Grants of Citizenship under the New Citizenship Act

Transcription

1 IMMIGRATION LAW NOT BUSINESS AS USUAL PAPER 5.3 Grants of Citizenship under the New Citizenship Act These materials were prepared by Vivian Yuen and Will Tao, Articling Student, both of Larlee Rosenberg, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, October Vivian Yuen and Will Tao

2 5.3.1 GRANTS OF CITIZENSHIP UNDER THE NEW CITIZENSHIP ACT I. Introduction... 1 II. Why Was C-24 Introduced?... 2 III. What Are Some of the Specific Changes that Are Being Made to the Way Citizenship is Granted in Canada?... 2 A. Residence and Physical Presence... 2 B. Intent to Reside Provision... 3 C. Minors, Language Abilities, and Citizenship Test... 3 D. Fast Track and Bars... 4 E. Administrative Changes Cost and Fines Consultants Must Now Be Regulated Applications Must Be Complete and May Be Deemed Abandoned... 5 F. Discretionary Grants... 5 G. Decision-Making Processes... 5 H. What Future Changes Are Expected to the Granting Provisions?... 6 IV. Conclusion... 6 V. Appendix A Table Summary of Changes... 8 I. Introduction Bill C-24, or the Strengthening Canadian Citizenship Act, was introduced on February 6, 2014 and received Royal Assent on June 19, Described as the first comprehensive reforms of the Citizenship Act 1 since 1977, the bill has a few central purposes: (1) to reinforce the value of Canadian citizenship; (2) to crack down on citizenship fraud; and (3) to protect and promote Canada s interests. 2 The Canadian Government ( the Government ) has introduced a series of changes aimed in each of these three areas. 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 R.S.C. 1985, c. C-2. 2 Citizenship and Immigration Canada, News Release Strengthening and Modernizing the Citizenship Act, ( )

3 5.3.2 This paper will provide a roadmap of the key changes relating to grants of citizenship, discuss how the provisions looked under the Citizenship Act before the changes ( Old Citizenship Act ) versus after the changes ( New Citizenship Act ), 3 and speculate on what some future changes may look like. II. Why Was C-24 Introduced? In addition to the three purposes listed above, the Government s underlying impetus for introducing the New Citizenship Act earlier this year appears to be tackling the concerns surrounding existing processing times and backlogs in citizenship applications. In introducing the New Citizenship Act, the Government has drastically altered the existing decision-making process in citizenship applications by reducing the number of eyes on applications and shifting the decision-making grant powers away from citizenship judges to the CIC minister and citizenship officers. The Government has also increased the cost of applying for citizenship and ended the processing of incomplete applications, moves targeted to both reflect processing costs and reduce the burden on Canadian taxpayers. III. What Are Some of the Specific Changes that Are Being Made to the Way Citizenship is Granted in Canada? A. Residence and Physical Presence Under s. 5(1)(c) to (e) of the New Citizenship Act, there is a new statutory requirement for applicants to be physically present in Canada for at least four years (1,460 days) during the six years immediately before the date of his or her application. There is a further requirement that the applicant be physically present in Canada for at least 183 days during each of the four calendar years that are fully or partially within the six years immediately before the date of his or her application. To ensure this, 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 to be noted that this provision is not yet in effect as of the date of this paper. Under the old residency provision (which is still in effect), there was only a requirement for an applicant to have been resident in Canada during three years (1,095 days) of the four years prior to the date of the application. The term residence was not defined, and there was no requirement for physical presence. There was no requirement to submit tax returns. The Old Citizenship Act also provided that in addition to the days spent in Canada as a permanent resident, applicants could also receive half-day credit for days spent in Canada prior to permanent residency. Under the Old Citizenship Act, one could apply for citizenship as early as two years after becoming a permanent resident. These changes to the residency provision address the inconsistency as to the meaning of residence found in Federal Court case law where judges varied in applying both a strict physical test for residency and in other cases considered additional evidence of integration and establishment to prove residency. The interpretation of residence was grouped into three categories: 1) the strict physical presence test based on the counting of actual days in Canada set out in Pourghasemi (Re) 4 ; 3 For clarity and simplicity, the Old Citizenship Act means the Citizenship Act prior to the changes introduced by Bill C-24. Amendments that are already in force, provisions that have not changed, and those amendments not in force will be described as New Citizenship Act. Amendments that will no longer exist, even if they are currently in force, will be called the Old Citizenship Act. 4 Pourghasemi (Re), [1993] F.C.J. No. 232.

