Meeting minimum residency while working for International Organization

[armoured]

To clarify: I believe there is little likelihood of a 'judicial' resolution that would resolve the issue from the perspective of employees of international organisations. In other words, it would require changes to the relative legislation - and hence political interest and will.

Unfortunately I am not optimistic that it will ever become a particularly salient issue at the political level - i.e. sufficient for political leadership to want to make such changes/spend time on it. My impression is that IRCC 'staff' have some ingrained skepticism/opposition to the concept. Repeat, this is only an impression based on very little 'data' and so may not be much more than speculation on my part - and it also means I have no firm idea on what such opposition may be based.

My point above re: citizenship/PR status contexts is a bit in the weeds and not directly relevant, only that it would be / could be possible to have slightly different treatment (and there are some details in legislation/processing that perhaps would need to be addressed, i.e. it's not necessarily a simple legislative tweak).

That said: the proper route to address is through legislation and eg political representatives.

 

[dpenabill]

Bookending this topic -- Mostly for emphasis . . . and some clarification . . . at the risk of belaboring the point . . . mostly, however, to make it absolutely clear there is NO credit toward either the PR Residency Obligation or the grant citizenship physical presence requirement for time abroad in the employ of an International Organization.

Also, to amply put to rest the idea that such employment might facilitate a backdoor path to citizenship (per subsection 5(4) in the Citizenship Act).

This goes LONG. REALLY LONG. It gets weedy. It is based on many hours of research specifically into multiple aspects of this subject (acknowledging a bit of OCD).

. . . no one should rely on this to get Citizenship, but if anyone is in it already, they can pick the previous cases to argue theirs at the FC, if they win, then the chance of getting a positive decision is higher.

Perhaps the odds are better, "higher," but this in the range of buying a second lottery ticket (doubling the probability of winning, for-what-that's-worth). It's a bit akin to recognizing one can get closer to touching the moon by taking an elevator to the top floor in a high-rise building (or, depending on the time of day, farther from the moon); spoiler alert: the moon will still be out of reach.

And I know I am being redundant, at the risk of being obnoxiously repetitive, but it appears to me that the greater risk, a potentially harmful risk, is to misunderstand the outcome of a decision like that in the Halepota case, to fail to recognize it is NOT about her getting credit toward meeting the citizenship residency requirement. Not at all.

Here's the bottom-line: just like everyone else, a PR who has been in the employ of an International Organization should NOT apply for a grant of citizenship UNLESS, and NOT UNTIL, the PR fully meets the actual physical presence and other requirements, as prescribed in subsections 5(1) through 5(1.3) of the Citizenship Act. There is NO credit for time abroad based on being in the employ of an International Organization. If a PR mistakenly applied for citizenship prematurely, and after applying realizes they are short of meeting the presence requirement, even by a very small margin, there is NO point in pursuing the application further EVEN IF the PR's time outside Canada was in the employ of an International Organization; such a person will be best served by withdrawing and re-applying if and when they otherwise meet the requirements.

For anyone who gets it, who understands that bottom-line, SKIP this and the next three posts.

Otherwise, at the risk of belaboring the point, if only to minimize a risk that references to the Halepota case might seed false hope . . . here is Part I in . . . the Much Longer Explanation . . . quoting here mostly as a point of departure . . .

To clarify: I believe there is little likelihood of a 'judicial' resolution that would resolve the issue from the perspective of employees of international organisations. In other words, it would require changes to the relative legislation - and hence political interest and will.

I am not clear what "issue from the perspective of employees of international organisations" it is that you are referring to here.

In contrast, however, UNLESS the time abroad otherwise qualifies for credit, it is very clear that PRs abroad in the employ of an International Organization will NOT GET CREDIT for that time, NOT toward meeting the PR Residency Obligation, and NOT toward meeting the physical presence requirement for a grant of citizenship.

In particular, employment abroad with an International Organization does NOT fall within the scope of employment referenced in subsections 5(1.01) or 5(1.02), which allow credit for individuals outside Canada attendant employment in or with "the federal public administration or the public service of a province, otherwise than as a locally engaged person."

There is nothing whatsoever suggesting otherwise. NO basis for a court to rule otherwise. And, to be clear, the Halepota decision does NOT offer any basis to argue otherwise, NOT even in the ballpark let alone close. Halepota was NOT given credit toward meeting the residency requirement for a grant of citizenship.

The Halepota decision (should link) is explicitly about the Minister's discretion under subsection 5(4) in the Citizenship Act (should link), which provides a legal ground for the Minister to "grant citizenship to any person to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada." Justice Grammond's conclusions are based on Halepota's LENGTHY career with the UNHCR . . . nearly a QUARTER CENTURY . . . providing what the IRCC decision-maker described as "commendable" and "valuable services" aligned with "Canada's humanitarian assistance mandate," work which Justice Grammond described to be of "exceptional value."

