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Physical Presence Days: continuous requirement?

Discussion in 'Citizenship' started by Flandernss, Mar 5, 2019.

  1. Hello everyone,

    In regards to the 1095 physical presence requirement, these are to have occurred on the 5 years prior to the APPLICATION DATE

    (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/grant/residence/calculate-physical-presence.html).

    That is clear.

    However, I wonder if throughout the entire process the 1095 days in the last 5 years rule is (or can be) re-assessed. For example, will an official, on the day of the oath, look back in the 5 years prior to THE DATE OF OATH to be sure you still have 1095 days?

    I believe the entire process is based on the physical presence calculation made on the application date but am not entirely sure.

    This is important for people who, for example, travel frequently, had its process exceeding normal processing times or accepted a job contract outside Canada after the citizenship application.
     
  2. All calculations based on date of signing of your application - If you are at risk of loosing job opportunity due to non - Canadian passport you can request express service but decision is based on CIC discretion.

    Good Luck
     
  3. The relevant time period for some citizenship requirements is fixed as of the date the application is made, which is the date the application and presence calculation are signed (so long as the application is timely received by IRCC; it has not been "CIC" since 2015).

    The minimum actual physical presence in Canada requirement is one of these, the date the application is made (signed) fixes the five year "eligibility period" during which a total of 1095 days actual presence in Canada is required. This does not change no matter how long the application is in process.

    Staying in Canada after applying does NOT, cannot, add any days to this calculation.

    Spending time outside Canada after applying will NOT deduct any days from this calculation.

    BUT if your query is really about whether or not, and if so how, extensive travel outside Canada after applying might affect things, that is a much broader and more complicated issue than just the actual physical presence requirement and its calculation.

    It is also an issue which involves practical RISKS as well as potential requirements issues. The practical RISKS probably loom larger for most applicants who are abroad for extended periods of time after applying (for example, logistics related to getting notices and appearing for events on time, and such, loom particularly large). These have been addressed in numerous topics where leaving Canada after applying is discussed.

    The most significant, although not common, requirement-issue is probably PR Residency Obligation compliance. The citizenship applicant must, of course, continue to be in compliance with the PR RO right up to the day the oath is taken. Thus, for example, there have been cases in the past where the PR has been mostly abroad after applying, returning to Canada for test and interview, and then again for the oath, but upon arrival at the PoE to return to Canada to attend the PR's scheduled oath ceremony, is REPORTED for a breach of the PR RO, which automatically means the individual is PROHIBITED. NO oath. PR status itself LOST unless the Report is appealed and that appeal is won.

    THIS HAS NOT BEEN MUCH OF A PROBLEM LATELY. But given the somewhat recent increase in processing time lines, in conjunction with the extent to which PRs abroad have pursued citizenship given the changes which took effect in October 2017, it seems likely a significant number of applicants may be at RISK of remaining outside Canada long enough, after applying, to potentially be in breach of the RO, thus at risk for being Reported, and instead of becoming a citizen, losing their PR status.

    THIS AFFECTS ONLY A SMALL PERCENTAGE (which adds up, however, to a significant number of applicants), and is mostly limited to applicants who are living abroad after applying or who spend most of the time abroad after applying, AND even then, it depends on how much the PR was in Canada during the periods three and four years prior to the application.

    As long as the processing time is LESS than a year, this is NOT a potential problem since the maximum number of days absent in the preceding five years can only increase by 365 days (over the number of days absent in the five years preceding the date the application was made). That is: It is NOT arithmetically possible to breach the obligation to be in Canada 730 days within the preceding five years, if one year prior to that the individual was IN Canada 1095 days during five years preceding that day . . . again, at the most being absent the full year could result in a net loss of just 365 days, still leaving 730 days present in Canada.

    BUT as the processing timeline has gotten longer, and more than a few are now approaching a year and a half processing time line, for those spending most of the time abroad (after applying), the PR Residency Obligation calculation may again loom problematically. (The older cases I referenced, for example, largely occurred during the Harper years when processing times often exceeded TWO years, and for more than a few exceeded THREE years, many approaching and some going beyond four years.)



    ANOTHER REASON TO PAY ATTENTION TO THIS GOING FORWARD: SIGNS ARE THERE WILL BE A CHANGE IN GOVERNMENT WITH THIS YEAR'S FEDERAL ELECTION.

    Any applicant who is at risk for NOT reaching the oath before late in the year, AND who is living or working abroad (that is, spending most of their time abroad), would be prudent to exercise some caution in regard to how much they stay abroad. NOTE, a new government does not need to actually change the law for there to be a big impact on those within this somewhat small group of applicants.

