There is no substantive disadvantage, let alone disqualification, arising from a decision denying citizenship compared to withdrawing an application for citizenship.
This close to the hearing, it is definitely worth going to the hearing and trying to persuade the CJ that a centralized mode of living in Canada test should be applied and that the applicant had indeed centralized his/her life in Canada. Better to have a lawyer, but probably too late to realistically get a competent lawyer for the hearing.
Take a lot of documentation to the hearing showing the extent to which Canada is where life has been centralized. Affidavits from family and friends could help.
Be prepared to go beyond answering the CJ's questions, but to affirmatively put forth evidence and argument about having fully settled in Canada, that Canada is and has been
home, that life has been centralized in Canada, and that citizenship should be granted.
As recent as last October at least some Citizenship Judges were still approving shortfall applicants. For example,
Akintomiwa Oladapo Ojo was
approved at a Citizenship Judge hearing last October despite being
590 days short. (CIC appealed and the appeal was granted, but largely for a technical reason related to the CJ's failure to make a specific finding as to the date Ojo first established an
in-fact residence in Canada; and indeed, even though Justice Mosley sent this back to CIC for reconsideration, Justice Mosley emphasized the decision against Ojo was not intended to express an opinion that citizenship should be denied.)
Moreover, CIC in particular, at the Federal Court hearing, did not contest the appropriateness of applying a qualitative test (
Koo) rather than the physical presence test.
Until June 10, 2015, less than three weeks ago, it was
NOT required to be physically present for 1095 days in order to be
eligible for citizenship.
Shortfall applications are far, far more common than many seem to think. CIC has never discouraged shortfall applicants. All CIC has ever said is that applicants with less than 1095 days actual presence will have to have a Citizenship Judge determine if they are qualified and that the process
could take longer . . . with no hint about what this really meant in terms of RQ, processing of a
residency case, and that "longer" really meant
YEARS more.
Note: I have long declined to so emphatically make these observations because, yes, the trend at CIC has indeed been to apply the strict presence test and prospects for shortfall applicants have long been so poor it was
NOT ADVISABLE to make a shortfall application.
I had hesitated to make these observations to avoid indirectly encouraging the making of the shortfall application. That is now history. A shortfall now (for applications being filed since June 10, 2015) is not eligible, and will be summarily rejected.
But many have made a shortfall application. At least hundreds, but probably many thousands of shortfall applications are in process with CIC. These are
eligible applicants. Whether or not they will succeed or be denied is very much an
unknown.
In some cases, yes, it would be easy to look at the circumstances and have a good idea that this or that case is almost certainly doomed. All those who applied with a shortfall and who also were relying on pre-landing credit, for example, I tend to think these cases have no chance at all (but I suspect there were a large number of such applications submitted just this year, to beat the
SCCA deadline). But many cases will depend on the particular facts and circumstances of the case, the pattern of absences, the reasons for absences, the certitude of the evidence showing a life centralized in Canada, and of course the actual number of days short . . . the more short, the more dismal the odds.
But with a hearing already scheduled: collect as much evidence as possible, find some discussions about the
Koo criteria and organize an argument around each of the six factors, and to to the hearing to make one's case, to be an advocate.