It warrants adding, apart from the flaws in Justice Grammond's reasoning (that is, assuming his decision to be well-founded, despite it being otherwise), not only is there nothing, nothing whatsoever, to suggest that time abroad while employed by an International Organization will qualify for credit toward meeting the grant citizenship presence requirement, several other Federal Court decisions explicitly state that meeting the citizenship residency requirement cannot be waived on the basis of subsection 5(4) in the Citizenship Act, NOT for hardship, and NOT as a reward for services of an exceptional value to Canada (these are all decisions for applications made prior to the change from a residency requirement to a physical presence requirement, so these decisions refer to "residency" not physical presence). That is, a grant of citizenship based on subsection 5(4) is a separate ground for granting citizenship, not a basis for closing the gap when an applicant falls short of meeting the 5(1) eligibility requirements, no matter how commendable or otherwise worthy the applicant is.

Otherwise, even if Halepota was eventually granted citizenship, the Halepota decision is at best an outlier, but more realistically simply a one-off, an isolated instance, an anomaly. And, it is NOT a legal precedent.

(Note: Technically no Federal Court decision in regards to citizenship is a precedent, as they are binding only as to the parties and matters specifically addressed in that specific case. While many decisions are nonetheless cited as arguably analogous support for this or that proposition, that noted, the Halepota decision does not even offer much if any such arguably analogous support -- explaining the latter gets complicated, weedy so-to-say, but for this decision in particular it should be noted there are some rather blatant flaws in Justice Grammond's reasoning which further weaken any influence the decision might possibly have in any other case).​

Again, this is specifically about the availability of a grant of citizenship based on subsection 5(4) in the Citizenship Act, which was the particular basis for Justice Grammond allowing the appeal in Halepota and sending the case back for RECONSIDERATION. Given Justice Grammond's decision, one might ask the question:

Does the Halepota case signal a separate, subsection 5(4) path to citizenship, for PRs employed abroad by International Organizations? ​

While technically it is an "opinion," and despite my usual effort to clearly separate opinion from objective information, I can confidently state, without reservation, the answer to this question is NO. Emphatically, no ( . . . with very RARE exceptions).

Which leads to PART II of the Long Explanation for why the Halepota decision does not offer a separate, subsection 5(4) path to citizenship, for PRs employed abroad by International Organizations.

 

[dpenabill]

PART II of the Long Explanation for why the Halepota decision does not offer a separate, subsection 5(4) path to citizenship, for PRs employed abroad by International Organizations.

Availability of Grant of Canadian citizenship based on subsection 5(4) in the Citizenship Act:

As noted, subsection 5(4) in the Citizenship Act provides a legal ground for the Minister to "grant citizenship to any person to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada."

So, as noted in the previous post, one might ask the question:

Does the Halepota case signal a separate, subsection 5(4) path to citizenship, for PRs employed abroad by International Organizations? ​

While technically it is an "opinion," and despite my usual effort to clearly separate opinion from objective information, I can confidently state, without reservation, the answer to this question is NO. Emphatically, no ( . . . with very RARE exceptions). While this is an "informed" opinion, based on some careful research, I am no expert. So I do not expect anyone to rely, so-to-say, on my say-so. This long explanation is an effort to show-the-work.

The "special cases" provision, subsection 5(4) in the Citizenship Act, is rarely applied at all, and even when applied that tends to be more about alleviating special cases of statelessness or of special and unusual hardship. It is uncommon even in such cases, and narrowly applied, exceptionally so. Also note, for example, the one and only case (an unreported decision) Justice Grammond cites as coming close to supporting his Halepota decision (as to a grant of citizenship as a reward for service), was actually decided on the basis of hardship, not a reward for services of exceptional value to Canada.

At a glance one might wonder why Justice Grammond did not cite the M.H. (Re), 1996 CanLII 11920 (FC), https://canlii.ca/t/4g95 case, which is perhaps the only other case that comes close to supporting Justice Grammond's reward-for-valuable-service decision in Halepota . . . a case in which the applicant applied for Canadian citizenship just 8 months after becoming a landed immigrant, not anywhere near close to meeting the then applicable residency requirement. But it was clearly an application based on 5(4) and focused on the applicant deserving reward for having performed services of an exceptional value to Canada. In that case Justice Mckeown stated:

The appellant has satisfied me that this is a case where he has performed services of an exceptional value to Canada within the meaning of subsection 5(4) as well as being a case of special and unusual hardship and I therefore recommend that the discretion of the Governor in Council under that subsection be exercised so as to direct the Minister to grant Canadian citizenship to the appellant. (Note, procedure now would be different due to subsequent changes in the law.)​

Nonetheless, demanding emphasis and to be clear, over the course of the last FOUR DECADES there are very few, very, very few examples, in which a "reward [for] services of an exceptional value to Canada" has been the basis for an actual grant of citizenship.