4 ) the qualitative test set out in Papadogiorgakis (Re) 5 that recognizes a person can be resident in Canada, even while temporarily absent, as long as a strong attachment to Canada is maintained; 3) the Koo 6 test, which defines residence as a place where one regularly, normally or customarily lives, based on whether the applicant has centralized his or her mode of living in Canada through a qualitative assessment of six factors. The Court had held that it was open to a citizenship judge to adopt any of the tests as long as it was properly applied to the facts of the case. 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. The change in disallowing time spent in Canada prior to becoming a permanent resident will impact international businesspersons with Canadian work experience and other individuals who have spent time visiting, working, and studying in Canada prior to obtaining permanent residency. Unlike with permanent residency requirements, time spent abroad is not credited unless the applicant or the applicant s spouse is employed with the Canadian Armed Forces or the Federal public administration or public service of a Province. 7 Therefore, the new physical presence requirement will likely have a particular impact on individuals who are employed on overseas Canadian contracts or work in industries which require them to travel regularly for work such as aircraft pilots or those in international business development. B. 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. This provision did not exist in the Old Citizenship Act. This change will likely imbed itself into a new intent to reside declaration or form. 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. C. Minors, Language Abilities, and Citizenship Test Under the New Citizenship Act, applicants aged must now provide proof of proficiency in English or French and take the citizenship test. 9 Under the Old Citizenship Act 10 children over the age of 14 but under the age of 18 only had to take the oath of citizenship. Only applicants aged Papodogiorgakis (Re), [1978] 2 F.C Koo (Re), [1993] 1 F.C New Citizenship Act at s. 5(1.1). 8 Ibid. at s. 5(1)(c.1). 9 Ibid. at ss. 5(1)(d)(e) and 5(2). 10 Ibid. at s. 3(1)(c).

5 5.3.4 were required to provide proof of language ability and pass the citizenship test. 11 Note that CIC will still require proof of language skills, either from the results of a CIC-approved third-party test (e.g., IELTS), proof of completion of secondary or post-secondary education French or English, or completion of a government-funded language program. D. Fast Track and Bars The New Citizenship Act provides for an expedited process for persons who are serving or have served in the Canadian Armed Forces. Various exceptions to general citizenship rules are also made for descendants of individuals who have served in the Armed Forces. The fast track and these exceptions have been in force since June 19, The New Citizenship Act will also clarify that for members of the Canadian Armed Forces individuals have who completed three years of service in the last six years and filed income taxes in those three years to apply for citizenship. 12 The New Citizenship Act expands the bars on getting citizenship to individuals with foreign criminal charges and convictions. Citizenship is no longer granted to individuals who have been convicted of an offense outside of Canada, which if they were convicted in Canada, would be an indictable offence under any Act of Parliament, regardless of whether pardon or amnesty was granted for the offences. 13 The applicant is barred from applying for citizenship if this act occurred within the four years from the application date or were to occur between the date of application and the date of the oath or granting of citizenship. 14 The New Citizenship Act notably creates s. 22(4) which lists a number of offenses under the Criminal Code, National Defence Act, and Security of Information Act barring individuals who commit acts of terrorism or acts against Canadian interests. These acts do not depend on the act having been committed within four years of the application date. It is to be noted that under s. 22(5), a new ministerial discretion is in place to waive the bar if exceptional circumstances warrant it. The bar due to criminality provisions are not yet in force. Under the Old Citizenship Act, the bar pertained only to applicants who had Canadian criminal charges and convictions which amounted to indictable offenses. The applicant was only barred if the acts occurred within three years of the date of application. E. Administrative Changes The New Citizenship Act also makes a series of what can be called administrative changes. 1. Cost and Fines The cost of applying for citizenship is now $400 for adults and $100 for a child. This fee represents a doubling of fees. This change was motivated by the Government s concerns that the $200 processing fee for adults was only covering 20% of the processing cost Old Citizenship Act at s. 3(1)(c). 12 New Citizenship Act at ss. 5(1.01)(1.02)(1.2)(1.3). 13 New Citizenship Act s. 22(2)(3). 14 Ibid. 15 Ibid. at n. 2.

