to a post in which the above questions were posed regarding subsection 5(1)(c.1)(i) in the amended version of the Citizenship Act (the so-called "intent to reside" provision), which is not in force as yet.

As I said in the first part of my response to the questions posed, it warrants emphasizing that the new provision requires the applicant to have the intent to continue to reside in Canada, which in effect means that to be qualified for citizenship, and to remain qualified right up to the moment the oath is taken, the applicant must in effect continue to reside in Canada right up to the moment of taking the oath (with some allowance, probably, for temporary exceptions). This is discussed in more detail in the first of the two previous posts.

While "intent" is of course a subjective state of mind, there is little doubt that this requirement is largely focused on a range of facts and circumstances which, in the view of CIC, potentially indicate the lack of such intent.

That said, upfront the new application form will almost certainly require the applicant to affirmatively declare it is his intent to continue residing in Canada if granted citizenship. Whether this is incorporated into the signature box declarations, or added as a checkbox, or a checkbox plus signature line specifically for it, or even as a separate document declaring such intent, I cannot guess. Does not matter which it is, the effect will be the same: the applicant will be required to affirmatively declare the requisite intent, an intent to continue residing in Canada if granted citizenship.

So that declaration is the first element of proof of having the requisite intent. Beyond that, perhaps applicants will be required to re-affirm this at the time of the test-interview (orally or perhaps another signed declaration), perhaps even upon arrival at the oath ceremony (similar to current practice in which applicants must affirm, upon arrival at oath ceremony, that they do not have any pending criminal charges).

Applicants may be required to affirm that they have in fact continued to reside in Canada while the application is pending.

In any event, the initial affirmation of intent in the application plus any subsequently required re-affirmation should suffice for most applicants. That is, it should be similar to current practice pursuant to which the residency calculation submitted with the application plus verification at the interview (comparing passport stamps for example) is sufficient proof of residency for most applicants.

Where issues or concerns will arise out of the intent element will be in cases where CIC perceives there are reasons to question the applicant's residency, or question the applicant's intent.



Impact where there are reasons to question residency:

The crux of the questions posed by ama912 has to do with applicants for whom CIC identifies reasons-to-question-residency ("residency" here referring generally to the prescribed qualifications for grant citizenship set out in subsections 5(1)(c) and 5(1)(c.1) of the revised Citizenship Act).

I cannot guess the extent to which CIC will develop and implement specific practices based on whether the questions or issues derive more specifically from the calculation of presence (subsections 5(1)(c)(i) and 5(1)(c)(ii) as amended and added) versus relative to the intent clause in particular (subsection 5(1)(c.1)(i) as added). It is possible, for example, that a wholly separate Intent Questionnaire could be developed and used in cases where CIC perceives the applicant is applying for a passport of convenience or CIC otherwise perceives there are indications the applicant lacks the requisite intent.

I doubt that is the way it will go, but of course I really do not have any insider information as to just what policies, practices, and forms CIC is developing in order to implement and enforce these provisions.

Nonetheless, what can be discerned, in particular, are some key elements or factors likely to play a significant role in CIC's assessment and determination relative to the intent requirement.

Unless there is a very specific issue which can be resolved by a specific document request (much like currently CIC is issuing specific document requests rather than a full blown RQ to some applicants), I think that CIC will approach cases involving questions based on 5(1)(c) or 5(1)(c.1) relatively if not very much the same. In other words, I suspect the fulcrum will continue to be essentially along the lines of cases in which CIC identifies a reason to question residency, which results in a full-blown residency examination, that is the issuance of the notorious RQ (Residence Questionnaire).

Currently, once an applicant is issued RQ, the specific factor which triggered its issuance no longer controls, but rather residency itself is in issue and the applicant has the burden of proving all elements necessary to establish residency. That is, again, the current practice. That will continue to be the practice, it seems likely to me, and thus in any case CIC perceives a reason to question either the physical presence element, or the intent element, my bet is that a full-blown RQ will be issued.

And the full-blown RQ will encompass physical presence during the relevant six years, place of residence to date, and other factors and circumstances relevant to indicating an intent to continue residing in Canada.

