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Canadian Citizenship Through Naturalization

Written by Henry J. Chang

The Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") provides in Paragraph 3(1)(c) that a person is a citizen if that person has been granted or acquired citizenship pursuant and, in the case of a person who is fourteen years of age or over on the day that he or she is granted citizenship, he or she has taken the oath of citizenship. This is known as naturalization.

The basic right to naturalization is set out in Subsection 5(1) of the Act. It states that citizenship shall be granted to any person who:

  1. Makes application for citizenship;
  2. Is eighteen years of age or over;
  3. Is a permanent resident within the meaning of Subsection 2(1) of the Immigration and Refugee Protection Act ("IRPA"), 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:

    1. 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
    2. 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;
  4. Has an adequate knowledge of one of the official languages of Canada;
  5. Has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
  6. Is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to Section 20 of the Act.

In addition, according to Subsection 5(1.1) of the Act, any day during which an applicant for citizenship resided with the applicant's spouse or common-law partner who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada.

18 Years of Age or Older at the Time of Filing

In general, the applicant for citizenship must be 18 years or older at the time that he or she files for naturalization. However, Subsection 5(2) of the Act states that the Minister shall grant citizenship to any person who is: (a) a permanent resident within the meaning of Subsection 2(1) of the IRPA and (b) is the minor child of a citizen, if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child. Subsection 4(1) of the Citizenship Regulations, 1993, SOR/93-246 (the "Regulations") permit such an application to be filed by either parent, by a legal or de facto guardian or by any other person having custody of the minor child, whether by virtue of an order of a court of competent jurisdiction, a written agreement or operation of law.

Calculation of Residence

The applicant must have been lawfully admitted as a permanent resident in Canada (i.e. formerly known as a landed immigrant). Most citizenship applicants acquire permanent resident status at the time of their original admission. However, in rare cases, citizenship applicants may acquire permanent resident status after their intial entry (i.e. spouses who obtain permanent residence through inland processing within Canada).

Paragraph 5(1)(c) of the Act states that each day or residence after lawful admission as a permanent resident is counted as one day towards the three-year residence requirement and each day before lawful admission as a permanent resident counts as one half-day. However, the calculation of residence cannot go beyond the four-year period immediately preceding the date of the citizenship application. Therefore, the most credit that an applicant could get for residence prior to lawful admission as a permanent resident would be six months (one year prior to lawful admission, which is counted as six months of residence).

As stated above, the Act also credits the spouse or common-law partners of a Canadian citizen who is accompanying the citizen abroad for certain purposes. According to Subsection 5(1.1) of the Act, any day during which an applicant for citizenship resided with the applicant's spouse or common-law partner who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada.

According to Section 21 of the Act, no period may be counted as a period of residence during which a person has been, pursuant to any enactment in force in Canada,

  1. Under a probation order;
  2. A paroled inmate; or
  3. Confined in or been an inmate of any penitentiary, jail, reformatory or prison.

Where a person has been found not guilty by reason of insanity under Section 16 of the Criminal Code, and the individual has been detained by a Lieutenant Governor's order, the person is considered to have been confined in or been an inmate of any penitentiary, jail, reformatory or prison. Such a period may not be counted as residence under the Act.

A person who is the subject of a conditional discharge in combination with a period of probation may count that period for residence purposes if all the conditions of the order have been satisfied. Similarly, a conviction under Section 259 of the Criminal Code prohibiting a person from driving is not considered a probation order.

Pre-trial custody is the period of time a person is kept in jail until and during trial. This period of time, even if the person is acquitted, is to be counted as probation time when calculating residence.

A community sentence is time served in the community in lieu of jail and is considered jail time. Three months of community sentence time is counted as three months of jail time.

Applicants must meet the residence requirements the day before filing the application for citizenship. Applications that are signed or submitted before they accumulated the minimum amount of time as a permanent resident will be returned to the applicant.

Applicant Must Not Have Ceased to be a Permanent Resident

As stated above, Paragraph 5(1)(c) of the Act incorporates by reference the term "permanent resident" as it is defined in Subsection 2(1) of the IRPA. Subsection 2(1) of the IRPA defines "permanent resident" as a person who has acquired permanent resident status and has not subsequently lost that status under Section 46 of the IRPA. In other words, in order to remain eligible for Canadian citizenship, the person must not lose permanent resident status at any time before being granted citizenship.

According to Subsection 46(1) of the IRPA, a person loses permanent resident status:

  1. When they become a Canadian citizen;
  2. On a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under Section 28 of the IRPA [For more detailed information, please refer to our article on maintenance of permanent residence];
  3. When a removal order made against them comes into force; or
  4. On a final determination under Section 109 of the IRPA to vacate a decision allowing the person's claim for refugee protection [where the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts] or a final determination under Subsection 114(3) of the IRPA to vacate a decision allowing the person's application for protection [where the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts].

Questions have sometimes arisen whether citizenship officers have the authority to determine whether an applicant has lost permanent resident status, even where there has been no previous concern raised by an immigration official. This can arise where it is discovered that the applicant also has permanent residence in another country but immigration has permitted the individual to return to Canada as a permanent resident.

