Category Archives: Citizenship

Changes to Language Requirements

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New Language Requirements for Citizenship and PNP Applications

Citizenship and Immigration Canada (“CIC”) has introduced new language requirements for citizenship applications and certain provincial nominee applications.  For citizenship applications, the changes will introduce objective language requirements for most applicantions.  For certain provincial nominee program (“PNP”) applications, the changes will introduce mandatory language testing.

The Citizenship Langugage Requirements  

Applicants for Canadian citizenship are required to demonstrate that they have an adequate knowledge of either English or French.  Currently, this is done through a multiple choice written test known as the Citizenship Exam, which also tests knowledge of Canada and the responsibilities of citizenship.

On April 21, 2012, the Government of Canada introduced regulatory changes that when they take affect will require that citizenship applicants enclose proof that they meet the language requirement with their citizenship application.  Acceptable means of proof will include:

  • A language test result from an authorized testing agency;
  • Evidence of completion of secondary or post-secondary education in English or French; or
  • Evidence of completion and achievement of a certain level in a government-funded language training program.

Applicants submitting test results from an authorized testing agency will have to achieve a minimum standard of Canadian Language Benchmark (“CLB”) 4 in English or Niveaux de comeptence linguistique canadiens (“NCLC”) level 4 in French.  The areas that will be tested are speaking and listening.  For those familiar with the International English Language Testing System (“IELTS”), currently required for many permanent residence applications, this translates into a 4 in each category.

Applicants who provided mandatory language testing results as part of their permanence residence applications can submit those test results with their citizenship application, and will not be required to be re-tested.

The change will affect all adult citizenship applicants between the ages of 18 and 54.

More information about the change, and the other details of the regulatory changes, can be found at the Canada Gazette here: http://www.gazette.gc.ca/rp-pr/p1/2012/2012-04-21/html/reg1-eng.html  

The PNP Langugage Requirements  

On April 11, 2012, CIC announced that most PNP applicants for semi- and low-skilled professions that fall under Naitonal Occupational Classification (“NOC”) Skill Levels C and D  will have to take mandatory language testing of their listening, speaking, reading, and writing.  They will be required to meet a minimum standard across all four of these categories.

Acceptable tests will include the IELTS, the Canadian English Language Proficiency Index Program (“CELPIP-General”), and the Test d’evaluation de francais.  The minimum standard required will be CLB 4.  No other evidence of language profiency will be accepted.

The change will take effect on July 1, 2012.  However, CIC has announced that any temporary foreign worker who arrives in Canada on or before July 1, 2012, and who subsequently gets nominated no later than July 1, 2013, will be exempted from the requirement.  It is important to note that while CIC has allowed this exemption, it is still unknown whether provincial governments will nonetheless start requiring language testing sooner.

It should also be noted that in January, 2012, CIC indicated that intends to introduce language testing across all PNP streams by the end of 2012.

More information about the change, and the other requirements of the program, can be found at the WelcomeBC here: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-04-11.asp  

Wilfred Laurier on Immigration [Updated - Correction]

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The above picture of Wilfred Laurier, a former Prime Minister of Canada and member of the Liberal Party of Canada, is currently making the rounds on the internet accompanied by his famous passage:

In the first place, we should insist that if the immigrant who comes here in good faith becomes a Canadian and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person’s becoming in every facet a Canadian, and nothing but a Canadian… There can be no divided allegiance here. Any man who says he is a Canadian, but something else also, isn’t a Canadian at all. We have room for but one flag, the Canadian flag… And we have room for but one sole loyalty and that is a loyalty to the Canadian people.

People that are spreading this and citing this passage about undivided loyalty with fervour are I’m sure thinking of immigrants from certain countries with value systems very different to ours.  However, I wonder if they have actually considered the policy implication of the above passage – which is obviously whether Canada should ban its citizens from being dual (or triple) citizens?

What do you think?  Should Brett Hull, Kaya Jones, John Aimers, Peter Jennings, Megan Follows, Brian Burke, Jim Carrey, etc. have to choose?

And, if you believe in what Mr. Laurier said, do we not have room in Canada for the above individuals?

