2013 January - Download PDF

 

Changes to Canada’s Citizenship Act

 

The Canadian government made several notable changes to its citizenship laws over the past few years. As a result of these changes, Canadian citizenship by descent has been limited to first generation of children born outside of Canada. Also, most applicants are now required to provide up-front objective evidence of their language ability at the time they apply for Canadian citizenship.


Limitation of citizenship by descent


On April 17, 2009, a law was passed to change Canada’s Citizenship Act. Among others, the most notable effect of this amending legislation was that it limited Canadian citizenship by descent to the first generation of children born outside of Canada to a Canadian parent.

Pursuant to the new rules, Canadian parents can only pass citizenship to their children born outside of Canada if at least one parent was born in Canada or is a naturalized Canadian. This change affects the citizenship entitlement of adopted children as well. For adopted children who became Canadian citizen through the direct route, (i.e. the child was born outside Canada and adopted on or after January 1, 1974 and became citizen without having to immigrate to Canada), the adopted person’s children born outside Canada will not be Canadian citizen. For persons adopted outside Canada who became citizen through naturalization, they can pass citizenship to their children, even if their children are born outside Canada.

This limitation does not apply to all children born to a Canadian parent who is working outside the country for the Canadian federal or provincial governments, or serving in the Canadian forces. These children will be Canadian regardless of the generation in which they were born outside Canada.


New language rules for citizenship applicants


For all citizenship applications submited on and after November 1, 2012, all citizenship applicants aged 18- 54 must provide objective evidence that they meet the language requirement, achieving the Canadian Language Benchmark 4 in speaking and listening. Acceptable evidence of language ability include the results of a CIC approved third party test, or the evidence of completion of secondary or post secondary education in English or French, or the evidence of achieving the appropriate language level in certain government-funded language training programs (e.g. LINC).

Apart from the objective assessment tools, the CIC will continue to use the applicant’s interaction with CIC staff and with citizenship judges as part of the language ability assessment.

It is important to note that the CIC require the Applicant to submit evidence that he or she meets the language requirement at the time that the application was submitted. The CIC will return applications without evidence of language ability.

Persons over 55 years of age are exempted from meeting this language requirement. The Case Management Branch of the CIC also have discretionary authority to waive the language requirement for applicants between the age of 18 and 54 in exceptional cases of genuine need. In order to obtain this waiver, an applicant must submit a request to CMB, along with a medical opinion from his/her physician attesting that the applicant is unable to meet the language requirement.

For more information on current rules on Canadian citizenship, please visit http://www.cic.gc.ca/english/citizenship/index.asp.


Changes on Immigration law


The Minister for Citizenship and Immigration Canada (CIC) has introduced changes to the Immigration and Refugee Protection Regulations regarding sponsors in the recent years which tighten up sponsorship. The changes to the regulations to bar sponsorship for violence crime came into effect on November 17, 2011. The changes added a sponsorship bar for violent crime as well as expanded the list of victims of family violence which affect sponsorship bar.


Sponsorship Bar for Family Violence

 

Anyone convicted of an offence causing bodily harm under the criminal code against a list of relatives is barred from sponsorship. The previous list of relatives before the regulation changes was shorter and consisted of the following:

  • The spouse, partner, dependent child, or dependent child of a dependent child of the sponsor or the sponsor’s partner; and
  • The brother/sister, parent/grandparent, aunt/uncle or cousin of the sponsor or the sponsor’s partner.

With the regulory changes now in force, the expanded list of relatives includes:

  • The sponsor’s ex-spouse or ex-partner and their children;
  • The ex-spouse of the sponsor’s current spouse or partner and their children;
  • The partner or ex-partner of the sponsor’s brother/sister, parent/grandparent, aunt/uncle, or cousin;
  • The spouse or ex-spouse of the partner’s brother/sister, parent/grandparent, aunt/uncle, or cousin;
  • A foster child under the current or former care and control of the sponsor or their current or ex-spouse or partner; and
  • The sponsor’s current or ex-boyfriend/girlfriend, whether or not they live together, or a family member of that person.

 

Sponsorship Bar for Violent Crime

 

The new regulations have added a sponsorship bar for violent crime to any one convicted for committing or attempting to commit a violent offence punishable by a maximum term of imprisonment of at least 10 years against anyone is now barred from sponsoring a member of the family class to come to Canada.