The position of Citizenship and Immigration Canada ("CIC") is that the onus is on the applicant to prove that permanent residence was maintained during periods away from Canada. Where the applicants cannot prove residence in Canada, the matter should be referred to immigration for reexamination and decision. However, the Immigration Manual recommends that Citizenship officers rely upon the decision of their immigration colleagues, in the absence of evidence that the person's reentry into Canada was fraudulent.

Adequate Knowledge of One of the Official Languages

According to Paragraph 5 (1)(d) of the Act, the applicant must have an adequate knowledge of either English or French. A citizenship judge makes the determination if the applicant meets the language criteria. Section 14 of the Regulations states that the criteria for determining whether a person has an adequate knowledge of one of the official languages of Canada are, based on questions prepared by the Minister:

  1. That the person comprehends, in that language, basic spoken statements and questions; and
  2. That the person can convey orally or in writing, in that language, basic information or answers to questions.

Adequate Knowledge of Canada and the Responsibilities and Privileges of Citizenship

According to Section 15 of the Regulations, the criteria for determining whether a person has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship are that, based on questions prepared by the Minister, the person has a general understanding of

  1. The right to vote in federal, provincial and municipal elections and the right to run for elected office;
  2. Enumerating and voting procedures related to elections; and
  3. One of the following topics, to be included at random in the questions prepared by the Minister, namely,

    1. The chief characteristics of Canadian social and cultural history,
    2. The chief characteristics of Canadian political history,
    3. The chief characteristics of Canadian physical and political geography, or
    4. The responsibilities and privileges of citizenship, other than those referred to in paragraphs (a) and (b).

Must Not Be Under a Removal Order or the Subject of a Security Declaration

According to Paragraph 5(1)(f) of the Act, an applicant may not be granted citizenship if he or she is under a deportation order or the subject of a declaration by the Governor in Council made pursuant to Section 20 of the Act. The removal order ground is fairly straightforward. However, the Governor in Council declaration should be explained in further detail.

According to Section 20 of the Act, a person shall not be granted citizenship or administered the oath of citizenship or be issued a certificate of renunciation where the Governor in Council declares that there are reasonable grounds to believe that the person with respect to whom the report was made will engage in an activity:

  1. That constitutes a threat to the security of Canada, or
  2. That is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment.

According to Subsection 20(3), such a declaration ceases to have effect two years after the day on which it was made. However, the Governor in Council is not prohibited from making a further declaration.

Additional Classes of Ineligible Applicants

According to Subsection 22(1) of the Act, a person may not be granted citizenship or permitted to take the oath of citizenship:

  1. While the person is, pursuant to any enactment in force in Canada,
    1. Under a probation order,
    2. A paroled inmate, or
    3. Confined in or is an inmate of any penitentiary, jail, reformatory or prison;

  2. While the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under Subsection 29(2) or (3) of the Act [which includes persons who: (a) for any of the purposes of the Act makes any false representation, commits fraud or knowingly conceals any material circumstances, (b) obtains or uses a citizenship certificate of another person in order to personate that other person, (c) knowingly permits his citizenship certificate to be used by another person to personate himself, or (d) traffics in citizenship certificates or has in his possession any certificate certificate for the purpose of trafficking] or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act;
  3. While the person is under investigation by the Minister of Justice, the Royal Canadian Mounted Police or the Canadian Security Intelligence Service for, or is charged with, on trial for, subject to or a party to an appeal relating to, an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act [which deal with genocide, crimes against humanity, and war crimes committed inside and outside of Canada];
  4. If the person has been convicted of an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act [which deal with genocide, crimes against humanity, and war crimes committed inside and outside of Canada];
  5. If the person has not obtained the authorization to return to Canada required under Subsection 52(1) of the IRPA [which deals with authorization to return to Canada after a removal order has been enforced against that person]; or
  6. If, during the five years immediately preceding the person's application, the person ceased to be a citizen pursuant to Subsection 10(1) of the Act [which deals with retention, renunciation and resumption of citizenship by false representation or fraud or by knowingly concealing material circumstances].

According to Subsection 22(2) of the Act, but subject to the Criminal Records Act, a person shall not be granted citizenship or be permitted to take the oath of citizenship if,

  1. During the three year period immediately preceding the date of the person's application, or
  2. During the period between the date of the person's application and the date that the person would otherwise be granted citizenship or take the oath of citizenship,

the person has been convicted of an offence under Subsection 29(2) or (3) of the Act [which includes persons who: (a) for any of the purposes of the Act makes any false representation, commits fraud or knowingly conceals any material circumstances, (b) obtains or uses a citizenship certificate of another person in order to personate that other person, (c) knowingly permits his citizenship certificate to be used by another person to personate himself, or (d) traffics in citizenship certificates or has in his possession any certificate certificate for the purpose of trafficking] or of an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act.

Waiver Criteria

Under Subsection 5(3) of the Act, the Minister of Immigration may waive on compassionate grounds the following requirements for citizenship:

  1. In the case of any person, the requirements of Paragraph (5)(1)(d) or Paragraph 5(1)(e) of the Act;
  2. In the case of a minor, the requirement respecting age set out in Paragraph 5(1)(b), the requirement respecting length of residence in Canada set out in Paragraph 5(1)(c) or the requirement to take the oath of citizenship; and

Further, pursuant to Subsection 5(4) of Act, the Governor in Council may, in his discretion, direct the Minister of Immigration to grant citizenship to any person, in order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada.


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