Representative examples:

-- An American ice dancer, Piper Gilles, back in 2013, granted citizenship in time for her to compete on behalf of Canada in the Olympic Winter Games in Sochi.​

-- An especially skilled Chinese-born table tennis player, Eugene Zhen Wang, in 2012, so he could compete on behalf of Canada at the summer games in London.​

-- Levente Mady, a top-ranked Romanian swimmer, back in the late 1970s, who went on to compete in the 1984 summer games on behalf of Canada.​

That said, Halepota is not the only Federal Court decision supporting the application of 5(4) to grant citizenship to, at least in significant part, "reward services of an exceptional value to Canada." I mentioned the M.H. case (from a quarter century ago). I mentioned Levente Mady (more than four decades ago). And there are a few others, very, very few others. If one includes decisions based on hardship, there was the Mitha decision (also more than FOUR decades ago) cited by Justice Grammond.

So, IF (and it is a rather prominent, contingent "if"), IF Halepota was eventually granted citizenship, and assuming that Justice Grammond's rationale is reasonably sound (it is NOT, but setting that aside for the moment) and worth advancing on behalf of another person with a prominent career with the United Nations, or some other comparable entity engaged in noble and important humanitarian work, there is no suggestion this has led to a grant of citizenship for more than a handful or so of individuals . . . over a period of FOUR DECADES . . . among six million or more applications for citizenship. Those are lottery odds, at best.

In contrast, in one of the most cited grant citizenship Federal Court decisions, Koo (Re), 1992 CanLII 2417 (FC), [1993] 1 FC 286, https://canlii.ca/t/4gqw , Justice Reed stated "The decision whether to make a recommendation under subsection 5(4) is so highly discretionary that the failure to make one should not be the subject of an appeal." Since, as I noted, FC decisions do not establish binding precedent, other FC Justices have nonetheless entertained 5(4) in the appeal, including Justice Grammond in Halepota, and Justice Mckeown in the M.H. case. To put things in perspective, however, Justice Reed's decision in Koo has been cited as influential in hundreds other cases, more than a few of which cite it specifically in support of denying relief on the basis of 5(4), whereas Halepota has never been cited by another judge in any formal, published decisions, and M.H. has been cited in just two Federal Court decisions, both with an outcome in the opposite direction (that would be Chen v. Canada, 2012 FC 874 https://canlii.ca/t/fs3f0 and Fan v. Canada, 2002 FCT 746 https://canlii.ca/t/k61 ).

I do not intend to revisit an extensive list of those cases in which the Federal Court has allowed 5(4) to be "the subject of an appeal," and thus to that extent contrary to the decision in Koo, but even among those that do, they nonetheless overwhelmingly reach a conclusion contrary to the outcome in Halepota and the M.H. case. For a sample of how, almost casually, the Federal Courts have typically addressed but then brushed off 5(4) arguments, in addition to Chen and Fan, cited above, see

-- Alsayegh v. Canada (Citizenship and Immigration), 2014 FC 156 https://canlii.ca/t/g373n​

-- Xue v. Canada (Immigration, Refugees and Citizenship), 2017 FC 871 https://canlii.ca/t/h6lp4​

-- Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC 719 https://canlii.ca/t/1kx0w​

-- Zhang v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16611 (FC), https://canlii.ca/t/427n​

None of those cases, which are but a small sample, and few of the many others similarly brushing off 5(4) claims, involve applicants who have a history of service to humanitarian or Canadian interests anywhere near approaching that of Bushra Halepota. Which in significant part is kind of the point. Illustrating the extent to which the Halepota decision is essentially a one-off, based on her special case. Not many bring to the table DECADES of "commendable" dedication to work in providing services of exceptional value, in a lengthy career devoted to humanitarian interests.

But even for applicants with backgrounds which, as this or that jurist has described it, warrant consideration as to "whether it would be appropriate to grant citizenship to the appellant as a reward for services of an exceptional value to Canada," the appeal is typically denied . . . even where the case for an exercise of discretion is strong enough for the judge to make an informal recommendation to the Minister, such as in the Lee (Re), 1997 CanLII 16799 (FC), https://canlii.ca/t/4f6w decision (following and applying Koo).

All of the above is intended to illustrate and demonstrate that even if the Halepota decision offers, as some might think, an "argument" supporting a grant of citizenship for someone who does not otherwise meet the requirements under 5(1), based on service with a humanitarian organization, it is an argument lacking any measurable prospect of success except, perhaps, in the most unusual, special circumstances. Even years of employment for an International Organization is highly unlikely to come close.

That said, as I have occasionally alluded above, the Halepota decision itself is deeply flawed, essentially rendering it of little or no accord (except as to Halepota personally), undermining whatever analogous or precedential value it might have had otherwise. This too is "opinion," and subject to the caveat that the outcome of a case is sometimes referenced as supporting an argument for a similar outcome even when the reasoning underlying the cited, previous outcome, is flawed. But recognizing that not all opinions are created equal, and that in particular it is worth considering the reasoning underlying some opinions, I will address the scope, substance, and merits of Justice Grammond's Halepota decision in the following post.