    EXPLANATION:

    One of the key provisions in the law repealed by the Liberal government was the "intent to continue residing in Canada" requirement. Many, indeed most by a big margin, misunderstood the real meaning and import of that requirement that Harper's government added (and which, again, the Liberal government repealed). Its primary focus was aimed at the so-called "applying-on-the-way-to-the-airport" applicant. That provision gave the government grounds to deny any applicant who at any time after applying was perceived to be living outside Canada (one cannot intend to continue living in Canada unless one is actually living in Canada).

    This was part of the Harper government's overall effort to discourage those considered or perceived to be "seeking-a-passport-of-convenience."

    BUT long before the "intent to continue residing in Canada" requirement was added, CIC (as it was named prior to the name change in 2015) was screening applicants and more skeptically approaching those perceived to be "applying-on-the-way-to-the-airport" or "seeking-a-passport-of-convenience." There were many suggestions, to some extent circumstantially corroborated indications, that CIC may have been subjecting such applicants to additional screening that deliberately delayed processing long enough to test whether the applicant might breach the PR RO before reaching the oath stage.

    If for example there is a Conservative government taking office later in the year, there is a significant likelihood IRCC could return to similar policies and practices, such that applicants perceived to be "applying-on-the-way-to-the-airport" or "seeking-a-passport-of-convenience" face higher hurdles, longer timelines, and perhaps some overt obstacles for those spending long periods of time abroad deliberately making it difficult for them to reach the oath without running afoul of the PR RO.

    There are a LOT of IFs in this. Some big MAYBEs. Biggest MAYBE depends on who wins this year's Federal election. And even if it is the Conservatives, who knows, maybe the next Conservative government will not be so hostile toward globally-mobile immigrants as the Harper government was. BUT ANYONE APPLYING THIS YEAR, and is planning to be abroad extensively after applying, should NOT take for granted that current policies and practices will continue after the Federal election later in the year.
     
    Flandernss likes this.
  4. you can leave Canada after you submit your application, and come back for test and oath.
     
  5. That's not what the OP asked. The OP asked if the physical presence requirement is reassessed at oath.
     
  6. Great clarifications everyone.

    depenabil, you brought up the breach of the PR RO requirements (the 730 days): does anyone know where the 5 period for the PR RO lies?

    This is a similar question to that which initiated this thread but refers to PR and not citizenship.

    Unlike the 5 years period for citizenship (i.e., 1095 days in 5 years), which is clearly defined as "immediately before the date of his or her application [of citizenship]", the 5 years for PR RO (730 days in 5 years) seems, to me, unclearly determined.

    Should the PR be 730 days present in Canada (1). within every 5 periods since the acquisition of PR status, or (2). during the 5 years period validity of the PR card, or (3). at any moment, when looking back 5 years from whatever day, should the PR have been in 730 days in Canada?

    Some PR individuals let their PR cards expire and go years without renewing them (which is OK because this document serves them only as a sort of passport). As such, when they apply for a new PR card, which is valid for a period of 5 years, will likely be out of sync with a hypothetical continuum of successive 5 years period blocs occurring from the day the of acquisition of PR status.

    Here is a concrete scenario:

    Becomes PR in 2010. Renews his PR card in 2017.

    Then:

    (1) He has to have (or be able to have) 730 days in each of the 5 years periods: 2010-2015, 2015-2020, 2020-2025, etc.

    (2) He has to have (or be able to have) 730 days in each of the 5 years periods: 2010-2015, 2017-2022, 2022-2027, etc.

    (3) He has to have 730 days at all times when looking back 5 years.


    Here is an interesting scenario:

    Becomes PR on January 15th, 2010, after 730 days leave Canada on January 15th, 2012. Until when can he stay abroad?

    If (1): then January 14th, 2018 (ideally, he would do a quick return to require his first PR card renewal that is expiring on January 15th, 2015, but not that is not necessary as he could request a PRTD before returning).
    If (2): then January 15h 2015. Renew his PR card and go back abroad whenever he wants (but he can't remain abroad then for more than 1095 days).
    if (3): then January 15th, 2015. Renew his PR card and go back abroad after a second 730 days run in Canada before considering international travel again.
     
  7. PR residence requirement is also very clear:

     
  8. #8 dpenabill, Mar 8, 2019 at 4:02 PM
    Last edited: Mar 8, 2019
    PR card expiration date is NOT relevant when calculating compliance with the PR Residency Obligation. NOT RELEVANT.

    Actually the RO is clear. On any given day a PR needs to have been present in Canada at least 730 days within the preceding five years of that day. Simple. Simple arithmetic.

    Such as today: For someone who became a PR in 2010 or 2011 or 2013, as of today, March 8, 2019, the relevant five years for calculating RO compliance is March 8, 2014 to March 8, 2019.

    Tomorrow, for anyone who became a PR in 2009, 2010, 2012, or 2013 (you get the idea), the relevant five years for calculating RO compliance is March 9, 2014 to March 9, 2019.

