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Federal Court Remains Divided on Test to Establish Residence in Citizenship Applications

Two recent decisions of the Federal Court highlight the on-going disagreement in the courts regarding the test to prove “residence” in Canada in citizenship applications: Sinanan v. Canada (Minister of Citizenship and Immigration), 2011 FC 1347, in which the Court preferred the strict “physical presence” test, which simply counts the number of days actually spent in the country; and Burch v. Canada (Minister of Citizenship and Immigration), 2011 FC 1389, in which the Court applied a “qualitative assessment”, which considers whether Canada is the country in which the applicant has “centralized his or her mode of existence.”

Under the Citizenship Act, an applicant for Canadian citizenship must be a permanent resident and have, “within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada”.  The Act, however, does not define the term “residence”. Past Federal Court decisions have split in their interpretation of this term, one line of cases adopting a “quantitative” interpretation strictly requiring physical presence in Canada for at least three years, another applying a “qualitative” assessment based on several factors to determine whether Canada is the country in which the applicant has “centralized his or her mode of existence.”

In Sinanan, the Federal Court preferred the physical presence test over the qualitative test, holding that, even if it is open to a citizenship judge to apply the qualitative test given the Court’s conflicting jurisprudence on this issue, there is no obligation on the judge to do so or to provide justification or a rationale for applying the physical presence test rather than the qualitative test.

In Burch, on the other hand, the Federal Court endorsed the line of cases holding that, where a citizenship applicant does not meet the physical presence test, the citizenship judge must proceed to the qualitative assessment and the failure to do so is an error of law requiring the citizenship application to be redetermined by a different citizenship judge.

Thus, the issue remains unclear and at the discretion of the citizenship judge to determine which test to apply, either the “physical presence” or “qualitative assessment” test.

For further information on the Federal Court’s rulings in the above cases or on the requirements and process generally in applying for Canadian citizenship, please contact the immigration law specialists at Green and Spiegel LLP.