Citizenship for Adopted Children

On April 3, 2009, Canada’s Citizenship Act was finally amended to allow children adopted abroad to become Canadian citizens without having to apply for permanent residence and becoming a permanent resident first. The amendment was finally brought in as a response to the 1999 decision of Federal Court of Appeal in McKenna v. AG (Canada) [1999] 1 F.C. 401 wherein the Federal Court of Appeal addressed the discrimination against adopted children who, unlike biological children, must first undergo the immigration process before being able to apply for citizenship. The amendments of April 2009 have now eliminated the distinction between children born to and children adopted by Canadian citizens abroad. Children adopted by Canadian citizens abroad can now directly apply for Canadian citizenship without first having to go through the immigration process and becoming a permanent resident.

There are no criminal, security or background checks just as there are none for children born to Canadian parents abroad. Children over and above the age of 18 who are adopted will also benefit from the new legislative amendments so long s they are able to demonstrate the existence of a genuine parent-child relationship at the time of the adoption and before the child turned 18. In order to prevent child trafficking and abduction of children, the amendments require that the adoption must be demonstrably legal and in the best interest of the child.

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Refusal of Citizenship Application and Appeal

Your application for obtaining Canadian citizenship may be refused for a number of reasons, most important (and common) of which is failure to meet the residency requirement. The rejection of your application for citizenship must be communicated to you in writing within 60 days after your application was referred to a citizenship judge. Upon receiving the judge’s decision, the law provides you with 60 days time within which you can decide whether or not you wish to appeal rejection or refusal of your citizenship application.

The appeal from the refusal of your citizenship application must be made to the Federal Court. Appeals to the Federal Court involve a complicated procedure subject to strict evidentiary and procedural rules. You would therefore be well advised to retain the services of an experienced citizenship and immigration lawyer who is thoroughly familiar with the Federal Court’s decisions interpreting the legal meaning of the word “residence”.

You may think that it is rather straightforward: you either meet the three-year residency requirement or you don’t. However, despite the apparent clarity of the law as to the method for calculating the three-year residency, the phrase “residency” is not a defined word. There are some judges of the Federal Court who have defined “residency” as requiring actual physical presence in Canada. Other judges have, however, interpreted the word in a way that actual physical presence is not necessarily required so long as the applicant can demonstrate significant ties and connection to Canada. The connection to Canada may be demonstrated by such indicators as ownership of property, Canadian bank account, investments in Canada, membership in various social and recreational clubs, drivers’ license and etc. There are therefore people who have been able to obtain Canadian citizenship despite extended absence from Canada.

In addition to the residency requirement (of 1,095 days), there are other potential grounds for rejection of your citizenship application. These may include any, or a combination, of the following grounds:

• If you were under a removal order when you applied;
• If you were charged or convicted of an indictable criminal offence in the past three years when you applied;
• If you were in prison, on parole, or on probation at the time of your application;
• If you were being investigated for or had been convicted of war crimes when you applied; or
• If your Canadian citizenship had been revoked in the last five years.
• You must therefore carefully review the eligibility requirements for citizenship before applying. To see further details in this regard please click Obtaining Canadian Citizenship.

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OBTAINING CANADIAN CITIZENSHIP

There are two major avenues for obtaining Canadian citizenship: first, you may obtain Canadian citizenship by way of naturalization; second, you may obtain Canadian citizenship by birth or by decent (born in Canada or outside Canada to Canadian parents or adopted by Canadian parents). Obtaining Canadian citizenship by way of naturalization refers to the process through which you first become a landed immigrant of Canada and having spent three years living in Canada you may then qualify for citizenship. The process of becoming a Canadian citizen is rather straightforward, but before applying for Canadian citizenship, you should make sure that you satisfy the requirements so as to avoid potential refusal of your citizenship application and subsequent complication. If you applied for Canadian citizenship and your application was refused, you can consult the Refusal of Citizenship Application and Appeal section of our website. To qualify for Canadian citizenship, you must satisfy the following requirements:

You must first be a permanent resident of Canada and your status as a permanent resident must not be under investigation; you must not be under a removal order or an inquiry into your residency obligation;

Subsequent to becoming a permanent resident, you must have resided in Canada for a total of three years within the four years immediately before applying. The time you spent in Canada beforebecoming a permanent resident can be included in this time period, but counted as half (to a maximum of one year). In essence, the three years of residence requirement is calculated as follows:

You are deemed to have accumulated one-half day of residence for every day of being in Canada before becoming a permanent resident; and

For every day of residence after becoming a permanent resident, you are deemed to have accumulated one day of residence;

It must be noted that you cannot accumulate residence if you are under a probation order, a paroled inmate, or you are in jail or reformatory.