    If any of these PRs arrive at a PoE on any given day in the future, say June 21, 2019, the relevant five years for calculating their compliance with the RO in their PoE examination (if referred to Secondary for an examination) is, you guessed it, June 21, 2014 to June 21, 2019.

    There is a slightly different calculation for a PR who has not yet reached the fifth year anniversary of the date of landing. For the new PR, until that fifth year anniversary of the day of landing, the relevant five year period is the five years between day of landing and the fifth year anniversary of landing.

    BUT there is NO practical possibility a QUALIFIED applicant for citizenship could encounter a RO compliance issue until AFTER the fifth year anniversary of landing, so the way the calculation is done in the first five years is NOT relevant to this discussion.

    Typically a PR will only be examined about RO compliance:

    -- upon arrival at a PoE when returning to Canada; relevant five years is based on that day

    -- when abroad and applying for a PR Travel Document; technically the relevant five years is based on the day PR TD application signed, BUT since the PR is abroad, days absent are still accumulating and PR can face another RO examination at the PoE, for which the relevant five years can be based on that day

    -- when applying for a new PR card; relevant five years is based on the day the application is signed, but here too if the PR goes abroad while that application is pending, if there is an interview later the RO can be calculated based on the date of the interview; moreover, if the PR goes abroad, here too compliance may be determined as of date of a PR TD application or date the PR arrives at a PoE

    -- whenever IRCC has reason to conduct a RO compliance examination; this can happen attendant an application to sponsor a family member, for example; it can happen in the course of processing a citizenship application (not likely unless the applicant is living or otherwise staying abroad for extended period of time, as I have described in my previous post) . . . past examples include applicant flagged for potential RO non-compliance upon arrival at the PoE, when returning to attend oath, and at oath event the oath was not administered but rather the applicant ended up in further processing including RQ

    To be clear, even if a PR has been issued a brand new PR card, valid for nearly five more years, the PR can be examined for RO compliance when arriving at a PoE or in any other situation triggering a RO compliance examination . . . and the relevant five years is again the five years preceding that day, the day of the examination.

    Example: PR landed in 2010. PR gets a new PR card issued January 2019. PR is abroad and is returning to attend an oath ceremony May 11, 2019, a positive decision made on his application for citizenship, and the PR arrives at the PoE May 6, 2019. Upon arrival at the PoE the relevant five years is May 6, 2014 to May 6, 2019 AND if the PR has been outside Canada more than 1095 days during this five year time period, the PR is in breach of the RO, and is at RISK (what actually happens can vary considerably) to be Reported (making the PR prohibited, so NO oath) or FLAGGED and then subject to further processing of the citizenship application rather than taking the oath.

    IN this example, if say the PR applied for citizenship October 23, 2017, already living abroad at the time but suddenly eligible for citizenship because the requirement was lowered to three years, and included time in Canada prior to becoming a PR. If this individual has continued to live abroad and only returned to Canada for short periods, such as to attend the test and PI Interview, depending on the particular days present he could NOW have been outside Canada more than 1095 days during the preceding five years. In BREACH of the RO. And if reported, then PROHIBITED from a grant of citizenship, EVEN IF IN THE MEANTIME THERE IS A DECISION MADE TO GRANT CITIZENSHIP.

    Again, what will actually happen can vary considerably. But once a PR is abroad 1096 days in the last five years, there is a real RISK of losing PR status.
     
    Flandernss likes this.
  9. Thank you very much for the input, y'all.

    From all you have said, I conclude the 3/5 rule is NOT re-assessed at the time of Oath.

    By the way, I found the piece of text that led me to create this thread:

    “The requirement for all citizenship applicants to maintain the citizenship application criteria, from the time of application to the time they take the Oath of Citizenship, now applies to all applications, including those received before June 11, 2015.” http://www.citizenshipsupport.ca/canadian-citizenship/canadian-citizenship-application-changes/
     
  10. DPENABIL,

    What would you say you meant when you wrote "(so long as the application is timely received by IRCC...)"?

    I ask because I read somewhere on the internet (most likely fake news) that if you apply (i.e. sign your application and Physical Presence calculator) for citizenship, you have to be in Canada the day the IRCC will actually RECEIVE your application otherwise it becomes invalid. Is this even true? Harper's government attacking the so-called "on-the-way-to-the-airport-applicant"?

    Besides who knows when they will receive the documents anyway.

    I wonder if what you wrote is connected to this?
     
  11. Timely probably means here : received by IRCC in the 90 days following the signature date.
    Which is pretty much a given unless IRCC sends the package back for any reason.

    And, you don't have to be in Canada the day IRCC receives your application.
     