 

[dpenabill]

PART III, the Conclusion of this Long Explanation for why the Halepota decision does not offer a path to citizenship for PRs employed abroad by International Organizations.

The Halepota decision itself has limited scope:

In some respects, and perhaps this is what @Oxygen25 was in part suggesting, since Justice Grammond's decision (see https://canlii.ca/t/hwbbq ) could be interpreted to say a "commendable" career with the UNHCR warrants consideration, on the merits, as to whether the applicant deserves a grant of citizenship pursuant to 5(4), other applicants might "argue" their employment with an International Organization likewise should weigh in favour of a 5(4) grant of citizenship. However, the there-should-be-a-similar-outcome argument is inherently weak (there are always differences in the facts), and generally only as influential as the underlying merits support. This is especially so here, where the outcome was specifically premised on the extent of Ms. Halepota's personal, special qualifications. The "outcome" in this case is not so much (if at all) about being employed by the International Organization, the UNHCR, but rather very much focused on this individual's especially commendable, exceptional career of dedicated service for DECADES.

The previous post also addressed this aspect of 5(4) cases, the extent to which these are RARE, a highly unusual exception based on compelling, in-effect, she-deserves-citizenship facts. In particular, qualifying for a grant of citizenship under 5(4) is NOT ENOUGH. The Minister must be satisfied the applicant deserves to be rewarded. For context it helps to consider, again, Justice Reed's observation in Koo (1 FC 286 https://canlii.ca/t/4gqw ), where he stated "The decision whether to make a recommendation under subsection 5(4) is so highly discretionary that the failure to make one should not be the subject of an appeal," an observation cited as more or less persuasive in numerous FC decisions (further noting that decision has, overall, been cited as persuasive in literally HUNDREDS of cases).

J. Grammond's decision does not elaborate regarding just what it was about Ms. Halepota's decades long, commendable and noble service in senior positions with the UNHCR, warranting the grant of citizenship pursuant to 5(4). All we know from reading the decision are laudatory generalizations. It seems likely there were very good reasons for deciding in her favour. Indeed, that is my guess. That apart from the logic of J. Grammond's reasoning (which to my view is flawed), my sense is the facts of the case were compelling, and J. Grammond was persuaded Ms. Halepota herself, she in particular, deserved extra special consideration for a grant of citizenship.

That is so fact specific to Ms. Halepota's merits it offers virtually NO support for arguing a similar outcome in another case. The scope of the decision is clearly limited to the particular factual circumstances presented and NOT a suggestion, let alone an endorsement, supporting an argument that individuals who have been employed by International Organizations should be granted citizenship without meeting the 5(1) requirements. It would be a mistake to read the decision otherwise.


IRCC's Approach to Such Cases:

Notwithstanding J. Grammond's conclusions about the underlying decision by IRCC, the agency's approach is well illuminated. IRCC considered Ms. Halepota's DECADES of exceptional service, including the specific facts of that service warranting accolades like "commendable" and "noble," and summarily declined to recommend the Minister grant Ms. Halepota citizenship based on 5(4). The FC decision compels IRCC to reconsider Ms. Halepota's case on its specific merits. There is no suggestion, let alone directive, that IRCC give any special consideration to a history of employment with the UNHCR, let alone other International Organizations.

Apart from how IRCC subsequently proceeded to handle Ms. Halepota's case, itself, it is safe to say the decision is not likely to result in any appreciable change in IRCC's approach to deciding such cases . . . even if IRCC is more conscientious about referencing conclusions based on the individual's facts, going forward, it is rather unlikely IRCC has relaxed or expanded its approach in deciding these cases.

This is obviously an "opinion," but there is no sign of any significant variance from how the government has approached this for over FORTY YEARS. There are procedural changes, given changes in law pursuant to the SCCA adopted in 2014, regarding which it might be worth noting that until August 1, 2014, before denying citizenship a Citizenship Judge was required to consider, for EVERY applicant, whether to make a 5(4) recommendation. There is no such directive in the current law, as to CJs or Citizenship Officers. If anything, procedurally the changes in law have made the application of 5(4) LESS likely, even though it was so RARE before it is hard to quantify it being less available.


Some Observations Regarding the Merits of Justice Grammond's Decision in the Halepota case:

To my view, Justice Grammond's decision in Halepota https://canlii.ca/t/hwbbq itself is flawed and its efficacy if not validity is questionable. I do not assert this lightly. Moreover, generally I am reluctant to tread into such issues, recognizing that of course a Federal Court justice is far, far more informed and experienced than I am, and most likely, significantly more capable than I am. Much deference to the judgment of a FC Justice is almost always warranted, it not being my place to contradict anyone with such authority. Not ordinarily anyway.

I am making an exception here. Explaining this aspect is especially weedy. So I will not attempt to address all the flaws I see in the decision.

But a pivotal aspect of the decision, which appears to be rather egregiously flawed, is in regards to the standard of review Justice Grammond employed (to my view, improperly employed): reasonableness.