[UPDATE]

As was recently pointed out to me, in attributing the above quote and picture to Wilfred Laurier I fell for a popular myth circulating in certain circles.

Mr. Laurier did not say the above.  It was Theodore Roosevelt.

http://www.snopes.com/politics/quotes/troosevelt.asp

CIC Bans People from Wearing the Veil During Citizenship Oaths

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Citizenship and Immigration Canada has released Operational Bulletin 359 - Requirements for candidates to be seen taking the Oath of Citizenship at a ceremony and procedures for candidates with full or partial face coverings.

The OB has received much media publicity.  Pursuant to it, all citizenship candidates will be informed that they will be required to remove their face coverings for the oath taking portion of the citizenship ceremony, and that their failure to do so will result in the candidate not becoming a Canadian citizen on that day.

If a candidate is not seen taking the oath by a presiding official, the clerk of the ceremony must be notified immediately following the oath taking portion.  The person will not become a citizen that day.  A minor child whose parents do are not seen taking the oath will also not become a citizen that day.

A person who is not seen taking the oath will have a second chance to attend a future citizenship ceremony and take the oath.  If they do not, then their application for citizenship will be refused.  The opportunity to return to take the oath at another citizenship ceremony applies only once.

As the following tweet by Jason Kenney indicates, this policy is meant to prohibit veils, hajibs, niqabs, etc. from being worn during the oath:

kenneyjason Jason Kenney

Thanks to MP Wladyslaw Lizon for raising w/ me the aberrant practice of veiled people taking oath.He saw 4 people doing so @ recent ceremony

However, the way this OB is worded, I shudder to think of what will happen if a CIC officer has to rub some dust out of his eyes during the Citizenship Oath.

Proposed Citizenship Language Requirements

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On October 15, 2011, the Canadian government published a notice in the Gazette proposing amendments to the language requirements to obtaining Canadian citizenship.

The Citizenship Act requires that applicants for an adult grant of Canadian citizenship demonstrate that they have an “adequate knowledge” of either English or French.

Currently, language requirements are largely assessed through a multiple choice written exam also known as the Citizenship Test.  If an applicant fails the written test, or if concerns about an applicant’s speaking or listening ability are flagged following oral interactions with a citizenship official, the applicant is referred to an interview with a citizenship judge.

Under the proposed amendments, applicants would have to demonstrate that they had achieved at least Canadian Language Benchmark (CLB) Level 4 when they apply for citizenship.  The purpose is not to increase the language level required for citizenship but would provide citizenship officials and judges with objective evidence regarding an applicant’s language ability.

 

When a Law Contradicts Itself

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Flickr photo by sweetenough

As much as we know that the people who write our laws are perfect, they can sometimes write things that seem contradictory.

For example, s. 5(4) of the Citizenship Act states that:

Special cases

(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction.

In other words, notwithstanding anything else in the Citizenship Act, an individual may be granted citizenship in order to alleviate cases of hardship or to reward services of exceptional value to Canada.

However, s. 22(1) of the same Act states that:

22. (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship

(a) while the person is, pursuant to any enactment in force in Canada,

(i) under a probation order,

(ii) a paroled inmate, or

(iii) confined in or is an inmate of any penitentiary, jail, reformatory or prison;

In other words, notwithstanding anything else in the Citizenship Act, an individual may not be granted citizenship if they are under a probation order, are a paroled inmate, or are in prison.

How does one reconcile these two sections of Canada’s Citizenship Act, and what should one do if one finds other contradictions?

In Frankowski v. Canada (Minister of Citizenship and Immigration), [2000] 187 FTR 92, recently affirmed in Al-Darawish v. Canada (Citizenship and Immigration), the Federal Court noted that when two provisions in an act are in conflict with each other, the specific provision should be applied to the exclusion of the more general one.

Here, there is a specific provision on who cannot be given citizenship, no matter what. This is narrower and more specific than a provision which says that humanitarian & compassionate considerations can be used to grant citizenship no matter what, and, while the contradiction remains, the narrower section prevails.