That is probably worth repeating:

If RQ is issued, it will (probably) encompass all the elements in subsections 5(1)(c) and 5(1)(c.1), and thus encompass information and documentation regarding:
-- physical presence during the relevant six years
-- place of residence to date (date response to RQ is submitted)
-- other factors and circumstances relevant to indicating an intent to continue residing in Canada

For example, even if under the new physical presence requirement it is merely a question about actual presence for at least 183 days in a particular year that triggers the RQ, once RQ is issued the applicant will (probably will) be required to submit a comprehensive response to RQ covering all aspects of the physical presence requirement (1460 days within the relevant six years, plus at least 183 days in each of four of those six years) plus information and documentation relevant to showing the applicant's intent to continue residing in Canada.

At this juncture a step back is warranted to take note that there are two major aspects in play:

(1) The impact the intent to reside clause will have on what constitutes reasons to question residency

(2) The impact the intent to reside clause will have on what proof is necessary or sufficient for CIC to approve the grant of citizenship (which implicitly includes the converse: what facts or circumstances will influence CIC to conclude the applicant fails to have the requisite intent to continue residing in Canada)


Impact the intent to reside clause will have on what constitutes reasons to question residency

I will not here attempt to exhaustively illuminate the probable impact the intent to continue residing in Canada clause will have in terms of what will constitute reasons to question residency.

Since 2012 CIC has made a concerted effort to conceal, from the public, its reasons to question residency. We know what many were prior to 2012 (they were enumerated in an appendix to CP 5). We ascertained the triage criteria implemented in 2012 (OB 407 version of the File Requirements Checklist). We learned some aspects of how those were subsequently amended, modified, or clarified through some completed ATIP requests. But we do not know the full extent of what the criteria currently are or how they are being interpreted and applied. And we certainly are not apprised of what additional changes there will be following the implementation of the revised section 5(1).

But there should be little or no doubt that the addition of subsection 5(1)(c.1) (the intent clause) will result in additional criteria and more importance given to some existing criteria.

Among factors easily quessed to likely be of increased import:
-- immediate family living outside Canada
-- employment ties outside Canada
-- extended absences after applying
-- status to live or work in another country
-- passport stamps indicating return to Canada in time to take test or attend oath

These are likely to increase the odds RQ will be issued, and they will also be given substantial attention in the course of evaluating residency, including the applicant's intent to continue residing in Canada.

In more general terms, it might be worth noting that once the intent to continue residing in Canada clause is in effect, CIC will probably be looking at any aspect of both time abroad and ties abroad, and RQ could be triggered if in CIC's view either the amount of time abroad, or an applicant's continued ties abroad, indicate the applicant is seeking a passport of convenience. If so, RQ. And if RQ, these same general elements will factor largely in the assessment of the applicant, including assessing whether the applicant meets the intent requirement.



But the impact goes well beyond that, well beyond additional reasons to question residency, well beyond the general impact of the circumstances raising a question about meeting the intent element.

The biggest impact will be on the scope of information and documentation CIC can, and probably will, not just request but demand from those issued RQ.

This is a big, big part of why I say the impact of subsection 5(1)(c.1)(i) (the so-called "intent to reside" provision) is huge.

This is about what RQ will look like after all the remaining provisions in Bill C-24 come into force.

Caveat: I do not know to what extent CIC will immediately roll-out a comprehensively expanded RQ to incorporate information and documentation relevant to subsection 5(1)(c.1)(i) (the "intent to reside" provision). Frankly, I suspect that while there will be a lot of major changes implemented immediately . . . new application form, new residency calculator, new RQ form incorporating at least some aspects of what is changed, significant changes to internally used checklists at CIC (like the File Requirements Checklist, the checklist interviewers use, and so on), among others . . . there will also be a long transitional period during which additional changes are adopted and implemented gradually, over the course of months if not years.

In particular, I suspect that the RQ form and questioned-residency-case processing will change significantly immediately, but additionally it will be gradually changed and adapted far more so over the long run.

That is, some of the impact is likely to be more or less immediate (for applicants who apply after the revised provisions come into force). I am, of course, far from sure which aspects will have an immediate impact, but I think it will include changes to RQ and the process which broadly expand the scope of demanded (required) information and documentation.

