Where a person has maintained residence in Canada as a permanent resident for three years in the 4 year period immediately preceding the date of their application, they may be eligible for Canadian citizenship.

Section 5(1)(c) of Canada’s Citizenship Act also provides for the additional requirement that since admission as a permanent resident, such person has not ceased to be a permanent resident pursuant to section 46 of the Immigration and Refugee Protection Act.

What is of concern to many would be applicants is whether this three year residency requires actual physical presence in Canada for 1095 days in the 4 years preceding an application for Canadian Citizenship.

The decision on whether the 3 year requirement is met is rendered by a citizenship judge, who will apply one of three tests developed by Canadian courts to determine residence. These tests differ substantially from one another, causing significant uncertainty for applicants who have not been physically present in Canada for a total of 1095 days during the relevant period.

The first test is known as the “Strict Physical Presence” test and was elaborated by the Federal Court in Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259, 62 F.T.R. 122. It is a strict application of the residency requirement whereby the applicant must demonstrate actual physical presence in Canada for 1095 days during the 4 year period immediately preceding the date of application.

The second test is a more liberal interpretation articulated in Re: Papadogiorgakis [1978] 2 F.C. 208 (TD). Under this test, residency is determined by “[…] the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question.” Physical presence in Canada is not essential provided that the landed immigrant has established and maintained throughout the three year period in question a “pied-à-terre” in Canada and has the clear intention to live in this country. Under this test, an applicant for citizenship has been deemed to meet the residency requirement despite having spent only 79 days in the country during the 4 years prior to applying for citizenship.

The third test outlined in Re Koo [1993] 1 F.C. 286, is a qualitative analysis of the applicant’s ties to Canada and is the one most often followed by citizenship judges. In order to ascertain whether an applicant has centralized his or her mode of existence in Canada, a number of issues are examined by the judge, including:

  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 dependants 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;
  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 temporary employment abroad;
  6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country.

Recent attempts by the Federal Court to reconcile the three tests have remained unsuccessful. At present, case law requires that a citizenship judge should choose between any of the three residency tests in evaluating a candidacy for citizenship. A separate line of jurisprudence requires that the citizenship judge apply the qualitative analysis of RE: Koo in every case where the strict physical presence test is not met. The Federal Court has, however, consistently held that it must appear from the citizenship judge’s written reasons for granting or refusing citizenship, which of the above three residency tests was applied.

Owing to the unpredictable nature of Citizenship applications, it remains to be seen whether Parliament will intervene to settle this diverging interpretation of the residency requirement. Citizenship applicants who have not been physically present in Canada for the full 1095 days during the reference period and wish to bolster their chances of success are well advised to ensure their application identifies some or all of the six factors of analysis in RE: Koo. Failed applicants may re-apply again when their circumstances regarding physical presence are more favourable during a reference period.