Immigration Newsweek
Immigration Newsweek
By Atty. Henry Moyal
Q. I became a permanent resident of Canada over 20 years ago by being adopted by a Canadian family. I now want to apply for Canadian Citizenship. I read some material online and I am confused as to whether I should be applying as an adopted person born abroad or based on my 3 years of residence in Canada?
A. You seem to have the luxury of two options. In other words, you are eligible to apply for Canadian Citizenship in one of two ways, each has its pros and cons.
Option A – Apply based on the fact that you were were adopted as a minor and you were adopted by a parent who was a Canadian Citizen at time of your adoption:
– Involves a two step application process
– Canadian parent must be involved
– Cannot pass on your citizenship to next generation if you in turn have a child who is born abroad
– No language test required
– No past tax filing required
– Number of days in Canada not relevant
Option B- Apply for Citizenship based on living in Canada for 3 out of the last 5 years:
– 1 step application process
– Canadian parent not involved
– You can pass on your citizenship to next generation if you have a child that is born abroad
– Language test required or proof of schooling in English language
– Must have filed taxes for 3 out of the last 5 years
– Must have been in Canada for at least 1095 days in the last 5 years
Q. I obtained permanent residence in Canada in 2015 as a single person. After landing I returned to the Philippines to marry my girlfriend. She has a young child from the estranged father and I want to now return to Canada with the whole family to sponsor them. How is this done?
A. Your question is interesting because it raises a variety of immigration issues and deals with several laws. It is best to navigate each issue separately:
Sponsorship of Spouse
You are a permanent resident of Canada. Not a Canadian Citizen. Under immigration law, you must be “residing” in Canada from the time you file sponsorship until end of application. The courts have defined “residing” in Canada as your place where you live on a regular basis ( have a job, assets etc…). In other words, leaving Canada for a few weeks vacation is usually not a problem. However, in your case, it seems your permanent home lately has been in the Philippines. You therefore cannot file the sponsorship until you are in Canada.
Residency Obligation
All permanent residents must meet the residency requirement which is physically living in Canada for 730 (non-continuous) days in the last 5 years. If you landed in 2015 then I assume your PR card expires in 2020. As such, you must live or must have lived in Canada for 730 days to renew your PR card and to meet the residency rule. Did you? From your question above, if you left Canada after landing in 2015 then it is possible you are in breach of the rule which may surface upon filing the sponsorship. This can lead to a problem depending of your actual days physically in Canada. As well, you have not mentioned whether you will be returning to Canada even without your family. That may be a good strategy to salvage the case.
Visitor Visa vs. Immigrant Visa
Many people think they can simply obtain a visitor visa for their spouse and then they can sponsor the spouse inside Canada. While it is true, the difficulty in that strategy is to first obtain the visitor visa. A visa officer is likely to refuse a visitor visa application for a person who is married to a Canadian PR/Citizen because the likelihood of returning home is virtually zero. In other words, a visitor visa is a “temporary visa” where the applicant will visit Canada and return to the Philippines. Since the Canadian PR will likely sponsor the applicant for a “permanent” visa, the odds of receiving an approved visitor visa is low.
Child From Previous Relationship
You must obtain consent from the father of the child to have the child immigrate to Canada. If the child is under 18 years of age, the laws of Canada in accordance with the Hague Convention require a signed notarized consent from the non-accompanying parent allowing the child to leave the Philippines. If you cannot locate the father and/or if the father refuses to give consent you will have a problem. Obtain legal advice for alternative strategies.
Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.
The above article is general advice only and is not intended to act as a legal document.
Send questions to Attorney Moyal by email canada@moyal.com or call 416 733 3193