Currently the RQ form is largely a request for certain documentation. Omissions can factor into what reasonable inferences CIC can make, and some omissions which are deliberately misleading could constitute misrepresentation, but generally the applicant is not disqualified for failing to provide this or that particular documentation unless the failure rises to the level of failing to prove residency.

The intent clause will in effect allow CIC to require, not just request, a broad range of information and documentation.

For example, currently the failure to submit documentation as to the applicant's interest in residential property abroad is of little significance. Under the revised requirements, the RQ will quite likely require applicants to disclose ALL property interests abroad. Obviously, continued ownership of a home abroad, for example, is evidence the applicant may have an intent to live in that home abroad.

Similarly as to any employment or business abroad, including employment after applying, including any business interests owned or obtained after applying. These are evidence of ties abroad which could indicate an intent to reside abroad.

A failure to disclose such interests will, of course, constitute a material misrepresentation of fact, and if discovered by CIC during the application process this will be grounds for denying the application, and if discovered ten years after the individual becomes a citizen the misrepresentation by omission will be grounds for revoking citizenship (as obtained by fraud).

Frankly the above just scratches the surface of what will be relevant once subsection 5(1)(c.1)(i) (the "intent to reside" provision) applies. There is likely to be Federal Court review analyzing the proper interpretation, scope, and application of this requirement for many, many years. (Interpretation of the current residency requirement continues to be the subject of extensive Federal Court attention, more than three decades after it was adopted and first applied, and the new requirement is at least as complex, albeit not quite so vague, as the current provision.)


I have oft said I would have liked to see the Canadian Bar Association and other commentators on Bill C-24 focus on at least some of these very real and practical aspects of the intent element. Unfortunately red herrings ruled the day and dominated the questions being asked -- although it probably would not have mattered much if real questions got asked back then, last spring when the Bill was going through its second reading, since Harper's government had no intention to allow even the slightest amendments.

 

[dpenabill]

Some overriding and concluding observations:

Should be obvious the analysis and commentary in the above posts was not the product of just a couple days' efforts. It is more or less an accumulation of analysis, observations, and comments I have made going back to late February last year since shortly after Bill C-24 was tabled. Substantial portions are rewritten from things I have posted before, mostly elsewhere (in a couple other forums similar to this one).

The questions posed by ama912, however, reminded me of what virtually no one was asking last spring, when Bill C-24 was going through the second and third readings, real questions, practical questions, questions about what this little phrase in Bill C-24, added subsection 5(1)(c.1)(i) (the "intent to reside" provision), was going to mean for real immigrants on the path to citizenship.

These questions reminded me what a dismal, disappointing submission the Canadian Bar Association made to Parliament. That submitted by CARL and the BC Bar was better, mostly about other parts of the Bill, but failed to address the profound impact this one provision will have on so many PRs striving to attain Canadian citizenship.

In particular, what so-called stakeholders submitted last spring failed to consider this provision in conjunction with the previous two plus years of RQ fiasco which mired many thousands of qualified applicants in a process which was far too invasive and which took a grossly unacceptable amount of time to process (CIC is only now promising to fully deal with the backlog created by the end of year).

It warrants adding, moreover, it is not merely a reflection of my own thinking, but rather incorporates several years of research, including years of reading and studying and analyzing anecdotal posts and actual citizenship cases resulting in Federal Court decisions, in addition to a lot of collateral study regarding residency issues in many contexts (from tax law to qualifying for office in a particular jurisdiction).

Reckless insinuations and misleading exaggerations still tend to dominate discussions about the probable interpretation and application of subsection 5(1)(c.1)(i) (the "intent to reside" provision). I find this frustrating because there are, in contrast, real concerns, huge practical considerations, and genuine questions to be asked and answered, all of which tend to be lost in the continuing ballyhoo focused on hyperbolic imputations of capriciousness and malicious injustices.

The general, overriding import of the provision is obvious. It is intended to discourage those seeking a passport of convenience.

Its practical impact, however, looms as an open question with a great many possibilities, particularly in how it will affect those issued RQ in the future.