You must be 18 years of age or older in order to apply for Canadian citizenship. This does not mean that children cannot become Canadian citizens through naturalization. Children under 18 are normally included in their parents’ application. The child, however, must still meet the permanent residency requirement but is not subject to the three-year rule of having lived in Canada;

You must be able to communicate in either official languages of Canada, English or French. The citizenship judge has the discretion to waive this requirement in certain circumstances;

You must have sufficient knowledge of Canada’s geography, history, and system of government and have knowledge about the rights and responsibilities of citizenship. Again, these requirements may be waived in certain circumstances;

You will therefore be required to write a citizenship test measuring your knowledge of Canada and your responsibilities as a Canadian citizen. The test may be written or oral and you have the right of asking to have the citizenship test in either of the official languages of Canada. You will be required to take the citizenship test if you are between the ages of 18 and 59. For elderly applicants, the test may be waived.

Criminality and Citizenship

You cannot become a citizen if you have been convicted of or even charged with an offence under the Citizenship Act or of a criminal indictable offence within three years before applying. In addition, you would also not qualify for Canadian citizenship If you have had your citizenship taken away within the last five years or if you are in prison, on parole, on probation, or under a removal order. Conviction of war crimes or crimes against humanity are further disqualifying factors. Therefore, you should not apply If you are charged with an offence and/or you are waiting for your trial. You should wait until your trial is finished before you apply for Canadian citizenship.

Under the Citizenship Act, generally speaking, the days during which you are on probation, on parole or in prison do not count towards the three-years residency requirement. It should, however, be noted that conditional discharges and time spent on probabtion as a result of a conditional discharge are treated differently.

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Sponsoring Refugees

Under the Canadian refugee system, a certain number of groups and individuals are given the ability to sponsor a refugee from outside Canada. These are called “sponsors” and their responsibility is to provide assistance, whether financial or emotional, to the refugee in settling in Canada once he or she arrives in Canada. The sponsors’ responsibility is limited to the particular duration of the sponsorship, normally one year or until the refugee can financially support him/herself (whichever comes first). The sponsors’ responsibility includes assistance in providing not only financial help but also food, accommodation and clothing.

The applications for initiation of the process are normally made to the visa offices outside Canada. Once the application is made, the visa officer in charge will review the application in determining qualification as a refugee under Canada’s Immigration and Refugee Protection Act and related regulations.  Medical, security and background checks are conducted as part of the process in order to ensure that the refugee is not inadmissible to Canada. There are a number of ways for sponsorship:

• Groups of five;
• Community sponsors; and
• Sponsorship Agreement holders.

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Refugee Claims

The Canadian refugee system is one of the most advanced and claimant-friendly refugee systems in the world. The Canadian refugee system is designed to protect persons whose lives are in danger or who face persecution, torture, cruel or unusual treatment or punishment in their home country or the country of deportation. When a person fears returning to his home country, s/he is given the chance to make a refugee claim before the Immigration and Refugee Board (IRB).

The refugee claim can be made either outside Canada, at the port of entry (POE) or in-land subsequent to arrival in Canada. Refugee claims made outside Canada are the exception as by far the majority of refugee claims are made in Canada or at the port of entry.

Upon claiming refugee protection, an officer of Citizenship and Immigration Canada will meet with you in order to assess whether you are eligible for making a refugee claim. In this meeting, you will be asked to fill out some forms and return them to the assessing officer. Once the refugee officer makes a determination that you are eligible for making a refugee claim, he or she will then forward / refer your claim to the Refugee Protection Division (RPD) of the IRB. Upon acceptance of your eligibility for making a refugee claim, you will be given a form called Personal Information Form (PIF). This is by far the most important document that the refugee claimant will be asked to fill. This form contains all the questions concerning your personal background, family members and most importantly questions relating to why you are making a refugee claim. You will be asked to outline who you fear as agent of persecution, why you fear them and if you have made any attempts in seeking protection from your home country’s government and police forces. Your claim will be assessed based on the answers that you will give in this form. You will also be asked to attach to the PIF form any evidence on which you intend to rely in making your refugee claim. This may be evidence that is personal to you, directly relating to your personal circumstances, or evidence that is about your home country’s general country conditions. Personal documents as well as the documents relating to general country conditions are of outmost importance in evaluating your refugee claim.

We therefore strongly encourage you to seek advice from competent and experienced legal counsel before filling the PIF and submitting the supporting documentation. At Citizenship and Immigration Centre (CIC), we have successfully represented many clients from various countries in making their refugee claims. We continuously strive to update our knowledge of the general country conditions in the top 10 refugee producing countries. At CIC we are committed to protecting your rights aggressively.

