Learning moments – Citizenship and pre-PR residency time while under implied status
June 3, 2020
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Hello fellow practitioners. Today’s column deals with citizenship and counting pre-PR residency time while under implied status as a temporary visitor/student/worker.
Reader’s Question:
My question is about counting physical presence for Canadian citizenship before becoming a permanent resident of Canada:
A person who was on a work permit applied for her work permit extension and was in implied status until she received a negative decision. She then applied for restoration of her status, which was approved and a work permit was issued to her.
Will the period of implied status count towards physical presence?
Answer:
Yes, pre-PR days spent in Canada while on implied status do count towards physical presence for the purpose of a citizenship application. It is important to keep in mind that when you complete the physical presence calculator, you must accurately and clearly indicate the period of time spent under implied status in order to benefit from it.
Keep in mind that the physical presence calculator collects information about the five (5) years immediately before the date of citizenship application. This eligibility period will include the time your client spent as a temporary resident or on implied status if that time falls within the last 5 years before applying.
One should list only the periods of time they had authorized temporary resident or protected person status in Canada prior to becoming a permanent resident. Once you have entered all this data, the physical presence calculator will automatically calculate the eligible number of days.
When the application is submitted, you should include evidence of having been under implied status, such proof of when the application for renewal was submitted and the letter showing the date of the outcome of the application.
To clarify for our readers, a temporary resident is defined as someone who is authorized to enter or stay in Canada as a visitor, student, worker or a temporary resident permit holder.
It should be noted that a protected person can also include the time they spent in Canada before being granted permanent residence. A protected person is someone who was found to be in need of protection or a convention refugee by the Immigration and Refugee Board or received a positive decision on a Pre-Removal Risk Assessment from Immigration, Refugees and Citizenship Canada.
An individual who made a refugee claim, or was included on a family member’s refugee claim, won’t be credited time in Canada from the date of the refugee claim unless and until they receive a positive decision confirming they are a protected person. In other words, mere claimants cannot count the time prior to receiving a positive decision.
To be eligible for Canadian citizenship, you must have been physically present in Canada for at least 1,095 days in the five years immediately before the date of your application. IRCC encourages applicants to apply with more than the minimum requirement of 1,095 days of physical presence, to account for any miscalculations of absences, or any other aspect that could lower the physical presence total below 1,095 days.
It is important to note that there is no way to meet the physical presence requirement without a minimum of two (2) years as a permanent resident.
For our reader’s convenience, the eligibility criteria to calculate time for Canadian citizenship are set out below:
- only the five (5) years immediately before the date of your application are taken into account;
- each day you were physically present in Canada as an authorized temporary resident or protected person before you became a permanent resident counts as half a day (up to a maximum of 365 days);
- each day you were physically present in Canada after you became a permanent resident counts as one day;
- time spent serving a sentence for an offence in Canada (e.g. serving a term of imprisonment, probation and/or parole) cannot be counted towards your physical presence – barring some exceptions.
The relevant provisions of the Citizenship Act which cite the physical presence requirements that must be met are as follows:
5 (1) The Minister shall grant citizenship to any person who
(a) makes application for citizenship;
(b) [Repealed, 2017, c. 14, s. 1]
(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has, subject to the regulations, no unfulfilled conditions under that Act relating to his or her status as a permanent resident and has
(i) been physically present in Canada for at least 1,095 days during the five years immediately before the date of his or her application, and
(ii) [Repealed, 2017, c. 14, s. 1]
(iii) met any applicable requirement under the Income Tax Act to file a return of income in respect of three taxation years that are fully or partially within the five years immediately before the date of his or her application;
(c.1) [Repealed, 2017, c. 14, s. 1]
(
d) if 18 years of age or more but less than 55 years of age at the date of his or her application, has an adequate knowledge of one of the official languages of Canada;
(e) if 18 years of age or more but less than 55 years of age at the date of his or her application, demonstrates in one of the official languages of Canada that he or she has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and
(f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20.
S.5(1.001) clarifies how physical presence days are to be calculated. It states as follows:
(1.001) For the purpose of subparagraph (1)(c)(i), the length of physical presence is calculated in the following manner[1]:
(a) for every day during which the person was physically present in Canada as a temporary resident or protected person under the Immigration and Refugee Protection Act before becoming a permanent resident, the person accumulates half of a day of physical presence, up to a maximum of 365 days; and
(b) for every day during which the person has been physically present in Canada since becoming a permanent resident, the person accumulates one day of physical presence.
[1] [1] See: Citizenship Act, “The Right to Citizenship”: https://laws-lois.justice.gc.ca/eng/acts/C-29/page-2.html#docCont
