Canadian Immigration & Citizenship Lawyer
Canadian citizenship is obtained automatically by being born in Canada, or by descent where a parent is a first-generation Canadian citizen. In the case of permanent residents, citizenship may be applied for after living in Canada for a specified residency period. Canadian citizenship carries certain privileges that are not enjoyed by permanent residents, such as the right to vote in elections, and the ability to obtain a Canadian passport.
Permanent residents of Canada may apply for Canadian citizenship after residing in Canada for a minimum legally-specified period of time. This manner of obtaining citizenship is referred to as “naturalization”. The children of naturalized Canadian citizens will also automatically obtain citizenship even if they are born abroad. Canada allows dual citizenship, so those permanent residents who obtain Canadian citizenship can also keep their original citizenship, provided that the laws of the other country also allow dual citizenship.
Applying for Citizenship – the Residency Requirement
Permanent residents of Canada who wish to apply for Canadian citizenship must first meet a residency requirement. As of June 19, 2014, the Citizenship Act has been amended to require that a permanent resident be physically present in Canada for at least four years in the six-year period before they apply. In addition, the permanent resident must have been physically present in Canada for at least six months in each of four years within the six year period. Also, the permanent resident must have filed an income tax return in Canada for at least four years within the six-year period. Further, the permanent resident must prove an intention to reside in Canada. This means that the permanent resident should not leave the country while the citizenship application is processing. These rules came into force in June 2015.
Ability to Comprehend the English or French language
In order to qualify for Canadian citizenship, permanent residents must also show that they have an adequate understanding of either the English or French language, which are the official languages of Canada. The new rules pronounced on June 19, 2014 require that a permanent resident applying for citizenship who is under the age of 65 or over the age of 13 must show an adequate knowledge of one of the official languages of Canada.
Proof of language ability is provided through the inclusion of a language test score in the citizenship application. The tests accepted by the citizenship authorities are the IELTS and CELPIP for the English language, and the TEF for the French language. The scores must show language ability at or above benchmark 4 of the Canadian Language Benchmarks for speaking and listening. Alternatively, the applicant can provide proof of the completion of a post-secondary educational program that was taught in the English or French language, or can provide proof of English or French as a Second Language training in Canada, indicating that the benchmark 4 ability was achieved.
Knowledge of Canada Test
Those who have filed a citizenship application will be required to attend and pass a knowledge of Canada test. Under the new rules put into force in June 2014, a permanent resident applying for citizenship who is under the age of 65 or over the age of 13 must show an adequate knowledge of Canada
The knowledge test is based on the information in a government booklet called Discover Canada: The Rights and Responsibilities of Citizenship. This booklet will be provided to each citizenship applicant in advance of the test. It contains brief introductory information about the history of Canada and its social and political structure. The test will be administered in writing and has 20 multiple-choice questions. The pass mark is 15 correct answers. If the applicant fails the test, he or she will be given an opportunity to re-write it. If the applicant fails again, they will be given an interview with a citizenship officer who will conduct the test once more orally.
Those who have satisfied the citizenship authorities that they meet the residency requirement and have passed the language and knowledge tests will be scheduled for a citizenship ceremony where they will be granted Canadian citizenship. As part of the ceremony the applicant will be required to swear an oath of loyalty to Canada. The new citizen will then be given a card proving their citizenship status. This card can then be used to apply for a Canadian passport.
In some cases the citizenship authorities may not be satisfied that the applicant has met the residency requirement to qualify for citizenship. In such instances they will issue a Residency Questionnaire to the applicant requiring them to provide additional information and documentation to establish that they have been in Canada for the required period. The documentary requirements of a Residency Questionnaire can be quite daunting and onerous, and it is to be expected that the processing of the Questionnaire will result in a significant delay in the processing of the citizenship application.
Interviews with Citizenship Judges
In instances where a Residency Questionnaire has been issued but after considering the additional information the citizenship authorities are still uncertain as to whether the applicant is meeting the residency requirement, they will then convoke the applicant for an interview with either a Citizenship Officer or a Citizenship Judge. The officer or judge will interview the applicant about any concerns related to his or her absences from Canada and the documentation used as evidence, and based on this will make a final decision as to whether citizenship should be granted.