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LIVE–IN CAREGIVERS

This is an employer-driven program under which Canadian employers are allowed to hire foreign nationals and to obtain work permits for them allowing the foreign national to enter Canada for the purpose of assisting the Canadian employer with child care, senior home support care or care for a disabled family member. A live-in caregiver is defined as a person “who resides in and provides child care, senior home support care or care of the disabled without supervision in the private household in Canada where the person being cared for resides.

The Live-in Caregiver Program requires the caregiver to have:

1. successfully completed a course of study equivalent to a secondary school diploma in Canada;
2. completed 6 months of full-time training or 12 months of full-time paid employment (which includes at least 6 months of continuous uninterrupted employment with one employer) in an occupation or a field related to the proposed employment. This experience must fall within the three years immediately prior to the day on which the application for work permit is submitted;
3. an ability to speak, read and listen to one of the official languages of Canada (English or French) at a level to effectively communicate independently;
4. a written employment contract with their future employer in Canada.

Item (d) above is designed to secure a proper working arrangement between the employer and the caregiver by setting out both parties’ responsibilities and duties in clear terms. It is of outmost importance to note that the employer-employee relationship must comply with the applicable Employment laws of the given province in which the parties are. For example, in Ontario, the minimum requirements of Employment Standards Act, 2000 (as amended from time to time) must be adhered to: i.e., hours of work, rest periods, vacation pay, eating periods, minimum wage, overtime work, deductions, paid holidays etc. It is therefore imperative that you obtain expert legal advice from experienced counsel who is thoroughly familiar with the province’s employment laws.

It must be noted that a live-in caregiver cannot work for any employer other than the one specified in the work permit. It must also be noted that applicants who work as a LIVE–OUT caregiver and those who work for more than one employer at a time are automatically kicked out of the Live-In Caregiver Program.

CAN I RENEW MY WORK PERMIT?

Work permits are issued for one year at a time and must be renewed before expiry. In order to renew, you must apply to Vegreville centre before the expiry date. You do not need to obtain a new validation from HRSDC If you continue to work for the same employer. You are, however, subject to other requirements.

CAN I CHANGE EMPLOYER?

You may change your employer, but in order to do so you must apply for a new work permit, with a validated job offer and a new employment contract by which the employer and caregiver define, in clear terms, their respective duties and responsibilities. The new work permit will again name the employer specifically and you cannot work for anyone else other than the named employer. You must also continue to meet the requirements of the Live-In Caregiver Program.

You must be very careful when it comes to changing employers as the interruption of your employment may have fatal consequences to your ultimate application for permanent residency later. We therefore encourage you to contact an experienced immigration counsel in order to ensure your transition from one employer to another will not affect your subsequent application for permanent residency.

It should be noted that interruptions in periods of employment are permitted so long as the interruptions do not violate the eligibility requirements for applying for permanent residence, as outlined below.

AM I ELIGIBLE TO APPLY FOR PR STATUS?

You can apply for Permanent Resident status so long as you have completed a minimum of two years employment as a live-in caregiver and your two-years period of employment must have occurred within the three-years period following your entry to Canada under the program. This two-year period need not be uninterrupted but it cannot represent work done for more than one employer at a time.

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WORK PERMITS

Generally speaking, in order to obtain a work permit, you must first find a Canadian employer that is willing to give you a “job offer”. The Canadian employer would then have to apply to Human Resources Canada for what is commonly referred to as a “labour market opinion” (LMO). In that application, the employer is essentially asked to demonstrate why s/he (or it) could not find a Canadian to do the job and why it is necessary to hire a foreign national for the job.

Once the Department of Human Resources issues a positive LMO, you can then apply for your work permit to the appropriate visa office outside Canada. It should be noted that the visa officer still has discretion to reject the application for work permit and that a positive LMO is not a guarantee for work permit.

Depending on job classification, skills and experience, a person who works on Canada for a period of two years under a valid work permit may be qualified to apply for permanent residency under the Canadian Experience Class.

There are certain class of people who are exempt from the work permit requirements of Canadian immigration laws. These include (subject to certain conditions and rules):

• Foreign representatives properly accredited by the Department of Foreign Affairs and International Trade and their family members (essentially diplomats and UN representatives);
• Some student working on campus;
• Performing artists;
• Athletes;
• International reporters;
• Guest speakers;
• Individual members of an organizing committee for a convention or seminar;
• Clergy and spiritual counselors;
• Judges or referees on international amateur sports;
• Examiners or evaluators of academic projects or theses;
• Expert witnesses;
• Civil aviation inspectors;
• Members of crew for international transportation;
• Providers of emergency services; or
• Applicants who have applied for extension of their work permit until a decision is made on their application.

• International business visitors who are here to purchase Canadian goods or services or to receive training on the purchased goods or services;
• Business visitors giving or obtaining training (subject to certain rules and restrictions);
• Representatives of foreign businesses or governments selling goods (subject to certain rules)

STUDY PERMITS

Generally, and subject to certain limited exceptions, foreign nationals who want to study in Canada must first obtain a Study Permit. Once a study permit is obtained, the holder of the permit is allowed to enroll in an academic course of study for a limited period as specified on the permit.