Yes, much of this is over-my-head, but not so far over my head I cannot see what Justice Grammond gets wrong.

-- Application of Reasonableness Standard --​

Justice Grammond ruled the IRCC decision, that Ms. Halepota's UNHCR work did not "constitute services of an exceptional value to Canada," was "unreasonable." He appropriately NAMED the applicable standard, the "standard of reasonableness," but totally ignored the nature and manner in which that standard is applied. Despite his cursory citation of one of the key Supreme Court decisions adopting, imposing, and describing the standard of reasonableness, the Newfoundland Nurses’ case, 2011 SCC 62, see https://canlii.ca/t/fpbh9 (the other, which J. Grammond does not cite nor, it should be noted, follow, is the oft cited -- more than ten thousand times -- Dunsmuir decision, see https://canlii.ca/t/1vxsm ), and his reference to another important Supreme Court case addressing the reasonableness standard, Agraira v. Canada, 2013 SCC 36 https://canlii.ca/t/fz8c4 . . . despite referring to these seminal sources regarding the standard for reviewing agency decision making . . . J. Grammond goes on to essentially conduct a narrow "adequacy" of reasons analysis as a stand-alone basis for quashing the decision, blatantly contrary to what Dunsmuir, Newfoundland Nurses, and Agraira dictate.

I acknowledge this issue, standard of review, is largely well over-my-head, especially in regards to unraveling detailed elements in particular, oft times complex, agency decisions. But there is no doubt that all three of these seminal cases definitively mandate that the reasonableness review is "deferential" to the administrative body's decision-making and, importantly, favours deference to any decision that "falls within the range of acceptable outcomes that are defensible in respect of the facts and law," and is explicitly NOT limited to or bound by a narrow adequacy of reasons analysis. ALL three of these Supreme Court decisions dictate this. Yet, J. Grammond focuses almost solely on the adequacy of the reasons for the decision under review and makes NO mention of the deference owed the IRCC and does NOT engage in any discussion so much as suggesting that IRCC's decision failed to "fall within the range of acceptable outcomes that are defensible in respect of the facts and the law," which is a key element in applying the reasonableness standard.

Anyway, again, the bottom-line: just like everyone else, a PR who has been in the employ of an International Organization should NOT apply for a grant of citizenship UNLESS, and NOT UNTIL, the PR fully meets the actual physical presence and other requirements, as prescribed in subsections 5(1) through 5(1.3) of the Citizenship Act. There is NO credit for time abroad based on being in the employ of an International Organization. If a PR mistakenly applied for citizenship prematurely, and after applying realizes they are short of meeting the presence requirement, even by a very small margin, there is NO point in pursuing the application further EVEN IF the PR's time outside Canada was in the employ of an International Organization; such a person will be best served by withdrawing and re-applying if and when they otherwise meet the requirements.

 

[armoured]

To clarify: I believe there is little likelihood of a 'judicial' resolution that would resolve the issue from the perspective of employees of international organisations. In other words, it would require changes to the relative legislation - and hence political interest and will.

I am not clear what "issue from the perspective of employees of international organisations" it is that you are referring to here.

In contrast, however, UNLESS the time abroad otherwise qualifies for credit, it is very clear that PRs abroad in the employ of an International Organization will NOT GET CREDIT for that time, NOT toward meeting the PR Residency Obligation, and NOT toward meeting the physical presence requirement for a grant of citizenship.

I do not disagree with any part of your analysis. There is no judicial decision that I see that's going to change the situation.

Some might not consider this an issue at all, nor believe that any distinct treatment for employees of international organisations (or the spouses and children of such employees) is needed or justified in any way shape or form. That's fine, that's an opinion. (I won't bother at this point going into why Canada considers employment with international orgs to be a 'good thing' for Canada and actually devotes considerable effort to ensure Canadians are employed by international orgs, but I'm going to treat it as a given - it is a fact. Suffice to say, Canadian policy and law in some specific areas sees and treats employment with international organisations as distinct from just working for some random entity abroad. And a side note that there are already in Canadian law specific definitions of 'international organisations of which Canada is a member, so there's no issue in defining what's at stake.).

To the extent it is an issue, I can put it by way of comparison: some countries (many?), notably the USA, have provisions in portions of citizenship and/or residency law that recognise time in employment with international organisations on par with service in the employ of the US government or military. So, for example, a US citizen working with the United Nations in (say) Somalia will be able to get status (citizenship) for his/her spouse fairly quickly. A Canadian citizen with eg 25 years of service working abroad with a spouse can help his/her spouse get a TRV (even if that Canadian has no other 'home') - or PR status but not maintain the RO obligation, the IO is not treated as a Canadian company. A Canadian citizen by descent cannot obtain citizenship for children born abroad; the US citizen in similar circumstances will have the time served with an IO 'count' for the time resident in the USA required to meet the residency test.