Persons whose citizenship applications were rejected have the option of appealing the decision to the Federal Court within 30 days. The appeal proceeds as an Application for Leave and Judicial Review. As such it is not a full appeal in that no new evidence can be provided nor is there any testimony from witnesses. The court will review the citizenship official’s decision in light of the evidence on file and will decide if the decision was made legally, i.e., was it reasonable, fair, within jurisdiction, and otherwise in accordance with the law. If the court finds that the decision was made in legal error, then it will send the case back to the citizenship authorities with an order for them to re-decide it in accordance with the law.
Recent legislation to amend the Citizenship Act (which came into force on May 28, 2015) has led to changes in the process by which the Minister of Citizenship and Immigration can revoke an individual’s Canadian citizenship. As under the previous version of the Citizenship Act, a person’s citizenship may be revoked if the person obtains citizenship by false representation, fraud, or knowingly concealing material circumstances. In addition, new rules now prescribe that citizenship may also be revoked if a person (holding dual citizenship) was convicted of terrorism, high treason, treason, spying offences, or serving with the armed forces of a country or group that Canada is at war with.
Under the newly amended Citizenship Act, the process to revoke citizenship no longer requires a decision from the Governor in Council. The decision, in the vast majority of cases, will be made by the Minister alone.
The new, abbreviated process will apply to those who obtained their citizenship by fraud, false representation, or knowingly concealing material circumstances. Before a person’s citizenship is revoked, they will be provided with notification of their right to make a written response, the time within which they may make their representations, and the evidence on which the Minister is relying. While the new revocation process is meant to be an expedited model, there is still an opportunity for a hearing. It may be held by the Minister if there is evidence that raises a serious issue of the person’s credibility, or the person is unable to provide written submissions, or if the grounds for revocation are related to an offence committed under section 2 of the Criminal Code, which deals with matters of terrorism and espionage. The final decision in these cases will be made by the Minister. If the Minister decides to revoke a person’s citizenship, that person will revert to permanent resident status if the fraud or misrepresentation was related to their citizenship application only. If the fraud or misrepresentation was related to their permanent residence application, the person will lose all status in Canada, even if this will render them stateless.
The same process will apply to those who have been convicted of terrorism, treason, espionage and similar offences. However, only persons who hold dual citizenship with another country may lose their Canadian citizenship in this manner. In this regard, the United Nations Convention on the Reduction of Statelessness, to which Canada is a signatory, prevents the revocation of citizenship if it will render a person stateless in most circumstances. However, the protection of the Convention does not extend to those who obtained citizenship by fraud or misrepresentation.
An appeal may be made to the Federal Court of any decision of the Minister to revoke Canadian citizenship under the procedure described above.
For more complex cases where the fraud or misrepresentation relates to certain serious crimes, including organized criminality, war crimes or crimes against humanity, terrorism, espionage and other national security matters, the process will be more complicated, requiring the Minister to bring an action in the Federal Court seeking a declaration that the criminal acts alleged did in fact occur. If the Court so declares then the person’s citizenship will be revoked. The same process will apply to those citizens who are alleged to have been members of a foreign military or group at war with Canada.
Appeals of decisions of the Federal Court that a person has lost Canadian citizenship will require that the Court first certify a question of general importance for consideration by the Federal Court of Appeal.
While a person is under revocation proceedings they are entitled to all rights and privileges of Canadian citizenship until the citizenship is revoked. If a person’s citizenship is revoked for reasons of fraud they must wait 10 years from the date of revocation before they can apply for citizenship. If a person’s citizenship is revoked for reasons related to terrorism or espionage, etc., they are classified as a foreign national and will be permanently ineligible to apply for citizenship again. If a person attempts to renounce their citizenship prior to, or during, the revocation process, that application will be suspended until the revocation proceedings are complete.
Note: Any revocation proceedings pending under the old procedure (except those relating to terrorism or organized crime) must be disposed of in accordance with that legislation.
The Law Office of Matthew Jeffery, Immigration Lawyer, is experienced with citizenship revocation matters. For further information, please contact us to schedule a consultation.
The Law Office of Matthew Jeffery, Barrister and Solicitor, has years of experience assisting clients with all types of citizenship matters. If you need help with your citizenship case, please contact us for further information.
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