ARCHIVED – Operational Bulletin 250 - November 22, 2010

Deeming Permanent Residence for Registered Indians Applying for Citizenship

Background

This Operational Bulletin (OB) provides information on the process available to a person who is registered as an Indian under the Indian Act (Status Indian) and who is not a Canadian citizen, to apply for a grant or resumption of citizenship.

Canadian citizenship can be acquired through birth in Canada, birth outside Canada to a Canadian parent, or through the naturalization (grant) process.

It is possible that a person may have Indian status but not be a Canadian citizen. For example, a person who was born outside Canada to a Canadian parent in the second or subsequent generation might not be a citizen due to the first generation limit on citizenship.

If it is determined that a person is not a Canadian citizen and the person is a registered Indian under the Indian Act, the person may apply for a grant or resumption of citizenship. All regular grant and resumption requirements would apply to the individual, including language and knowledge requirements for adult grant applicants; however, the process differs in respect to verifying and determining that the person meets the residence and permanent residence requirement. In this situation, the Citizenship Act includes a provision that can be used to deem that the applicant meets the requirement to be a permanent resident.

References to “persons registered as an Indian under the Indian Act” are used in these guidelines as they relate to the definition under section 2 of the Indian Act, which is necessary in determining whether certain provisions of the Immigration and Refugee Protection Act and the Citizenship Act are applicable.

Policy

Paragraph 2(2)(b) of the Citizenship Act may be applied to deem that an applicant who is registered as an Indian under the Indian Act meets the grant of citizenship requirement to be a permanent resident in paragraph 5(1)(c), subsection 5(2), or paragraph 11(1)(d).

Under subsection 19(1) of the IRPA, registered Indians have the right to enter and remain in Canada. Therefore, a person who has satisfied an officer upon entry into Canada that he/she is registered as an Indian is lawfully present in Canada.

For the purposes of assessing whether or not a registered Indian who is applying for a grant of citizenship meets the requirement to be a permanent resident as provided in 5(1)(d), 5(2) or 11(1)(d) of the Citizenship Act, the date the applicant was admitted to Canada as a registered Indian should be used as the equivalent to the date the person became a permanent resident (landing date). If the applicant was registered as an Indian after his or her entry into Canada, then the date of registration should be used as the equivalent to the date the person became a permanent resident. This is also in keeping with how residence is calculated in these cases (i.e. how pre-status time in Canada is calculated for residence). See below for the residence calculation for these cases.

Procedure

The current citizenship status of the individual should be determined before considering the use of this OB in respect to processing an application for a grant or resumption of citizenship.

Adult grant applications under subsection 5(1) or 11(1):

To assess whether an applicant meets the requirements of 5(1)(c) of the Citizenship Act, the citizenship official must first verify the date the applicant entered Canada and then calculate the applicant’s residence during the four years immediately before the application for a grant of citizenship or one year for resumption.

Steps:

1. Establish entry into Canada for purposes of living here.
2. Record the date the applicant was registered as an Indian under the Indian Act (i.e. date person became a Status Indian).
3. If the date of entry into Canada precedes the date of registration, the date of registration will be used for citizenship purposes as the equivalent to the date the person becomes a permanent resident (i.e. landing date). This means that some applicants may have the equivalent to non-permanent resident time in Canada (“NPR” time) for the time that they were resident in Canada, but not registered Indians.

Residence is assessed in the same way it is assessed for other 5(1) grant applications. Within the relevant 4-year period immediately preceding the application date:

• Each day present in Canada following the date the person was registered as an Indian and that falls within the relevant 4 year period will be counted as 1 day.
• Any day present in Canada that is prior to the date of registration as an Indian and that falls within the relevant 4 year period will be counted as a half day. Applicant should provide proof of residence in Canada prior to being registered to obtain “NPR” days (e.g. lease, school records, employment records, etc.).

For 11(1) resumption cases, there is no “NPR” time. The residence requirement of one year immediately before the date of the application is met if the applicant was registered as an Indian for that full one year period, and was residing in Canada.

Documentation:

• Proof that the person was registered as an Indian under the Indian Act, e.g., Certificate of Indian Status (CIS) or Secure Certificate of Indian Status (SCIS), also called a Status Card.
• Satisfactory evidence of entry into Canada. The applicant must clearly demonstrate the date (or approximate date) of entry. Where the citizenship official requires more evidence to be satisfied of the date of entry, additional documents could be requested, such as lease or rental agreements, school records, employment records, etc.
• If further evidence of entry and/or residence is deemed necessary, CPC or the local office may send the applicant a Residence Questionnaire with covering letter asking the applicant to provide details to help establish residence. See Annex A.
• Completed application, 2 pieces of personal identification, 2 signed photographs and applicable grant (or resumption) fees.
• If the evidence or information is unclear or requires follow-up, the file should be referred to the local office.

CPC Sydney should include a note to file advising the local office that paragraph 2(2)(b) should be considered and that the applicant has provided evidence of being registered as an Indian and evidence of entry to Canada. If the applicant has not provided satisfactory evidence of either fact, the referral to the local office should reflect this so that they can follow up with the applicant.

The citizenship judge is the decision maker on 5(1) and 11(1) applications and will review the evidence presented to determine whether or not the applicant meets the residence requirement as provided in 5(1)(c) or 11(1)(d).

Minor grant applications under subsection 5(2):

To assess whether an applicant meets the requirements of 5(2) of the Act, follow the procedure above (as for a 5(1) grant) to establish the date the person is deemed under paragraph 2(2)(b) to have been lawfully admitted for permanent residence for the purposes of applying for citizenship. Minors are not required to reside in Canada for any length of time but must be lawfully present in Canada. If the citizenship officer is satisfied that the minor was registered as an Indian (i.e. Certificate of Indian Status on file) and is lawfully present in Canada (i.e. satisfactory evidence that the minor is in Canada), it is not necessary to request the minor’s parent or guardian to complete the Residence Questionnaire.

Annex A: Text for covering letter to accompany Residence Questionnaire for adult grant applications

This is with reference to your application for Canadian citizenship.

In addition to other requirements to become a Canadian citizen, all adult applicants must meet a residence requirement which consists of two criteria as follows:

• be a permanent resident of Canada; and
• reside in Canada for at least 3 years in the 4-year period immediately before the date of application for citizenship.

The Citizenship Act further provides that a person who is lawfully present and entitled to reside permanently in Canada is deemed to have been lawfully admitted to Canada for permanent residence. Since persons who have been registered as Indians under the Indian Act have the right to enter and remain in Canada, they may meet the citizenship residence requirement described above by providing proof that they have been registered as an Indian (i.e. Status Indian) and that they have resided in Canada for the required amount of time.

In order to be granted citizenship, the citizenship judge assessing your application must be satisfied that you meet the requirements for citizenship. The enclosed Residence Questionnaire will assist the judge in determining if you meet the residence requirement.

Please complete the enclosed questionnaire—including the place (city or nearest city or town) where you entered Canada in question 1—and return it to the office at the above address within 60 days of this letter, along with a copy of both sides of your Certificate of Indian Status (status card). Please include a copy of this letter.

Yours sincerely,

Citizenship Official

Note:
This letter can be changed to suit a resumption case by replacing the first sentence of the third paragraph with: “In order to be granted citizenship, the citizenship judge assessing your application must be satisfied that you have been a resident of Canada for one year immediately before the date of your application and that you were registered as an Indian prior to that one year”.