There are two essential prerequisites/criteria for being issued a study permit. That is, to be granted a study permit, you are required to satisfy the Visa Officer that your stay in Canada is (1) of a temporary nature only and that (2) you will leave Canada at the end of the period authorized for your stay. As part of your application, you must therefore submit evidence of sufficient ties and connection to your country of nationality or permanent residence.

Before getting there, however, you must first obtain admission to an educational institution as the first step towards. To this end, you must apply to the educational institution(s) of your choice. Upon being accepted, you will be issued an admission offer communicated to you in the form of a letter specifying the program or course of study, the tuition fees and other related details.

You will also have to satisfy the Visa Officer that you have sufficient funds available such that you can pay for your tuition fees and general living expenses for at least one year. Moreover, you will have to undergo medical examination and may, in addition to the Study Permit, require a visitor visa if you are a national of a non-exempt country.

In certain circumstances, Individuals who are in Canada under a Study Permit may be able to work.

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Investor Program Re-opens

As stated in our previous news release, the Federal Government has raised the minimum net worth requirement under the Investor Program from $800,000.00 to $1.6 million, essentially doubling the minimum net worth requirement.

The same was also applied to the actual amount of investment that a potential applicant under the Investor Class is required to make. Previously, the amount of investment was $400,000.00. This amount has now increased to $800,000.00.

Please keep in mind that the changes in the “net worth” and “investment” requirements have now been confirmed by Minister Kenny.

Skilled Workers Class

This class consists of applicants whose qualifications are measured under a “Point System”. The Point System is primarily based on “education”, “work experience” and language abilities which are particularly useful for establishment in the Canada. The system is designed to measure the likelihood of success in being economically established in Canada and adapting to the Canadian society.
As a minimum, you must first be able to show that you meet the minimum eligibility requirements as explained in the “Changes to Immigration Under Skilled Worker Category” section of our website. If you successfully meet the minimum requirements, you will then be assessed against the following selection factors, namely: age, education, official language abilities, work experience, adaptability and arranged employment: you will be allocated a maximum of 25 points for your educational credentials, 24 points for language abilities, 21 points for work experience, 10 points for age, 10 points for arranged employment and 10 points for adaptability.

As it currently stands, in order to qualify, you must obtain a minimum of 67 points. This minimum required number of points is subject to regulatory change by the responsible minister.

Factor 1: Work Experience (Maximum 21 points)

Applicants will be granted a maximum of 21 points if they have four (4) years of work experience and the points allotted will decrease as the work experience decreases. Generally speaking, an applicant should typically have at least four (4) years of work experience as a prerequisite for a successful application. In certain cases, however, an applicant who has less than four (4) years of experience may still qualify if s/he has previously studied or worked IN CANADA. In other words, the applicant may be able to compensate for the short fall by reason of previous work or study in Canada.

Skilled workers must submit satisfactory documentation proving their work experience.

Factor 2: Age (maximum 10 points)

Under this factor, pints are given for the applicant’s age based on the rationale that persons in a particular age category will be more likely to economically establish themselves.

Factor 3: Education (maximum 25 points)

In this category, individuals receive points based on a combination of number of years of full time study and the educational degree obtained. For example, you will be given 25 points if you have obtained a Master’s or PhD degree and went to school for at least 17 years on full-time basis.

The calculation of points allotted to educational factor is rather complicated and we suggest that you arrange for our “30 minutes free initial consultation” so that we can give you an estimate of the points you are likely to obtain.

Factor 4: Language Abilities (Maximum 24 points)

The applicant must take the appropriate English or French test and may be awarded up to a maximum of 24 points; 16 for fluency in 1st language and 8 for fluency in the 2nd language.

Factor 5: Adaptability (15 points)

If the applicant has a close relative like parents and brothers, for example, s/he will obtain 5 points. The educational credentials of the secondary applicant (the spouse) will also obtain a maximum of 5 pints, while previous study or work in Canada may also be used as grounds for further points to a total maximum of 15 points. Note that the maximum is 15 points. Therefore, you cannot add previous study, presence of family and spousal education and ask that you be granted 20 points.

Self Sufficiency

In addition to the above, applicants under the skilled workers class are expected to have sufficient funds available for transfer to Canada. The rationale is that applicants must have sufficient financial resources available to them so that they can maintain themselves and their families during the first six (6) months of their arrival without relying on financial assistance from public resources such as social services. The dollar amount of this requirement varies according to the number of individuals in the applicant’s family. There is an exception to this regulatory requirement if the applicant has a job waiting for him in Canada.

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