AGAIN, MOST will want to SKIP this bureaucratic history tangent . . .
As noted in the previous post above, what the Harper government did, in effect, was merge two separate problems in the citizenship application process and make the huge MESS that almost crashed the system in 2012.
The first, and actually much lesser part of the MESS, was fraud, first the government's failure to effectively screen for or interdict citizenship fraud, and then the government's overreaction and draconian measures implemented once the nature and scope of the fraud problem became apparent.
BUT then there was the REAL, and MUCH LARGER PROBLEM, the REAL MESS, which was DECADES of inconsistent and sometimes incoherent decision-making derived from three very different and incompatible interpretations of what was required to meet the "residency requirement" to qualify for the Section 5(1) grant of citizenship. This went back to the 1980s and inconsistent decisions by different Federal Court justices. Some ruled that the way the Citizenship Act prescribed calculating days was, in effect, a physical presence requirement, requiring PRs to have been physically present IN Canada at least 1095 days within the FOUR years preceding the date of application. But other Federal Court justices ruled that all that was required was for the PR to be a resident in Canada for at least three years. There were two different approaches for this as well, which meant that in contested cases (those applications CIC did not refer to a CJ recommending approval, or the CJ did not accept the CIC recommendation, and which thus went into a residency hearing with a Citizenship Judge), the CJ could choose which of the three approaches, or "tests" for residency to apply.
The main difference, and the cause of much confusion, leading to all sorts of incongruous and often outright conflicting outcomes, was basically whether the Citizenship Judge applied a physical presence test or applied one of the residency tests.
Overall, my impression (I did not start following this stuff until around 2008) is that prior to Harper government, and perhaps for a few years into his early minority governments, CIC was essentially approaching applications using a residency test, not the actual physical presence test, but by 2007 or 2008 the Harper government was getting more strict. Between the time I began the process of actually immigrating in 2007 (I had been spending extended periods of time here for many years prior to that) and when I actually landed and became a PR (January 2009), citizenship timeline discussions in the forums went from concerns if it went longer than SIX MONTHS, to increasing discontent that for many it was as long as or longer than a YEAR . . . and by 2010 even that seemed FAST compared to how things were going.
In any event, again, the main difference, and the cause of much confusion, leading to all sorts of incongruous and often outright conflicting outcomes, was basically whether the Citizenship Judge applied a physical presence test or applied one of the residency tests. And I am not sure, but it appears that this got a lot worse around 2008 due to the Harper government more aggressively pushing the strict physical presence test.
If the CJ applied a physical presence test, the application was denied if the applicant fell short of 1095 days actual presence even if that was by just one day.
If the CJ applied a residency test, the applicant might be approved for the grant of citizenship even though he or she had been physically in Canada many, many days fewer than 1095.
Indeed, some of the cases which the Minister appealed (and in those days, appeals by the Minister were about as many as appeals by denied applicants), AND LOST (that is, cases in which the PR was approved for citizenship by a CJ but which the Minister appealed, and the Federal Court upheld the CJ's decision, requiring CIC to complete the grant of citizenship), involved applicants who had been HUNDREDS of days SHORT. I do not recall the precise numbers in the most extreme cases, but some involved individuals who had only been in Canada a few hundred days. I vaguely recall at least one case in which the applicant had been actually IN Canada no more than several months.
So there were cases, many of them, in which the applicant was denied citizenship even though he or she was physically present in Canada well over 1000 days, within the four relevant years, while many other applicants were granted citizenship even though they were outside Canada more than TWO of the relevant four years.
Since Federal Court decisions do NOT establish binding precedent, and there was NO appeal of the Federal Court decisions allowed, there was no resolution of the conflicting tests. (One of the other big changes implemented in 2015, maybe this one took effect in 2014, was the addition of provisions allowing for an appeal to the Federal Court of Appeal if there are "certified" questions . . . so for the last five years or so, there is a way to resolve conflicting decisions by different Federal Courts.)
And back then CIC had far fewer tools to verify an applicant's claims about travel history. Even by 2010, or so, CBSA client entry-into-Canada records were typically far shy of complete (while it was 9/11/2001 that triggered changes resulting in more thoroughly capturing client entry data, that took many years . . . prior to the fall of 2001 I crossed the border many dozens of times without showing any identification at all, not once over the course of many years, and even continued to do so often for several years after that . . . and this or that PoE, such as one on Wolfe Island, near Kingston, Ontario, for ferries from Cape Vincent in New York, did not routinely scan or otherwise capture a record for entering travelers).
It was a total mess. The safe approach, for those applying for citizenship, was to WAIT and apply ONLY after they met the actual physical presence test. But there was, nonetheless, a steady stream of applicants applying based on having established and maintained a residence in Canada for at least three years, even though they spent a lot of time abroad.
There was NO WAY to know which test would be applied until a Citizenship Judge decided which test would be applied. CJs did not have to explain why they were applying one test versus the other. The CJ did not even have to inform applicants during the hearing which test would be applied. They could simply decide which test to use. And there was nothing that required a CJ to consistently apply the same test . . . a CJ could apply the residency test to an immigrant from the UK and, for the very next case, say an immigrant from Pakistan, apply the strict actual physical presence test. All the case law required was that the CJ clearly articulate which test was used and how he or she decided the case applying that test.
INJUSTICE was, well, all too common.
Applicants relying on meeting a residency test without meeting the physical presence test were called "shortfall" applications. For whatever reason, the information about qualifying for citizenship published online by CIC only warned that such applications would have to be decided by a Citizenship Judge. But at the time ALL citizenship applications were decided by a CJ. All grants of citizenship had to be approved by a CJ. The caution did not clarify that shortfall applications would almost for sure be issued RQ and referred to a CJ residency hearing, let alone that CIC itself would argue to the CJ that the application should be denied because it did not meet the physical presence test.
That NOT knowing which test would apply was particularly problematic. Applicants going into a hearing with the CJ did not know, not even then, which standard or test would apply. Which was crazy. I often emphasize that Canada is a rule-of-law country, and to my view it is indeed, and high up compared to other countries which purport to be a rule-of-law country. While perfection is not expected, in this particular aspect, back then, Canada fell rather far short.
There was no shortage of injustice. In decision after decision, many Federal Court justices implored Parliament to fix the problem. This was a problem that persisted for over a QUARTER CENTURY but became especially problematic after the mid-2000s when, under the Harper government, CIC began the policy of referring almost all shortfall applications for a CJ residency hearing and recommending the CJ deny any applicant with a shortfall. So by 2008 to 2010, yes, yes indeed, citizenship application processing was a REAL MESS. . .
. . . and then CIC realized how badly it had dropped the ball in screening for fraud.
Finally, legislation introduced in early 2014, adopted in June of that year, and then not taking effect until June 2015, implemented the actual physical presence requirement.
[end bureaucratic history lesson 101, part two]