In a less complicated, less mobile world, it might be easy to conclude that the target and means are concurrent and just, the objective legitimate and the means fair (even if if one disagrees with the objective). But this is a complicated, highly mobile world, and more and more immigrants have a commitment to a life in Canada while at the same time being engaged in matters across international borders and maintaining a range of ties in other parts of the world. To what extent will the way this provision is actually applied have unintended consequences affecting the nature and character of who is encouraged to immigrate to Canada in the future, to the detriment of Canada and its economy, its society? And to what extent will the system of immigration be fair and just to those who do come to Canada?

This provision deserved a profound and probing debate in Parliament before it was adopted. None was had. It was herded through the process much like the dismantling of the long gun registry. The PMO issued the orders. The Conservative majority marched and carried them out.

It is now law. It will soon, sometime this year, be implemented and apply to all new applications for citizenship. PRs with family outside Canada will be affected. Professionals with career demands going beyond the border will be affected. Students with a long-term educational plan that includes a term of studies outside Canada will be affected. New immigrants struggling to get their life in Canada operating in full gear and in the meantime dependent on contacts and business opportunities outside Canada will be affected.

And sure, it is indeed quite likely to dramatically reduce the number of new citizens who were in the game for a passport of convenience. At what cost to legitimate immigrants and their families?

Whether CIC will approach these cases openly, fairly, justly, humanely and compassionately, remains to be seen.

 

[ama912]

Thank you, dpenabill. Your input, as usual and thankfully so, is very helpful and informative.

PRs with family outside Canada will be affected. Professionals with career demands going beyond the border will be affected. Students with a long-term educational plan that includes a term of studies outside Canada will be affected. New immigrants struggling to get their life in Canada operating in full gear and in the meantime dependent on contacts and business opportunities outside Canada will be affected.

The above are only a few scenarios of legitimate applicants who will be affected. And the more we become aware of the potential impact of this provision the more we can plan ahead for major practical and life changing decisions.

this is a complicated, highly mobile world, and more and more immigrants have a commitment to a life in Canada while at the same time being engaged in matters across international borders and maintaining a range of ties in other parts of the world. To what extent will the way this provision is actually applied have unintended consequences affecting the nature and character of who is encouraged to immigrate to Canada in the future, to the detriment of Canada and its economy, its society? And to what extent will the system of immigration be fair and just to those who do come to Canada?

Very well said. That just sums up a small part of the practical/complex impact this provision will have. Thanks again.

 

[screech339]

Thank you, dpenabill. Your input, as usual and thankfully so, is very helpful and informative.

The above are only a few scenarios of legitimate applicants who will be affected. And the more we become aware of the potential impact of this provision the more we can plan ahead for major practical and life changing decisions.

Very well said. That just sums up a small part of the practical/complex impact this provision will have. Thanks again.

Despite all the literature made on this thread, you do realized that the "intent to reside" clause only applies to time of submitting application to time of oath. Not after you become Canadian. So no worries about losing their citizenship because they left Canada after becoming Canadian.

 

[bambino]

If someone took their oath in the morning, got on the plane in the afternoon and never came back to Canada, did they have "intent to reside" throughout the time period you mentioned? Suppose they had bought their one-way ticket and arranged their affairs in Canada a week before the oath.

 

[screech339]

If someone took their oath in the morning, got on the plane in the afternoon and never came back to Canada, did they have "intent to reside" throughout the time period you mentioned? Suppose they had bought their one-way ticket and arranged their affairs in Canada a week before the oath.

There is nothing that Canada can do about that. As Canadian, they have mobility rights to leave Canada as so they wish. Canada cannot stop that from happening. No difference from Canadian born.

So instead of "applying for citizenship on their way to the airport", it is now "on their way to airport after oath".

 

[bambino]

Of course there is something Canada can (will be) able to do about it. The Citizenship Act contains provisions for revocation of citizenship on the grounds of false representation, fraud or by knowingly concealing material circumstances. The person in my example obviously didn't have any intention to continue to reside in Canada, at least one week before his oath.

Whether or not the Minister will act on it is immaterial. The problem is that the legislation can reasonably be interpreted as allowing him to do it. Don't take my word for it; the CBA and several prominent immigration lawyers have said the same thing.