 

Length of the Sponsorship Bar

 

There are no changes to the length of the sponsorship bar under the new regulations. The sponsorship bar remains in effect for a potential sponsor convicted in Canada until the sponsor:

  • Has been acquitted on appeal for the crime;
  • Has been pardoned for the crime; or
  • Five years have passed since the sentence for the crime has been served.

If a potential sponsor was convicted of a crime outside Canada, the sponsorship bar is in effect until the sponsor:

  • Has been acquitted on appeal for the crime; or
  • Five years have passed since the sentence for the crime has been served and the sponsor demonstrates rehabilitation.

 

Five-year Sponsorship Bar for Persons Sponsored to Canada as a Spouse or Partner


Under the changes that came into force on March 2, 2012, a previously sponsored spouse or partner cannot sponsor a new spouse or partner within five years of becoming a permanent resident, even if the previously sponsored spouse acquires Canadian Citizenship during this five-year period. These changes affect spousal sponsorship applications received on or after March 2, 2012. Sponsoring other members of the Family Class will not be affected by the changes.


Spousal Sponsorship Changes – Conditional Permanent Residence


The Minister of Citizenship and Immigration introduced amendments to the Immigration and Refugee Protection Regulations which came into effect on October 25, 2012. The new amendments only apply to applications that are submitted after this date.

Under the amendments, spouses, common-law or conjugal partners who are in a relationship of two years or less with their sponsor and have no children in common with their sponsor at the time of sponsorship application are subject to a period of conditional permanent residence. For people who are landed under the conditional permanent residence category, it means that a sponsored spouse or partner must co-habit in a conjugal relationship with their sponsor for a period of two years after receiving permanent resident status. If this condition is not met, permanent residence status could be revoked and an order for removal from Canada may be issued.

Once a sponsored spouse or partner under this category receives permanent resident status, they are not required to provide evidence to CIC to show they are co-habiting in a conjugal relationship with their sponsor during the two year conditional period, unless the CIC requests it. The CIC may not investigate every sponsored person, only those they suspect where the condition is not being met. The CIC may request for information at any time so a sponsored spouse should keep any evidence ready to protect themselves in the event they are under investigation.

Minister Jason Kenney has indicated that these changes have been enacted to deter marriage fraud, although he never provided any information about the extent of the problem, and information released by Citizenship and Immigration Canada suggests that the issue of marriage fraud is far from being widespread.

There are certain exceptions to the conditional permanent residence requirement. The condition ceases to apply in cases where:

  • There is evidence of abuse, including physical, sexual, psychological, or financial abuse
  • There is evidence of neglect by the sponsor, such as failing to provide the necessities of life
  • The sponsor fails to protect the sponsored spouse or partner from abuse or neglect during the conditional period, including failure by the sponsor to protect a spouse or partner from abuse or neglect by another person related to the sponsor, whether or not the other person is in the household, or
  • The sponsor has died while the sponsored spouse or partner was still subject to the condition and had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death.

If there is evidence that the sponsored spouse or partner falls within an exception for the conditional permanent residence requirement, the sponsored spouse or partner can request for an exemption from the condition at any time within the two year conditional period by calling the CIC Call Centre at 1-800-242-2100.

The sponsored spouse or partner may have accompanying family members or sponsor members of the family class and their accompanying family members. The permanent resident status of these accompanying family members or sponsored members of the family class is contingent upon their sponsor meeting this condition.

Let’s take an example of a woman who is sponsored by her husband to Canada. The Application was submitted in November, 2012. By that point, the woman and her husband had only known each other for one year, and they had no common children. The woman become landed in Canada in June, 2013. The woman will be under the conditional permanent residence requirement for two years, until June, 2015. If the woman has a child from a previous marriage she wishes to sponsor to Canada, she may do so during this two year conditional period. However, if the woman is found not to have met the conditional permanent residence requirement, her permanent resident status may be revoked and the sponsorship of her son will be affected. The same rule applies if the woman came to Canada with an accompanying son from a previous
relationship under the same sponsorship by the current spouse. If the woman fails to meet the conditional permanent residence requirement, both the woman and her accompanying son’s permanent resident status will be affected.

If you a sponsored spouse who may be affected by the new conditional permanent residency, you should seek legal advice.

Further information on conditional permanent residence can be obtained from the Citizenship and Immigration Canada (CIC) website at www.cic.gc.ca.