1,800 People Poised to Lose Citizenship [Updated]

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Between 1977 and 2010 only 63 people had their citizenship revoked.  In 2011/12, that number could be as many as 1,800.

Jason Kenney, the Minister of Citizenship and Immigration, has confirmed that as many as 1,800 new Canadians could be stripped of their citizenship because they were obtained fraudulently. The 1,800 were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada.

Authority in Law

Many people may be surprised to learn that the Canadian government can strip people of their citizenship.  The authority to do so is provided by s. 10 of the Citizenship Act, which states that:

Order in cases of fraud

10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,

(a) the person ceases to be a citizen, or

(b) the renunciation of citizenship by the person shall be deemed to have had no effect,

as of such date as may be fixed by order of the Governor in Council with respect thereto.

And, for those that think that they can misrepresent their way to permanent residency, tell the truth when applying for citizenship, gain citizenship, and then be safe, s. 10(2) of the Act states that:

Presumption

(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.

The burden of proof on the Federal Government in such cases is a “high degree of probability.”

The standard for misrepresentation for acquiring citizenship is similar to that of misrepresentation for permanent residency.  The government does not have to show that had an individual been truthful during the immigration process then his/her application would have been rejected.  As the Supreme Court of Canada noted in Brooks, 1974 S.C.R. 850, it only has to show that an individual gained entry to Canada by knowingly concealing material circumstances which had the affect of foreclosing further inquiry.

A misrepresentation of a material fact includes an untruth, the withholding of material information, or a misleading answer.  In assessing the materiality of the information concealed, regard must be held to the significance of the undisclosed information.  Unlike with misrepresentations in acquiring permanent residency, however, more must be established than a technical transgression of Canada’s immigration laws, and innocent misrepresentations will not result in the revocation of citizenship.  Willful blindness, however, will not be condoned (Phan, 2003 FC 1194).

The Role of Federal Court

Section 18 of the Act provides that certain procedures must be followed before an individual is stripped of their citizenship.  It states:

Notice to person in respect of revocation

18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and

(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or

(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.

Nature of notice

(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.

Decision final

(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

The role of the Court in a s. 18 proceeding is not to determine whether an individual’s citizenship should be revoked.  Rather, as the Federal Court noted in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, it is to engage in an investigative proceeding to collect evidence of facts surrounding the acquisition of citizenship, so as to determine whether it was obtained by fraudulent means.  For example, in Canada (Citizenship and Immigration) v. Rogan, the first citizenship revocation case involving post World War II war crimes, the court had to determine whether Mr. Rogan had either engaged in or was complicit in war crimes, and, if so, whether or not he misrepresented this information when he immigrated to Canada.


The Conservative Party of Canada and Stripping People of Citizenship

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The governing Conservative Party of Canada is having their convention from June 9-11.  One of the measures that the party will be debating is whether to adopt as official party a policy that would strip people of their citizenship if they take up arms against the Canadian Armed Forces or its allies.

The proposal reads:

98. Canadian Citizenship and High Treason
The Conservative Party of Canada believes that any Canadian citizen, whether by birth or by naturalized grant of Canadian citizenship or by claim of landed immigrant or refugee status in Canada who commits treason by taking up arms against the Canadian Forces or the Forces of Canada’s Allies automatically invalidates his or her Canadian citizenship or claim to Canadian citizenship and, if and when returned to the jurisdiction of the Canadian Legal System, should be tried for high treason under the Canadian Criminal Code.

This is an interesting proposal, and before vigorously supporting or opposing it one should consider the following questions and issues that inevitably emerge from adopting such a policy:

  1. Do you think that a person who fights against the Canadian military should lose their citizenship?
  2. If yes, then do you think that that should extend to anyone who fights against the military of an ally?
  3. What do you consider to be an ally?  Is any NATO country an ally?  Turkey?  India?
  4. What are arms?  Is a knife or rock an arm?
  5. If you generally support the notion, then what about a Palestinian-Canadian who throws a rock at an Israeli soldier?  Should that person lose his/her citizenship?
  6. What if the incident doesn’t occur on foreign soil, but on Canadian?  What if there is an Oka like situation whereby an aboriginal youth throws a rock at a Canadian soldier?  Should that person be stripped of his/her citizenship?
  7. If you don’t support the notion, then do you think that there should be any penalty for a Canadian citizen taking up arms against a Canadian soldier?
  8. If you do support the notion, then should that person retain permanent residence status?  Or should they be inadmissible to enter Canada?
  9. What should the process be?

