A person who has remained in Canada as a permanent resident for three years less than four years before the date of the application may be eligible for Canadian citizenship.
The decision on whether to meet the three-year requirement is determined by a citizenship judge who will apply different tests to determine the place of residence. These tests differ considerably from one another, which can pose problems for candidates who have not been physically present in Canada for three years.
Canadian citizenship tests
The first test is known as a “strict physical presence” test. This is an astringent residence requirement whereby the applicant must prove physical presence in the country for three years in the four years immediately preceding the application.
For the second test, the residence is determined by the degree of the settlement of a person in Canada because of “social relationships, interests, and amenities at the place or place in question.” Physical presence in Canada is not essential, provided that the immigrant has established and maintained a pied-à-terre in Canada during the three years in question and has demonstrated the intention to live in Canada. As a result of this test, an applicant is eligible to meet the residency requirement, even though they only spent 79 days in the country during the 4-year period preceding the application for citizenship.
The third test is a qualitative analysis of the applicant’s relationship with Canada. To determine whether an applicant has established in Canada or has demonstrated intent, the court assesses various factors, including:
Was the person physically present in Canada for a long time before applying for citizenship?
Where are the immediate family and the applicant’s family members?
Do travelling habits demonstrate a person travelling or interested in living in Canada?
What is the degree of physical absence?
Is their physical absence from Canada caused by a temporary situation such as a job, attending a university, accepting to travel abroad or accompanying a spouse who has taken a temporary job elsewhere?
Recent attempts by the Federal Court to moderate the three tests have been unsuccessful. Currently, case law requires a citizenship judge to choose one of the three criteria when assessing an application for citizenship.
However, the law also dictates the application of the qualitative analysis test if the conditions required for the physical presence test are not met. The Federal Court has always held that the citizenship court documented which of the three criteria had been applied.
It is not certain that Parliament intervenes to complete this confusing interpretation of the residency requirement. Candidates who are not physically present in Canada for three years and wish to increase their chances of success are encouraged to ensure that their application identifies all or some of the factors in the third test of analysis.
Unsuccessful applicants may re-apply if their physical presence conditions are more favourable during the three-year reference period.
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