sep28 said:
hi guys, new to this forum, (last post was over 2 years ago when i got my Canadian PR)
landed on June 28 2013.
been here since 23 April 2011.
basic residency requirement will be met on 28 June 2015.
Absent days 66. Took 2 vacations outside Canada 43 days and 23 days.
physical requirement will be met on 7 November 2015.
what will be my possibilities if the c-24 doesn't come into effect till 1 July 2015. shall i apply for citizenship with just the basic requirement on or after 28 June and before 1 July?
Any suggestions?
This is precisely the question dozens, if not hundreds of PRs are asking, either outloud or to themselves . . . and the number for whom this is a question worth asking, at least in similar terms, is probably in the thousands.
The Conventional Wisdom is to wait, even though that will mean waiting until September 2017 at the soonest (and only if you do not travel outside Canada any more in the meantime), that a basic residency application (I refer to these as "
shortfall applications," since the applicant falls short of having 1095 days of actual physical presence) has very, very low odds of succeeding and would entail RQ, long delays in processing, and ultimately a hearing with a Citizenship Judge, most of who are already only applying the strict actual physical presence test (and are thus almost sure to deny the application).
I concur in the Conventional Wisdom even though I disagree with those who say there is no chance at all for a
shortfall application. A recent Federal Court decision did refer to a case in which last year a Citizenship Judge applied the
Koo test to a
shortfall case (but still denied the application, as applicant was in Canada less than half the time). There was a recent anecdotal report (credibility unknown) in another forum by a
shortfall applicant (70 days short) who is scheduled for the oath soon.
But these are very isolated reports in contrast to the overwhelming indication that the APP test is being applied and shortfall applicants are being denied in all but the most extra-ordinary exceptions.
There is another topic here specifically discussing this, in which a lawyer's website is linked, the lawyer describing the circumstances in which an applicant may be qualified and obtain citizenship despite having less than 1095 days APP.
kingadil said:
Hi there;
I have found this link and i don't know if this is true or not as i still have about 50 days to apply but i am not sure if the new law of 4/6 would be implemented before that
"Did you know you can apply for citizenship with less than 1095 days physical presence?"
http://immigrationcanada.pro/canada-citizenship/know-can-apply-citizenship-less-1095-days-physical-presence/
What the lawyer says at that link is all correct. The language there is almost verbatim from case discussions about the
Koo criteria. This is still valid law.
What it leaves out, however, is as important as what it says. The big thing it leaves out is that the primary test for determining residency is the Actual Physical Presence (APP) test and that Citizenship Judges can apply the APP test regardless of how strong a case the applicant makes based on the
Koo criteria. It leaves out that it appears that most CJs are only applying the APP test, and that all CJs are usually if not nearly always applying the APP test, and that CIC appears to be zealously arguing that CJs only apply the APP test . . . so the chances for getting a CJ to apply the
Koo criteria are not at all good.
It leaves out how difficult these cases were to make even three or four years ago . . . and now that the vast majority of Citizenship Judges are Harper appointees, in addition to the overall trend to strictly apply the APP test, in addition to the fact that Parliament has spoken and said that the standard should be actual physical presence (the
SCCA), these days these cases have poor odds at best.
Regarding that: an applicant relying on credit for time in Canada prior to landing does not have a good case for applying the
Koo criteria in the first place. Such a case would not have been a strong case even before 2010 when the grant of citizenship to
shortfall applicants was more common. At the very, very least, such an applicant would have to convince the Citizenship Judge that his or her life was
centralized in Canada during a time he or she did not have status to live permanently in Canada. Temporary status really is not consistent with having established permanent residence in Canada. The intent may have been there. Legal status was not. My sense is that this factor alone would make a big difference in the
shortfall application failing.
(Note: for applications to be processed based on current law, time present in Canada prior to landing still counts toward basic residency and towards qualifying for citizenship, at the half day rate of credit, but this is in cases based on meeting the APP test . . . in contrast the
Koo type case is based on qualitative factors not adding up the number of days.)
In other words: just plain not worth even taking a shot at it.
In the meantime, we do not know when the revised requirements for grant citizenship will take effect. Could be today (literally, it really could still be today). Might not be until August. July 1st still seems the most likely, but some have even suggested that CIC needs more time and this could be delayed until next year.
We may get a much better idea in the next few days when the Governor in Council's most recent Order regarding coming into force dates for the
SCCA becomes public. (The Governor in Council made an Order recently fixing last Friday as the date certain important provisions in the
SCCA came into force, those being in regards to the grounds and procedure for revoking citizenship; we do not know that this Order addressed any other provisions, but I suspect it did, so it will be interesting to see the actual order itself.)
