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Obtaining Canadian citizenship is a decisive milestone for many permanent residents. However, the process involves strict requirements, particularly concerning timelines and proof of residency. Several Federal Court decisions shed light on how these rules are applied. Below is an overview of the key points.
1. How to prove your “physical presence” in Canada?
The Citizenship Act requires applicants to demonstrate at least 1,095 days of actual physical presence in Canada during the five years preceding the submission of their application.
To support this requirement, the document checklist provides that applicants must submit, among other things, copies of their passport and travel documents. However, when doubts remain regarding compliance with the physical presence requirement, Immigration, Refugees and Citizenship Canada (IRCC) may request additional evidence. Such documents may include:
- airline tickets and boarding passes;
- lease agreements and utility bills;
- bank statements and pay stubs;
- medical or school records;
- any other documentation demonstrating the applicant’s continuous presence in Canada.
Case law has clearly established that passport stamps do not constitute conclusive proof of an individual’s presence or absence, as several countries – including Canada – do not systematically stamp entry or exit records (Haddad v. Canada (Citizenship and Immigration), 2014 FC 976). Consequently, passport stamps alone are insufficient to establish residency.
It is important to emphasize that the burden of proving physical presence rests entirely on the applicant, who must ensure that they keep and submit complete, consistent, and credible documentation in support of their citizenship application.
2. Passport stamps or airline tickets: which carries more weight?
The Federal Court has confirmed that airline tickets have greater probative value than passport stamps, as they provide precise evidence of travel dates (Haddad v. Canada (Citizenship and Immigration), 2014 FC 976).
Always keep your airline tickets and boarding passes—they may prove essential.
3. When can a citizenship judge request additional evidence?
A citizenship judge has certain powers to further assess an application, including the ability to:
- request additional documents;
- summon the applicant for an interview;
- render a decision without an interview if the evidence on file is sufficient.
However, procedural fairness requires that the applicant be informed of any concerns raised and be given an opportunity to respond (Baker v. Canada (Citizenship and Immigration), 1999; El-Husseini v. Canada (Citizenship and Immigration), 2015 FC 116).
4. Fewer than 1,095 days of physical presence: is there any flexibility?
Since the enactment of Bill C-24 (2015), the requirement is clear: applicants must demonstrate 1,095 days of actual physical presence in Canada within the five years preceding the date of their application. The more flexible “residency” test, which previously allowed consideration of ties to Canada, no longer applies.
A recent case illustrates the current rigidity: in Canada (Citizenship and Immigration) v. Hashem (2019), Mr. Hashem was short by a single day of the required 1,460 days of physical presence. The citizenship judge deemed the shortfall negligible and adopted a more flexible interpretation, relying on the date the application was received rather than the date it was signed, contrary to IRCC guidelines. The Federal Court, however, found this justification insufficient and sent the matter back for reconsideration.
The only remaining flexibility lies in section 5(4) of the Citizenship Act, which grants the Minister exceptional discretionary power to grant citizenship in special circumstances (e.g., statelessness, hardship, exceptional services). This discretion, however, is rarely exercised (Tabori v. Canada (Citizenship and Immigration), 2022 FC 1076; Ayaz v. Canada (Citizenship and Immigration), 2014 CF 701.
5. What if you disagree with a citizenship judge’s decision in Canada?
A citizenship judge’s decision may be subject to judicial review before the Federal Court of Canada. The application must be filed within 30 days of receiving the decision, pursuant to section 22.1 of the Citizenship Act. The Federal Court does not reassess the merits of the citizenship application but instead reviews whether the judge respected the law and the principles of procedural fairness.
6. What if the 30-day deadline for judicial review is missed?
In principle, a judicial review of a citizenship judge’s decision must be filed within 30 days. However, this deadline may be extended for “valid reasons” (s. 22.1(2)(b) of the Citizenship Act).
By analogy with the Immigration and Refugee Protection Act, the Federal Court applies the criteria from Canada (Attorney General) v. Hennelly (1999):
- a continuing intention to pursue the application;
- merit in the application;
- no prejudice to the respondent;
- a reasonable explanation for the delay.
These principles were confirmed in Singh v. Canada (Citizenship and Immigration), 2021 CF 93. By contrast, good faith, ignorance of the law, or a representative’s mistake do not constitute valid reasons (Cornejo Arteaga v. Canada (Citizenship and Immigration), 2010 CF 868).
Conclusion
Canadian citizenship is governed by a strict legal framework in which every day and every piece of evidence matters. Respecting deadlines, keeping accurate records, and understanding the limits of a citizenship judge’s powers are essential to maximizing your chances of success.
At HMD Avocats, we assist our clients in preparing and defending their citizenship applications, building strong files, and avoiding pitfalls related to evidence and timelines.