201501.14
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New Canadian Citizenship Act – What’s Your Intent?

As promised, we will discuss in greater detail one of the biggest problems that the section of the new Citizenship Act, which is not yet in force, will present to applicants for Canadian citizenship. The problems are to be found in S. 3 (C) (c.1) of the new Act, which reads:

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has, subject to the regulations, no unfulfilled conditions under that Act relating to his or her status as a permanent resident and has, since becoming a permanent resident,

………………

(c.1) intends, if granted citizenship,

(i) to continue to reside in Canada,

(ii) to enter into, or continue in, employment outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person, or

(iii) to reside with his or her spouse or common-law partner or parent, who is a Canadian citizen or permanent resident and is employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person;

The problem is that the Act compels the applicant, at the time of his/her applying for citizenship, to state that he/she has the intent to “continue to reside in Canada” or to continue to meet the other two requirements.

While the applicant may have every intent to do so at the time that he/she submits the application for Canadian citizenship, he/she may subsequently be required to leave Canada, due to circumstances beyond his/her control. Furthermore, what happens if the processing of the application takes several months, or maybe even a year or more, and during that time, an Officer at the Border stops the applicant because he/she has been outside Canada for an extended period of time? Or, what about the situation where once the person is granted citizenship he/she leaves Canada, let us say, for reasons of a lucrative overseas employment opportunity or to study or for whatever otherwise valid reason which could not have been foreseen at the time the application for citizenship was submitted but where a prolonged absence from Canada is required? What happens if that person approaches a Canadian consulate abroad to, let us say, apply to renew his/her Canadian passport and the authorities realize that a year or more after he/she became a citizen moved away from Canada? What happens in such a situation? How long is this “intent” supposed to last, anyway?

Our guess, despite the assurances otherwise from the Minister, is that in all such and many more similar cases, the Minister will at the minimum investigate the “intent” and possibly move to try to revoke person’s citizenship because the Minister will argue that that person in fact made a misrepresentation when he/she applied for citizenship and that he/she in fact did not intend to continue to reside in Canada at the time the application for Canadian citizenship was submitted.

Therefore, the Minister will argue that the applicant had made a “false representation” as described in S. 10 of the new Act.

The said section reads:

Revocation by Minister  — fraud, false representation, etc.

  1. (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Based on the historical pattern of actions of the Minister in the past several years, we have every reason to suspect that this section will be used extensively, and that the definition of what constitutes a “false representation” will be stretched to the limit.

We are getting ready for this; we hope that those applying for citizenship are as well. Since the Act is not retroactive, there is a limited window of opportunity for remedy for those who are eligible, by applying for Canadian citizenship as soon as possible, before these sections come into force.

Historically, the movement of Canadian citizens has never been hampered by Immigration controls. The new Citizenship Act, however, seems to have done away with that philosophy, and will, seemingly, create two classes of citizens: those who acquire citizenship by virtue of birth, who will be privileged, and those who acquire citizenship through naturalization, who will be subject to Immigration controls.