The Federal Court has begun ending its citizenship decisions with a request that the Citizenship Commission make a reference to the Federal Court of Appeal as to what the proper test for residency is in citizenship applications.

In Adekunle Olufemi Dina v. Citizenship and Immigration Canada, 2013 FC 712, Justice Hughes held that it was a breach of procedural fairness for a Citizenship Judge to note provide adequate notice to an applicant as to which test the Citizenship Judge would use, and then noted that:

The messy state of the jurisprudence is largely a result of inconsistent and contradictory jurisprudence in the Federal Court for which this Court must bear the blame. No appeal from decisions such as this one is possible, however if the Citizenship Commission were to refer a question to this Court under section 18.3(1) of the Federal Courts Act, any decision of this Court could be appealed to the Federal Court of Appeal.

Therefore, I will return the matter for redetermination by the same judge. That judge is to give adequate notice to the Applicant as to which test will be applied. That judge is strongly urged to consider a section 18.3(1) reference.


The Statute

The current test for determining whether someone as met the residence requirement is found in section 5 of the Citizenship Act, which states:

5. (1) The Minister shall grant citizenship to any person who

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, 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:

(i) 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

(ii) 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;

The Three Tests of Residency

There are currently three residency tests for citizenship based on the above statute, all of which are legitimate.

The first defines residency narrowly.   In Pourghasemi, Justice Muldoon stated that physical residency was required to meet the residency test.  In doing so, he stated that that the purpose of the residency requirement under the Act was to make sure that applicants:

…at least has been compulsorily presented with everyday opportunity to become “Canadianized”. This happens by “rubbing elbows” with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples – in a word wherever one can meet and converse with Canadians – during the prescribed three years.

The second line of cases is less stringent, and is known as the Papadogiorgakis test.  In Papadogiorgakis, then Associate Chief Justice Thurlow drew upon the principles of determining residency for income tax purposes to find that an individual who had only been in Canada for 79 days (far short of 1095) met the residency requirements. His reasoning was that:

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhanced if he returns there frequently when the opportunity to do so arises.

The third test is even more flexible, and allows for greater absence from Canada.  Known as the Koo test, this line of jurisprudence is the most commonly used.  In Koo, Madam Justice Reed held that residency is where an individual “regularly, normally, or customarily lives.” Relevant factors include analyzing:

(1)   was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

(2)   where are the applicant’s immediate family and dependents (and extended family) resident?

(3)   does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

(4)   what is the extent of the physical absences — if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?

(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 employment abroad?

(6)   what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

The Current Debate

Surprisingly, neither Parliament nor the Federal Court of Appeal have ever addressed the issue of determining residency.  In the absence of guidance, the Federal Court has generally, and reluctantly,  held that any of the above three tests could be used by a Citizenship Judge as precedent. In Lam v. Canada (Minister of Citizenship and Immigration), for example, the Court held that a Citizenship Judge could adopt and apply either test.  The Court declared that a decision would stand as long as one of the tests was properly applied.

While some judges have disagreed with this proposition that there canbe multiple interpretations of a statute (such as in Canada v. Takla),  more the most part different judges have been adopting different tests, resulting in great uncertainty for applicants.

In Cardin v. Canada, 2011 FC 29, the Court tried to add some certainty to the matter by stating that a citizenship judge should take an applicant’s circumstances into account when determining which test to apply.  This, unfortunately, only seems to add to the uncertainty, and it is impossible to advise clients as to which test will be used.

This is of course problematic.  In 2013, Chief Justice Crampton stated in Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576, that:

The optimal resolution of this state of affairs would be for Parliament to legislate a clearer test for citizenship under theCitizenship Act, RSC 1985 c C-29. The Court has noted this on several occasions (see, for example, Harry (Re) [1998] FCJ No 189, at paras 15-26; Imran v Canada (Minister of Citizenship and Immigration), 2012 FC 756, at para 32 [Imran]; Hao v Canada (Minister of Citizenship and Immigration), 2011 FC 46, at para 50[Hao]; and Ghaedi v Canada (Minister of Citizenship and Immigration), 2011 FC 85, at para 16). Another potential approach would be for a citizenship judge to bring a reference to the Court under subsection 18.3(1) of the Federal Courts Act, RSC 1985, c F-7 [FC Act]. Among other things, this would provide an opportunity for the issue to then be brought before the Federal Court of Appeal, pursuant to paragraph 27(1)(d) of the FC Act, to finally settle the divergence in this Court’s jurisprudence that has persisted now for several decades.