Did you know you can apply for citizenship with less than 1095 days physical presence?2014-06-11
As a permanent resident, the general rule to apply for Canadian citizenship is to have 1,095 days of physical presence in Canada in the previous 4 years.
If you meet that test, great.
But what if you were out of the country for a few days per month? What if you have to be out of the country a few days per month (like one of my clients who has business in the USA)? Can you apply with anything less than 1,095 days?
Yes you can.
To say that the law on physical presence is currently in a state of confusion would be an understatement. There are several cases at the Federal Court that all say different things.
However, citizenship judges will generally look at your ties to Canada if you have less than 1,095 days. So let’s look at the factors the citizenship judge will consider, so you can draft your submission accordingly. Note that generally, only temporary and relatively short absences will be considered as exceptions – lengthy absences and living away from Canada will not fall within the factors below.
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
This means that you lived here for close to 3 years, left for a period of time (a few months perhaps) but then returned and live here permanently.
2. Where are the applicant’s immediate family and dependents (and extended family) resident?
Let’s say you have regular business trips outside of Canada. But most or all of your family live here. It shows you have real ties to Canada, so those days away may count as physically residing here.
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
If you leave Canada regularly but stay in hotels, it looks like you are returning home each time, so those days away can count as presence here. However, if you own a residence elsewhere and leave the country to live there, it may appear as you are visiting Canada and living elsewhere, so those days may not count as presence here.
4. What is the extent of the physical absences – if an applicant is only a few days short of the 1,095 total it is easier to find deemed residence than if those absences are extensive.
Pretty straightforward – the fewer absences the better under this exception to the physical presence rule.
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?
This the exception that most applicants use. You live here and your employer compels you take an assignment abroad. If you are going to try this approach, you better have lots of evidence, including an employment contract and a detailed letter from your employer explaining why you were required to work out of the country and what you were doing.
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
If you want to use this exception, show all your links to Canada: job, property, involvement in the community, contacts, social organizations – whatever you can. Also if you pay tax here and no other place, make a point of that too.
You should note that one line of case law says citizenship judges must look at the factors above if you have less than 1,095 days. Another line of case law says they can rely on strict physical presence in Canada. So you are taking your chances applying with fewer days.
But most citizenship judges will apply the above factors, and if you run into one who sticks with physical presence, you can always apply again once you have 1,095 days.
Always a good idea to speak with a lawyer before applying.
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