Canadian Citizenship Physical Presence and Three Year Requirement
The residence or physical presence requirements for citizenship are important as they enable an applicant to become familiar with Canada and become integrated into Canadian society before making the decision to apply for citizenship. Therefore, a permanent resident who has maintained residence in Canada for three years in the 4 years periods immediately preceding the date of their application, he or she may be eligible for Canadian citizenship.
Canada Citizenship Act’s section 5(1)(c) provides some additional requirements for the permanent residence since admission as a permanent residence, and such person has not ceased to be a permanent resident in accordance to section 46 of Immigration and Refugee protection act.
Many would be applicants are of concern whether three years residency requires actual physical presence in Canada for 1095 days in the 4 years preceding an application for Canadian Citizenship.
Canadian courts have developed three tests to determine the residence of an applicant. These tests substantially differ from one another, and cause significant uncertainty for applicants who have not been physically present in Canada for 1095 days during the relevant period.
Three tests are as follow:
Strict Physical Presence:
This test was elaborated by Federal Court in Re: Pourghasemi (1993), 19 Imm. L.R. (2d) 259, 62 F.T.R. 122. Under this test an applicant must demonstrate actual physical presence in Canada for 095 days during a period of 4 years immediately preceding the date of application.
This test is more liberal one and is articulated in Re: Papadogiorgakis  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, interest and convenience 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-a-terre” in Canada and has a clear intention to live in this country. Under this test, an applicant who has spent only 79 days in the country during the 4 years prior to applying for citizenship is deemed to meet the residency requirement.
This test is most often followed by the Citizenship judge and it is a qualitative analysis of the applicant’s ties to Canada. 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:
- Whether the individual was physically present in Canada for a long period prior to the recent absence which occurred immediately before the submission of the application.
- Where are the applicants immediate family and dependent residents?
- Does the pattern of physical presence of an applicant in Canada indicate a returning home or merely visiting the country;
- What is the extent of the physical absences of an applicant in Canada;
- 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;
- What is the quality of an applicant’s connection with Canada: is it more substantial than that which exists with any other country.
As recent attempts to reconcile the three tests by the Federal Court have remained unsuccessful, at present, case law requires that citizenship judge should choose between any of the three residency tests in evaluating a candidate’s citizenship. Whereas a separate line of jurisprudence requires that citizenship judge should apply the qualitative analysis of RE: Koo in every case where the strict physical presence test is not met. The Federal court has 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. Citizenship applications that have not been physically present in Canada for full 1095 days during the reference period wish to bolster their chances of success are advised to ensure their application identifies some or all 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.