Appears you understand already, but in case there are lingering doubts (for this particular individual, or many others in somewhat similar circumstances) . . . . .
spawnisalive said:
On residence calculator it says that "Only a Citizenship judge can determine if you meet the residence requirement with fewer than 1095 days of physical presence" ... my apologies for the ignorance or lack of knowledge in these matters but will the reason mentioned for absence not justify physical presence?
The short answer is simple and straight-forward:
Do not apply unless and until the applicant has been actually, physically present in Canada long enough to meet the residency requirement.
Currently that means being actually, physically present for 1095+ days within the four years preceding the date of application.
Overall, it does not appear this individual will be qualified until after the new law takes effect and thus not before well into 2017.
Regarding reasons for trip abroad:
Obviously, physical presence means being physically present. The reason for an absence does not change the fact that it is an absence.
Under the currently applicable law (explained more below), technically
residency can be calculated based on either
-- days actually physically present in Canada, or
-- qualitative criteria pursuant to which the reason for any absences may be considered in assessing whether or not the individual nonetheless was
resident in Canada during that time
Technically the latter is still legally available, but only at a CJ's discretion. The practical reality, however, is that the latter is probably not available except in very exceptional, unusual cases (if at all).
Thus, ultimately, leading back to the simple explanation: do not apply until the applicant has met the actual physical presence threshold, which is currently 1095 days.
Note regarding new law: We do not know for sure when it will come into force. As already noted, it is virtually certain to be in effect by March next year. But in the meantime it is quite likely, if not most likely, to be in effect
by July 1st this year, which would mean that a PR who does not qualify
before July 1st will have to meet the requirements of the new law.
So, assuming that this new law is in effect as of July 1st (we don't know for sure that it will be, but it is likely to be), a person who arrived in Canada on July 1st, 2012 will have to apply under the new law
even if that individual never left Canada at all since arriving in Canada.
Thus, for this individual who arrived on July 1st, 2012, the probability is that it will be July 2016, plus all days absent in the meantime, at the very soonest she can qualify and apply . . . thus, obviously, well into 2017.
Longer explanation:
Technically, currently, applicants meeting the
basic residency threshold (1095+ days since establishing residency in Canada) but short of meeting the actual physical presence (APP) test (1095+ days actually, physically present in Canada) are
eligible for the grant of citizenship, but a Citizenship Judge must determine whether or not such an individual is
qualified based on whether the individual met the
residency requirement (at least three years "resident" in Canada).
These are typically referred to as
shortfall cases, as in cases falling short of meeting the 1095 day APP test.
We do not know for sure to what extent
some shortfall cases are still being approved. Many of those following this, if not most, believe that virtually
NO shortfall cases are being approved these days.
We do know that nearly all (and probably it is all) shortfall cases are being issued RQ, and thus face long delays in processing. We are quite sure that most shortfall applicants are indeed being denied. It is obvious that, at best, if any shortfall applications are being approved, these are exceptional cases involving a minimal shortfall.
Even before this government implemented the stricter approach in assessing shortfall applications, for a long time there was an internal practice making it more difficult for short falls of more than 195 days . . . that is, those applying with fewer than 900 days of actual presence.
So even five years ago, when it appears there were more shortfall applications made and progressing through the process, apparently many were being granted citizenship and on some occasions the Federal Court was actually requiring CJs to consider the qualitative tests for residency,
this case, being more than 200 days short, would not be a good case for approval.
Some more technical observations:
To be qualified under the current law, the PR must have been
resident-in-Canada at least 1095 days (within the relevant four years).
There are at least three tests for assessing
residency.
The dominant test, now and for the last several years (to become the only test when the new law takes effect), is the
actual, physical presence test. This test counts only days actually spent in Canada, days physically present in Canada, as days resident in Canada. Reason for absence is totally irrelevant.
The other tests are
qualitative tests pursuant to which a person can be found, by the Citizenship Judge, to have been
resident-in-Canada all days the applicant maintained his or her residence in Canada. That is to say, absences are not discounted. For these tests, the reason for the absence is relevant. For these tests, for example, temporary absence to attend to an ill parent or the affairs of a recently deceased parent, would not be deducted, so long as the individual's life was centralized in Canada and he or she maintained their place of residence in Canada during the absence.
We have seen the latter sort of case disappearing for at least the last four years (trend probably began soon after Harper's Conservatives first formed the government). That is, CIC has been pushing an application of the strict physical presence test for years. It appears most if not nearly all CJs are applying the strict physical presence test. And in the last couple years or so we have seen numerous cases go against applicants at the Federal Court level based on shortfalls of less than 30 days, some just a few days short.
Given more than three decades of jurisprudence which allowed the application of a qualitative test, this government could not administratively absolutely close the door on shortfall applications altogether without an Act of Parliament. They have done that for future applications. For applications under the current law that door is not absolutely closed, but only the most exceptional cases have any real chance at all (if any have some chance at all).
In closing, though, again anyone who did not arrive in Canada until July 1, 2012 or later, the new law is probably going to govern their application. It absolutely only counts days actually physically present, and it increases the minimum threshold to 1460 (within six years).