Now, US citizenship and residence law and regulation is sufficiently different from the Canadian immigration framework and relevant legislation that simply "lifting" these provisions may not be feasible (or desirable). Some provisions like passing on citizenship by descent and the provisions to reside six years beyond the age of 18 (? something like that) have no equivalent in Canadian law.

But it would not be impossible to craft such changes that would incorporate the basic concept: that employment at international organisations (of which Canada is a member) be treated - for immigration and citizenship purposes - the same as employment with a Canadian government entity abroad, or, alternatively, to deem that employment with such organisations abroad be treated as employment with Canadian entities (such as businesses) abroad. Or some other legislative solution, perhaps.

That's all I was referring to (without attempting to specify exactly which route should be taken): that for such policy to be effective, it would require legislative changes. (Actually some could possibly be effected by orders-in-council, but for the purposes here, let's just consider that legislative). And the 'judicial route' (achieving something comparable by legal challenges of various kinds) is not feasible under current Canadian legislation and practice, as you've laid out. I'm also not arguing here that any changes should apply to or address all such PR / citizenship issues that could arise (i.e. no-one should expect that it would make all happy or address all such situations).

Again, I'm NOT attempting to nor do I want to argue about the desirability of such changes. I know some will not agree at all, not care, or think that "they should just [move to Canada, suck it up, tough for them, etc.]" That's why I wrote the issue is "from the perspective of employees of international organisations" (and their immediate families). And if not clear, I'm referring only to Canadians (citizens or PRs) that are employed with IOs abroad (no implications for employees of IOs that happen to be based in Canada - that already exists in law - nor for such employees elsewhere that have no Canadian nexus such as PR or citizenship/family)

 

[armoured]

To clarify here, I don't wish to debate the merits of making such changes - primarily was just outlining that there is no 'judicial' resolution that I can see, and that there are (by comparison with other countries) differences that are to the disadvantage of Canadians (broader sense of that term) serving in such IOs.

But to the extent I will explain the situation and why it's different than other 'work abroad' scenarios, it's that individuals working for international organisations outside their home country are not considered residents of the country in which they work (more akin to eg foreign service postings than to normal work contracts). That creates a fair number of peculiarities and conflicts between citizenship/nationality/residency laws of various countries (and is one reason why some countries have specific legislation/regulation addressing such cases).

 

[Oxygen25]

Quite interesting that Canadians and PRs working in prescribed international organizations don’t get taxed on income earned from the institutions. I know both are different and completely unrelated, but when it becomes frequent (re: PRs that work with the World Bank and UN continue to apply for citizenship without meeting the residency requirements), then they may decide to amend the act.

I guess it was same for the tax bit.

 

[dpenabill]

Quite interesting that Canadians and PRs working in prescribed international organizations don’t get taxed. I know both are different and completely unrelated, but when it becomes frequent (re: PRs that work with the World Bank and UN continue to apply for citizenship without meeting the residency requirements), then they may decide to amend the act.

It is NOT across-the-board true that Canadians (which includes BOTH citizens and PRs) working in prescribed international organizations don't get taxed (by Canada). What income gets taxed, and what income is not taxed, and what the tax actually is, and otherwise what exemptions, credits, and deductions apply, is very specific to the individual and source of income. For example, any Canadian with Canadian source income is subject to being taxed on that income (subject to otherwise applicable credits, deductions, and so on) EVEN if they are employed full time with the United Nations and can "claim a deduction" for the net income they received from the UN.

This is very much akin to similar "deductions" a Canadian working in the U.S. is entitled to pursuant to the tax treaty between Canada and the U.S. Note, in particular, the DEDUCTION for income from the UN is likewise pursuant to a tax treaty.

How Canada taxes individuals is entirely separate from immigration policies. Remember, immigration status does NOT have any direct impact on how Canadian taxation rules apply to the individual. Foreign Nationals living in Canada are subject to the same rules governing taxation as Canadians (which, again, includes both citizens and PRs) residing in Canada.

As for "when it becomes frequent [that] PRs that work with the World Bank and UN continue to apply for citizenship without meeting the residency requirements" that is NOT at all likely to trigger amendments to either the Citizenship Act or IRPA.

First, and foremost, it is not at all likely that such applications will become frequent, since there is NO POINT making such an application, since there is ZERO basis for anticipating a grant of citizenship UNLESS they otherwise meet the requirements for a grant of citizenship, as prescribed in subsections 5(1) to 5(3) in the Citizenship Act. And otherwise, applications are currently being summarily returned, and not even processed, unless the application establishes on its face the fact the applicant has met the presence requirements (it has not been a "residency" requirement since June 2015).

What appears to be the underlying premise here is precisely why I went to such great lengths to document THERE IS NO PATH TO CITIZENSHIP for PRs who do not meet the requirements specified in subsections 5(1) to 5(3) in the Citizenship Act, including the prescribed actual physical presence requirement. And to be clear, there is NO credit toward the presence requirement for time abroad employed by an International Organization.

I am not sure what motivates discussion about potential legislation regarding this. There is no significant indication, not a hint, of that on the horizon.