  12. #12 dpenabill, Jun 17, 2019 at 1:57 PM
    Last edited: Jun 17, 2019
    Assuming your reference to what I wrote is in reference to this:

    Key elements in this statement:
    -- relevant time period
    -- for SOME citizenship requirements
    -- depends on (is fixed as of) the date the application is made​

    The main one of those "some" citizenship requirements is the actual physical presence requirement. It is based on the applicant's "eligibility" period. The eligibility period is based on the date the application is MADE. The eligibility period is precisely the five years immediately preceding that date, the date the application is made.

    There are other requirements depending on the date the application is made, including compliance with tax filing obligations, and SOME of the prohibitions . . . such as the requirement the applicant have no convictions for an indictable offence within a period of time (four years) that, again, is based on the date the application is "made."

    There are many other requirements which do not depend on the date the application is made. But the applicant must nonetheless meet those requirements AS OF the DATE the APPLICATION is "MADE." And continue to meet those requirements right up to the day, the moment, of taking the oath. Valid PR status is one such requirement. Thus, if a PR-applicant goes abroad after applying and the amount of time for processing the application is so long that in the meantime the PR fails to be in compliance with the PR Residency Obligation, that PR becomes "inadmissible," and thus may be determined to NO LONGER be qualified for a grant of citizenship EVEN though he or she was qualified when the application was made, even though qualified for, say, more than a year while the application was in process.

    In any event, the date the application is determined to have been MADE is an important element of the application. The most salient being the actual physical presence requirement, which again is based on the five year eligibility period which in turn is based the date the application is determined to have been MADE.

    For the vast majority of applications, the date the application is considered "made" is the date the applicant signs the application, which needs to be the same date as the presence calculation is signed. But there are circumstances which can preclude this.

    As @Seym observes, and perhaps the most common example, is the stale-dated application . . . an application which arrives in CPC-Sydney more than 90 days after the date it was signed. IRCC will reject such applications.

    Another example is the post-dated application, where the applicant signs the application but dates the signature for a later day. Some applicants may do this and get away with it if the date is earlier than the date IRCC actually receives the application. In any event, IRCC will reject any post-dated application, assuming it identifies that the application was post-dated.

    REMINDER: the applicant's signature verifies (under some rather severe penalties) the truthfulness of all the information in the application. Dating the application is NOT like dating a check or a private contract. The date entered as the date of the signature is as important and material as any information the applicant provides. A post-dated application is, on its face, a material misrepresentation and potentially punishable as a serious crime.

    NOTE: even though IRCC does not open the application for weeks or sometimes months after the application actually arrives at the CPC-Sydney, the date of its delivery is undoubtedly recorded. AND applicants should be aware that the packaging the application arrives in becomes part of the application, and while I do not know to what extent IRCC agents compare the outside of the package to information in the application itself, it is readily apparent they SOMETIMES do . . . even comparing handwriting on the package to any (including signatures) in the application, including handwriting on documents submitted with the application (again, such as comparing signatures on drivers license with other handwriting, and especially the signature on the application itself). That is, IRCC undoubtedly has a record of the date the application arrives, and can consider that for purposes of identifying stale-dated or post-dated applications.

    In any event, the applicant must MEET all the requirements as of the date the application is signed and determined to be the date the application was MADE.
    -- Some of those requirements are based on that date. The applicant either meets those requirements as of that date, or not.
    -- Many other requirements are continuing requirements. The prohibitions in particular. Valid PR status.​


    The applicant must meet ALL the continuing requirements as of the date the application is made AND CONTINUE TO MEET THEM all the way to the moment of taking the oath. Thus, for example, an applicant in a rush to make the oath ceremony who succumbs to road rage when someone takes "his" parking space, and ends up getting charged with assault just a half hour before he is scheduled to take the oath, suddenly is NO longer eligible for citizenship, needs to disclose the arrest, and will NOT take the oath that day.

    By the way: applicants would be prudent to always:

    (1) keep a complete, independent copy of anything sent to IRCC (thus, for example, even if the applicant has other photocopies of documents copies of which were included in the application, the applicant should nonetheless have a complete copy of everything in the application including separate copy of such documents), AND

    (2) use a courier service (Canada Post is fine) that provides confirmation of delivery, and of course keep a copy of the mailing receipt with the copy of the application

    Re: applying-on-the-way-to-the-airport:

    Having valid PR status is a fundamental requirement and pre-dates the Harper government by a lot, by DECADES. It itself is not about precluding citizenship from those applying-on-the-way-to-the-airport. What it APPEARS the Harper government often did, however, was stall processing some applicants who appeared to have applied-on-the-way-to-the-airport long enough that they ran into PR RO compliance issues and thus failed to stay qualified for citizenship.
     
  13. #13 Flandernss, Jul 11, 2019 at 4:17 PM
    Last edited: Jul 12, 2019
    good!
     

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