 

[screech339]

Of course there is something Canada can (will be) able to do about it. The Citizenship Act contains provisions for revocation of citizenship on the grounds of false representation, fraud or by knowingly concealing material circumstances. The person in my example obviously didn't have any intention to continue to reside in Canada, at least one week before his oath.

Whether or not the Minister will act on it is immaterial. The problem is that the legislation can reasonably be interpreted as allowing him to do it. Don't take my word for it; the CBA and several prominent immigration lawyers have said the same thing.

It is very hard to prove that you intended to leave Canada permanently during the application process. One can always have a change of heart the day after they get their Canadian Passport and leave permanently, meanwhile you actually intended to stay in Canada during the application process. The lawyers would have to prove malice on the applicant's part in false representation which is quite difficult. Beside the law says it only applies to the "time of application to oath". So even if the applicant has no intention of staying permanently in Canada, he/she did abide by the law by maintaining the "intend to reside" clause to the application process as long as he/she maintained residency in Canada.

 

[ama912]

Despite all the literature made on this thread, you do realized that the "intent to reside" clause only applies to time of submitting application to time of oath. Not after you become Canadian. So no worries about losing their citizenship because they left Canada after becoming Canadian.

Yes, that's the problem of this provision and the point of the literature on this thread.

 

[bambino]

It is very hard to prove that you intended to leave Canada permanently during the application process. One can always have a change of heart the day after they get their Canadian Passport and leave permanently, meanwhile you actually intended to stay in Canada during the application process. The lawyers would have to prove malice on the applicant's part in false representation which is quite difficult. Beside the law says it only applies to the "time of application to oath". So even if the applicant has no intention of staying permanently in Canada, he/she did abide by the law by maintaining the "intend to reside" clause to the application process as long as he/she maintained residency in Canada.

Sorry, that's nonsensical. "Malice" is completely irrelevant here. And it's not about proof " that you intended to leave Canada permanently during the application process".

All the Minister has to show is that the person did not intend, "if granted citizenship, to continue to reside in Canada." That won't be very hard in the example I gave.

 

[dpenabill]

Let's try to be clear: the impact of the intent-to-reside clause after the oath is NOTHING, not an issue, but rather a red herring which again and again, and here again as well, is a distraction. (I said this emphatically above and before.) There should be no need to discuss this NON-issue.

But the intent-to-reside clause might have (depending on how CIC applies it) a hugely profound, detrimental impact on qualified applicants.

That is one thing I attempted to illuminate above, just a part of what I attempted to illuminate above. (Much of the above was specifically about the simple mechanics of what the provision means and how it will apply, with elaboration as well regarding the range of possibilities beyond its basic meaning and application. For example, the observation that this clause has the effect of making the residency requirement four years plus processing time.)

If it is applied reasonably, judiciously, fairly, with humane and compassionate consideration given to the many vagaries of immigrant lives, it may very well do what it is clearly intended to do, which is discourage and prevent those seeking a passport of convenience, without unduly hampering the path to citizenship for otherwise qualified immigrants seeking to establish a life centralized in Canada.

The risk that this provision will be applied in a way that is overreaching and unfair, however, is high. Not because CIC will (as some claim) be capricious and arbitrary, but because there is a tendency for big bureaucracies (especially CIC) to mechanically apply stringent rules, particularly once something tips the matter off the routine track.

That is why I tried to emphasize that the biggest impact of this provision will be on those who are issued RQ. Being issued RQ does not mean an individual is not qualified. And if RQ was only issued to those applicants who did not meet the residency requirement, many of us (me included) would have few if any qualms about this intent-to-reside clause.

But the legacy of RQ'd cases goes well beyond even qualified applicants for whom it is reasonable to question whether they met the residency requirement. And the impact of RQ as is, now, under the current version of section 5(1), is a profoundly intrusive probe into the personal and private affairs of the immigrants life which causes an excessive delay in processing for many thousands of applicants, delays which are well beyond what should be acceptable let alone what is reasonable. There are still qualified applicants waiting for a decision who applied a year or even more before I did, and I have already been a citizen for nearly a year. There is no way that can be considered anything other than an injustice. And the irony is I already had a passport from a country which allowed me largely unfettered travel with minimal need to obtain visas in advance, but for many, many among those unfairly bogged down in clearly excessive delays, the delay deeply restrains their international mobility often with a direct impact on their income earning capacity if not their careers.