 

[armoured]

I am not sure what motivates discussion about potential legislation regarding this. There is no significant indication, not a hint, of that on the horizon.

I guess the answer to that is that I am the one who "motivated discussion" about potential legislation.

As I tried to make clear, the point was that there is no basis in law right now and hence judicial 'solutions' will not resolve any perceived issues. Meaning that realistically the only path is legislation specifically to address this - and that this is extremely unlikely and (I agree) no indication that this is on the horizon. And even more than not on the horizon, not an issue that has much if any political salience as an issue that perhaps impacts a few thousand people a year, probably less.

So the conclusion is simple: anyone in this situation should emphatically not make plans based on any specific changes making things 'easier.'

Nonetheless, for those interested, the proper route is to take the 'normal political steps' (write to one's MP, the ministers responsible, etc). I personally think there are aspects of how service in international organisations intersects with Canadian citizenship and immigration law and administration that are inconsistent with other aspects of Canadian policy (not law per se) and in some cases are problematic and even (in a much smaller subset of cases) unjust. But this is a rather weedy subject, not politically salient, very low 'popularity' from any larger-public perspective, and I have no expectation that government will make changes to address.

But for the relevance to this particular forum - practical impact on residency obligations for individuals - the bottom line is that time abroad serving with an IO is time abroad, and no recognition specific to IOs.

 

[dpenabill]

Nonetheless . . .

I have not considered what benefits or rewards Canada *should* (in the equitable sense) afford Canadians employed by International Organizations that are engaged in efforts directly or indirectly of benefit to Canada, including especially worldwide humanitarian enterprises. I suspect that is indeed a big subject with lots of complicated tangents. I am not sufficiently informed to have an opinion regarding whether or not a citizenship-grant-benefit, or at least a RO-credit, is something Parliament *should* consider, allowing there are, of course, other ways to reward commendable services commensurate with Canada's role in the world. But I can say there appears to be no hint that Parliament is considering this, or is at all likely to the foreseeable future.

The fact that a small number would be impacted cuts two ways. While it reduces the profile of the issue, perhaps making it less compelling, it also reduces the potential negatives. It is not like it would open the floodgates or impose a logistical nightmare. (As I understand it, combined the World Bank and United Nations, the particular International Organizations referenced above for example, employ fewer than 50,000 people in total . . . among whom I would expect Canadians to be a fairly small percentage, with no idea how many of those Canadians are Canadian citizens compared to the number who are PRs, and apart from considering whether their employment with the organization is "as a locally engaged person." The net number of PRs potentially affected, one way or the other, guessing some, seems likely to be low if not very low, and probably in a range for which special accommodations can be made, to the extent personally warranted.) But I suspect the reason why this is not on the legislative radar is far more about Canada's approach to citizenship policy generally, which does not give much weight to granting citizenship as a reward, as a benefit . . . except to the extent an element of reciprocity is involved . . . but is largely oriented specifically to in-Canada-ties.

But given the subject of this thread, and what I perceive to have been an inopportune citation of the Halepota decision, especially considered in conjunction with the suggestion that decision may constitute an "update" about potential credit toward either the PR Residency Obligation (nope), or the physical presence requirements for a grant of citizenship (nope), my focus is fixed on minimizing the risk the discussion might seed false expectations. I have seen where such things have gone in the past. Not all injustices are inflicted by government.

 

[armoured]

I have not considered what benefits or rewards Canada *should* (in the equitable sense) afford Canadians employed by International Organizations
...
whether or not a citizenship-grant-benefit, or at least a RO-credit, is something Parliament *should* consider
...
But I can say there appears to be no hint that Parliament is considering this, or is at all likely to the foreseeable future.

Agree - and personally I think the citizenship-grant route is not the right way to even think about it, that part of statute has an entirely different purpose (as you've shown).

On the equitable side, I'd just note that service in such organisations - due to their unique status as subjects of international not national law - can introduce very odd and problematic situations. Anecdotally, I know of a case (not related to Canada) where such an employee had effectively a stateless child from birth, involving three countries and the interaction between each country's citizenship statutes. (Hypothetically I think it could happen to Canadian citizen-parents in different and very rare circumstances, e.g. if both were citizens by descent, but not certain.)

The fact that a small number would be impacted cuts two ways. While it reduces the profile of the issue, perhaps making it less compelling, it also reduces the potential negatives. It is not like it would open the floodgates or impose a logistical nightmare.

This is a good point, it really is not a large number. Some of these are technical issues that could be (at least partially) resolved through modest changes to legislation. (Emphasizing however that there are different issues wrapped up in the discussion - eg PR status, citizenship acquisition, citizenship of children, residency obligation, etc; it's not a given that 'fixes' would address all such issues (from the perspective of such employees), as 'government' can have its own opinion. (I should note that although I am interested in the subject, I have no personal direct interests)

But given the subject of this thread, ... my focus is fixed on minimizing the risk the discussion might seed false expectations.