6 5.3.5 In a move to tackle citizenship fraud, proposed s significantly increase the maximum fines and jail time for fraud and misrepresentation. Any individual who counsels misrepresentation or themselves misrepresents material circumstances on an application can face a fine of up to $100,000 and a term of imprisonment of not more than five years, or both. Prior to the change, the maximum penalties were set at a maximum of $1,000 and/or one year in prison. 2. Consultants Must Now Be Regulated Under s. 21.1(5) of the New Citizenship Act, consultants that represent clients in citizenship applications must now be regulated, in much the same way that consultants are regulated under the Immigration and Refugee Protection Act ( IRPA ). 16 Under the Old Act, consultants who applied for citizenship on behalf of their clients were not regulated. This is widely seen to be a positive change that brings the Citizenship Act in-line with IRPA. 3. Applications Must Be Complete and May Be Deemed Abandoned Section 13 of the New Citizenship Act introduces some procedural changes with respect to processing. Under the New Citizenship Act, applications are only to be processed if they are complete. 17 Under the Old Citizenship Act, there was some discretion for processing incomplete applications. 18 Applications can also be deemed abandoned under s. 13(2), where the Minister requests further information or evidence by a specified date and it is not provided or if the applicant fails to appear for the interview or oath process. These provisions have been in force since August 1, These two changes require immigration representatives to be extremely diligent in ensuring all documentation is complete and all deadlines are met. F. Discretionary Grants Under changes to the New Citizenship Act, the Minister also has the authority to decide on discretionary grants of citizenship either to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada. 19 Under the Old Citizenship Act, this discretion had to be provided by the Government-in Council ( GIC ). G. Decision-Making Processes Under the New Citizenship Act, the citizenship officer is granted greater decision-making power to approve or reject citizenship applications. Under the New Citizenship Act, the citizenship officer now has final-decision capabilities in most circumstances. Section 14 stipulates that applications may be referred to citizenship judges where the Minister is not satisfied that the applicant meets the residency requirement, may be stateless as a result of a refusal, or is applying to resume citizenship. 20 However, the citizenship judge is now subject to the Minister completing relevant 16 S.C. 2001, c New Citizenship Act at s Old Citizenship Act at s Ibid. at s. 5(4). 20 Ibid. at s. 14(1)(a)-(c).