As I tried to illuminate above, this intent-to-reside clause will undoubtedly expand reasons to question residency. That is, it will expand the scope of those likely to be issued RQ.

Sure, for many this will be legitimate, within the scope of what this provision is intended to accomplish. But once this provision takes effect, for example, a PR who has already submitted a citizenship application whose parent in the home country suddenly falls severely ill, and has no one else to attend to him or her, will have to fear that any return to the home country for an extended stay to care for his parent might be construed, by CIC, to be "residing" abroad, thus rendering this person no longer qualified for citizenship. This is just one example among many, many possibilities.

In addition to expanding the range of reasons to question residency (that is, what will trigger CIC's issuance of RQ), this intent-to-reside clause will greatly expand the scope of what is relevant in the RQ process. This, I think, is where the greatest danger of an overreaching application of the intent-to-reside clause lurks ominously.

Of course I do not know to what extent CIC will immediately expand the scope of its requests in RQ. My sense is that initially there will a tempered approach, but obviously absences, employment, and residence after the date of applying will become directly relevant and probably within the scope of the RQ. I think CIC will move somewhat slowly in how it approaches applying and enforcing the intent-to-reside clause, recognizing that no matter how it applies it there are bound to be judicial challenges. CIC will want to, as one might say, stack-the-deck with easy cases in its favour, in the short term. And perhaps by then there will be another government, a different Minister, a different approach to scrutinizing applicants for citizenship.

But the slippery slope is there, and actually it is a very slippery, very steep slope.

Make no mistake: because the intent-to-reside clause is actually a requirement that the applicant intend to continue to reside clause, it literally imposes a more stringent burden on applicants during the time the application is pending than it does for any of the preceding six years. During any of the preceding six years the PR can reside abroad so long as the duration of that does not preclude the PR from meeting the physical presence requirement (at least 183 days in each of four of those six years, plus 1460 days overall in those six years), but after applying any period of residing abroad (if the intent-to-continue-to-reside clause is applied literally) will disqualify the individual.

I do not know that CIC will apply the clause this literally. Among the many dangers lurking in this is that it will apply the clause this literally to some applicants and not others, and that the decision will be in a stage of processing which effectively is beyond the scrutiny of judicial review (similar to how the decision whether or not to issue RQ, or to schedule an applicant for a CJ residency hearing, is currently beyond the scrutiny of judicial review).

Sure, the vast majority of immigrants on the path to citizenship will not be detrimentally affected. The test of justice is not how a law affects the majority, but how it affects everyone. At a minimum it is likely that every year there will be a few thousand qualified applicants who are directly affected to their detriment by this provision. How severely their reasonable expectations, as Canadians (Canadian Permanent Residents) will be compromised remains to be seen, depending on how strictly CIC applies and enforces this provision.

I do not buy into the if-just-one-person-is-treated-unjustly approach to measuring the fairness, the justice, of a policy or practice, but I am certain that even if a hundred thousand are unaffected but a thousand are unfairly affected, that is not just, not fair.

As I said before, a lot remains to be seen.

I really wish there had been a more robust debate about this provision (and other provisions as well) in Parliament before it was adopted . . . even if eventually it was to be adopted as is. The means, the debate, is as important to a democratic process as is the outcome.

I should note that many elements in Bill C-24 were long, long overdue, and there has been a consensus throughout most of Canada agreeing with the majority of the fixes implemented in this legislation. Federal Court justices have been railing about problems with the current residency provision for over three decades, many overtly calling on Parliament to address the problems, including the Chief Justice a couple years ago issuing a blunt statement in effect demanding Parliament fix the residency requirement.

And an intent-to-reside clause is hardly uncommon. Whether to require this is a policy choice, a political decision, for Parliament to make, and it has made it. But given its precise, literal language (which is largely controlling when it comes to the interpretation of the provision), it is fraught with risks of being applied in a manner that, as I previously suggested, could have profound unintended consequences, not just to the detriment of a few thousand immigrants, here and there, but to the whole system of immigration in Canada. These issues were worth debating. That did not happen.