Confusion exists regarding what the residency test for citizenship is. Bill C-37 provides that someone must be physically present in Canada for three out of the four years before applying for citizenship. However, this Bill is not yet in force. The Koo test therefore still applies.
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Section 133(2) of the Immigration and Refugee Protection Regulations (the “Regulations”) provides that:
A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes [an application to sponsor a member of the Family Class] and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.
I have dealt with this issue on numerous occasions, and, depending on the visa post, Citizenship and Immigration Canada (“CIC“) may scrutinize in some detail the sponsor’s intention to actually reside in Canada with their spouse, or to simply get the principal applicant permanent resident status without actually immigrating to Canada.
The Embassy of Canada in the United Arab Emirates asks applicants to complete a Residency Questionnaire for their sponsors if they reside outside of Canada, and I have reproduced the questions below. These questions can serve as a useful guide to anyone submitting a family class application where s. 133(2) of the Regulations applies.
- Is your sponsor currently a Canadian citizen or a Permanent Resident?
- Is your sponsor currently in Canada?
- If yes, then how long has the sponsor been physically residing in Canada?
- If yes, then when did you last see your sponsor?
- If no, then how long has the sponsor been living outside of Canada?
- If your sponsor is not living in Canada, then please explain why and when he/she intends to return to reside in Canada once your visa is issued. Please provide as many details as possible.
- What preparations have you and/or your sponsor made for your move to Canada? Please provide documentary proof if possible.
- If you have school aged children, have you made enquiries with the local school board? If yes, which school? If no, why not?
- Has the school, where your school-aged child(ren) is currently attending issued a transfer certificate?
- Will you and your spouse be both moving to Canada and reside together permanently?
- Will you, the principal applicant, cancel the Gulf residence visa? Why or why not?
- Does your sponsor own any of the following assets in Canada? Bank account, apartment, house, business, other..
- Has your sponsor filed the most recent annual tax filing with the Canada Revenue Agency as a factual resident of Canada?
- Is your sponsor currently employed in a permanent full-time position in Canada? Please provide details if yes.
The final two questions retain to changes in circumstance post-submitting the application, and I have not reproduced them here because my hope is that by providing answers and context to the eleven questions above, you will avoid delays in processing by having status update requests.
On December 23, 2010, CIC released Operational Bulletin 256, detailing consequences for failure to comply with Quebec Entrepreneur residency requirements.
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