I haven’t considered any of these questions in too much detail, and I’m sure that your e-mails and comments will provide insights that I haven’t yet thought of, so what do you think?  Should Canada strip the citizenship of people who take up arms against either Canadian soldiers or our allies?

 

The Residency Test for Citizenship

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There is currently a lot of confusion out there amongst permanent residents regarding what the residency test for citizenship is.  Bill C-37 provides that someone must be physically present in Canada for three out of the four years before applying for citizenship. However, this Bill is not yet in force.  Indeed, it has not even passed the House of Commons, having only received first reading.

The current test for determining whether someone as met the residence requirement is found in section 5 of the Citizenship Act, which reads:

5. (1) The Minister shall grant citizenship to any person who

…

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner:

(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and

(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;

…

There is currently great uncertainty in Canadian immigration law over what it means to be “resident” in Canada.  There are currently three schools of thought.

The first school of thought defines residency narrowly.   In Pourghasemi (Re) (1993), 62 F.T.R. 122, Justice Muldoon stated that physical residency was required to meet the residency test.  In doing so, he stated that that the purpose of the residency requirement under the Act was to make sure that applicants:

…at least has been compulsorily presented with everyday opportunity to become “Canadianized”. This happens by “rubbing elbows” with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples – in a word wherever one can meet and converse with Canadians – during the prescribed three years.

This school of thought has become known as the Pourghasemi line of cases.

The second line of cases is less stringent, and is known as the Papadogiorgakis test.  In Papadogiorgakis, then Associate Chief Justice Thurlow drew upon the principles of determining residency for income tax purposes to find that an individual who had only been in Canada for 79 days (far short of 1095) met the residency requirements. His reasoning was that:

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises.

The third test is even more flexible, and allows for greater absence from Canada.  Known as the Koo test, this line of jurisprudence is the most commonly used.  In Koo, Madam Justice Reed held that residency is where an individual “regularly, normally, or customarily lives.” Relevant factors include analyzing:

(1)   was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

(2)   where are the applicant’s immediate family and dependents (and extended family) resident?

(3)   does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

(4)   what is the extent of the physical absences — if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?

(5)   is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?

(6)   what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

Surprisingly, neither Parliament nor the Federal Court of Appeal have ever addressed the issue of determining residency.  In the absence of guidance, the Federal Court has generally, and reluctantly,  held that any of the above three tests could be used by a Citizenship Judge as precedent. In Lam v. Canada (Minister of Citizenship and Immigration), for example, the Court held that a Citizenship Judge could adopt and apply either test.  The Court declared that a decision would stand as long as one of the tests was properly applied.

While some judges have disagreed with this proposition that there could be multiple interpretations of a statute (such as in Canada v. Takla),  the reality is that different judges have been adopting different tests, resulting in great uncertainty.

In Cardin v. Canada, 2011 FC 29, the Court tried to add some certainty to the matter by stating that a citizenship judge should take an applicant’s circumstances into account when determining which test to apply.  This, unfortunately, only seems to add to the uncertainty, and it is impossible to advise clients as to which test will be used.

This is of course problematic, and perhaps the best summation of the current state of affairs in determining residency for citizenship requirements is found of the last paragraph of the Cardin decision, where Madam Justice MacTavish stated that:

I would leave this matter by simply echoing the observations that have repeatedly been made by judges of this Court.  The law in this area is in a very unsatisfactory state. As Justice Dawson observed, it is fundamentally unfair that two persons may apply for citizenship on identical facts and yet obtain opposite results, depending on which test is applied: see Lin v Canada (Minister of Citizenship & Immigration), [2002] F.C.J. No. 492, 2002 FCT 346 (Fed. T.D.).  It is an area that cries out for legislative reform.