7 5.3.6 proceedings under the IRPA and must now provide written reasons to the minister regarding whether to approve or not approve applications. 21 This provision is already in force. Under the Old Citizenship Act, the citizenship officer would review and then submit the file to the citizenship judge, the citizenship judge would make a decision on the application and then return it to the citizenship officer. The citizenship officer would then grant citizenship or recommend an appeal of the citizenship judge s decision. The New Citizenship Act also continues the Minister s ability to waive, on compassionate grounds, many of the citizenship requirements. Notably it expands the Minister s waiver to take into account the new requirements regarding age and intent. These changes are reflected in s. 5(3) of the New Citizenship Act. H. What Future Changes Are Expected to the Granting Provisions? CIC is currently in the processing of updating the application forms, manuals, and bulletins that will be affected by the New Citizenship Act. The government will also have to create a series of transition provisions for individuals who are submitting their applications between the time the New Citizenship Act was passed and each of the changes comes into force and effect. There is some possibility of further amendments made by the government to their own changes. Most of the discussion has been around clarifying the intent to reside in Canada, interpreting continuous intention, and possibly introducing enumerated, rather than discretionary, exceptions to the strict physical residency rule. There are also likely to be numerous court challenges to the changes to the New Citizenship Act. Specific to grants of citizenship, the intent to reside provision appears to brush up against ss. 6 and 15 of the Charter, mobility rights and equality under law. IV. Conclusion The New Citizenship Act, from a broad perspective, meets all three of the government s intended goals. By providing strict residency requirements and providing discretion to the Minister and CIC to both grant and revoke citizenships, the New Citizenship Act reinforces the value of Canadian citizenship by defining the grant of citizenship as a privilege not a right. By levying greater penalties and regulating consultants, the New Citizenship Act tackles fraud. By increasing fees, reducing the administrative processing costs, and closing the door to those convicted of crimes, the act purports to promote Canadian interests. Yet, there is also a strong argument from critics that believe the New Citizenship Act fails to reinforce the value of citizenship, instead creating a second tier naturalized Canadian citizen through its strict residency and the intent to reside provision. Critics believe that the strictness of the requirements will make a Canada less attractive destination in the eyes of businesspersons and families in deciding where to settle long-term. Critics also believe that the New Citizenship Act violates the Charter by applying different laws to different Canadian citizens and allowing for individuals to lose an important right, at the loose discretion of Minister and individual officers. 21 Ibid. at s. 14.1(2).

8 5.3.7 From a legal practice perspective, the changes to the New Citizenship Act will create more work for lawyers. Many non-regulated consultants will have to cease assisting with citizenship applications. Applicants will have to be diligent in ensuring their applications for citizenship are complete and accurate. Applicants will likely seek legal representation if they will have to apply on discretionary grounds for citizenship, and seek leave to appeal to the Federal Court on the basis of rejected applications.

9 5.3.8 V. Appendix A Table Summary of Changes 22 OLD CITIZENSHIP ACT NEW CITIZENSHIP ACT Residency/Presence Requirements Residence for 3 out of 4 years (1,095 days) No requirement that resident be physically present Time as non-pr may be counted toward residence for citizenship No requirement to file income taxes No intent to reside provision Physical presence for 4 years out of 6 years 183 days minimum of physical presence per year in 4 out of 6 years Eliminates use of time spent in Canada as non-pr Requirement for adults applicants to file income taxes for 4 qualifying years Intent to reside provision Language and Citizenship Test Applicants aged must meet language requirements in either English or French. Applicants aged must write and pass knowledge test. Applicants aged must meet language requirements Applicants aged must write and pass knowledge test Fast Track and Bars No fast-track mechanism for citizenship for applicants serving in the Canadian Armed Forces Bars on getting citizenship for people with domestic criminal charges and convictions. Fast-track process for applicants serving in Canadian Armed Forces (took effect on June 19, 2014) Expands bar on getting citizenship to people with foreign criminal charges and convictions (Minister has discretion to not apply bar in exceptional cases) 22 Information from this chart was adapted from Government of Canada, Backgrounder Strengthening Canadian Citizenship Act: A comparative view, ( )

10 5.3.9 OLD CITIZENSHIP ACT NEW CITIZENSHIP ACT New Decision Making Process Three-step decision making process (citizenship officer reviews, citizenship judge makes decision, the citizenship officer makes recommendation for grant or appeal of judge s decision) Single-step process where citizenship officer makes decision. (Referred to citizenship judge in cases of not meeting residency requirement or resumption of citizenship) (took effect August 1, 2014) Administrative Changes Citizenship fee was $200 for Adults. Maximum fines for fraud and misrepresentation are $1,000 CDN and/or 1 year in prison. Limited authority to define what constitutes a complete application Citizenship fee now $400 for Adults (took effect on February 6, 2014) Maximum fines for fraud and misrepresentation are $100,000 CDN and/or 5 years in prison Authority to define a complete application for acceptance for processing (took effect on August 1, 2014) Application declared abandoned if applicant fails to comply with a request for additional information or to attend an interview (took effect on August 1, 2014) Discretionary Grants GIC final decision maker on discretionary grants of citizenship CIC minister has authority to decide on discretionary grants of citizenship (took effect June 19, 2014)