This is absolutely the right focus. To the extent I've distracted anyone from that, mea culpa.

 

[Oxygen25]

It is NOT across-the-board true that Canadians (which includes BOTH citizens and PRs) working in prescribed international organizations don't get taxed (by Canada). What income gets taxed, and what income is not taxed, and what the tax actually is, and otherwise what exemptions, credits, and deductions apply, is very specific to the individual and source of income. For example, any Canadian with Canadian source income is subject to being taxed on that income (subject to otherwise applicable credits, deductions, and so on) EVEN if they are employed full time with the United Nations and can "claim a deduction" for the net income they received from the UN.

This is very much akin to similar "deductions" a Canadian working in the U.S. is entitled to pursuant to the tax treaty between Canada and the U.S. Note, in particular, the DEDUCTION for income from the UN is likewise pursuant to a tax treaty.

How Canada taxes individuals is entirely separate from immigration policies. Remember, immigration status does NOT have any direct impact on how Canadian taxation rules apply to the individual. Foreign Nationals living in Canada are subject to the same rules governing taxation as Canadians (which, again, includes both citizens and PRs) residing in Canada.

As for "when it becomes frequent [that] PRs that work with the World Bank and UN continue to apply for citizenship without meeting the residency requirements" that is NOT at all likely to trigger amendments to either the Citizenship Act or IRPA.

First, and foremost, it is not at all likely that such applications will become frequent, since there is NO POINT making such an application, since there is ZERO basis for anticipating a grant of citizenship UNLESS they otherwise meet the requirements for a grant of citizenship, as prescribed in subsections 5(1) to 5(3) in the Citizenship Act. And otherwise, applications are currently being summarily returned, and not even processed, unless the application establishes on its face the fact the applicant has met the presence requirements (it has not been a "residency" requirement since June 2015).

What appears to be the underlying premise here is precisely why I went to such great lengths to document THERE IS NO PATH TO CITIZENSHIP for PRs who do not meet the requirements specified in subsections 5(1) to 5(3) in the Citizenship Act, including the prescribed actual physical presence requirement. And to be clear, there is NO credit toward the presence requirement for time abroad employed by an International Organization.

I am not sure what motivates discussion about potential legislation regarding this. There is no significant indication, not a hint, of that on the horizon.

True, I should have been specific (re: income earned from the institutions is not taxed in Canada). Also, I do completely agree with you that both issues are unrelated. My point though is, decades ago, I guess it was the same for taxes until an amendment happened.

 

[dpenabill]

On the equitable side . . .

In addition to the possibility of H&C relief in regards to the application and enforcement of the PR Residency Obligation, in regards to citizenship there are collateral issues, including the application of 5(4) in the Citizenship Act based on alleviating statelessness or hardship (which are grounds that have supported grants of citizenship far more often than to reward services of exceptional value), but also including the application of 5(3) in the Citizenship Act, which offer various ways of addressing a range of "special" cases, aimed at facilitating more equitable outcomes. It should also be noted that some of the "special" situations addressed by 5(4) in the past, were prior to extensive tinkering with certain details in the Citizenship Act, in order to address instances of injustice (provisions related to adopted persons, for example, needed to be revised multiple times to minimize cracks-in-the-system, so to say, noting there are some much older cases in which 5(4) was employed, before those statutory amendments, to avoid a harsh outcome in this regard).

I have avoided addressing those tangents much here, in this topic. Foremost, that is because they are not about being employed by an International Organization. To the extent the situations involved persons employed by International Organizations, that employment was largely incidental and not a significant factor, in itself, let alone the basis for relief. And additionally, other than the H&C RO issue, they are otherwise about obtaining Canadian citizenship, discussed at length in a different conference in this forum, with minimal (no more than incidental) relationship to the subject of this topic. Moreover, as already noted with emphasis, it seemed important to maintain a focus that would minimize the risk the discussion might seed false expectations.

Overall, collaterally, there is the observation that given the quite likely rather low number of individuals for whom "special case" consideration might possibly apply, those cases can, for the most part, be addressed and accommodated on an individual, special case basis. Which of course is inherently subject to highly discretionary decision-making, with a minimal role for judicial review. Which in turn makes some people nervous. The broader the discretion, the less oversight by reviewing authority, the greater the risk for not only inconsistent application and anomalous results, but for outright unreasonable or even abusive exercises of such discretion. The rules cannot close every avenue leading to potential injustice while at the same time leaving open paths sufficiently flexible to accommodate "special cases." Our civic authorities must be trusted to some extent to do what is right.

Of course in recent years our bellicose neighbour to the south has dramatically demonstrated just how risky that can be, no shortage of rather injudicious decision-makers placed in positions of power by a bone-spurs-would-be-king head of state. I apprehend the arc of history may yet reveal a dark road ahead in that realm, notwithstanding some cautious optimism based on the current administration there.

In any event, yeah, apart from the particulars of this topic, there is a lot to deal with on the equitable side. And it gets swampy.