does anyone know how is residency calculated/treated by citizenship judge if you have less than required min. days but you were traveling outside of Canada on behalf of the employer (e.g. you are working off shore on a Canadian vessel or you are traveling a lot to the States to support market expansion of Canadian company)?
If the application was made after June 11, 2015, a short fall will result in the application being denied.
BUT this appears to be about an application made prior to June 11, 2015. Those applicants may qualify based on residency rather than actual physical presence. That means an applicant can qualify and be granted citizenship even if there is a short fall (less than 1095) in days present.
So the key factor is whether or not your application was submitted prior to June 11, 2015.
The following observations apply to an application made prior to June 11, 2015:
If yes, if the application was made prior to June 11, 2015, and it is a short fall case, these can be complicated. There is little recent reporting about how these cases have gone in the last couple years. While Harper was PM the trend was toward denying many if not most, if not nearly all short fall applications. But there were some reports and decisions earlier this year which hinted IRCC and CJs have been a little more liberal since.
The main thing, of course, is that the applicant was RESIDENT in Canada for at least a full three years, residency for this purpose meaning the individual's life was centralized in Canada. It is also critical to establish the first date that the applicant actually established a residence in Canada, an in fact residence. Days in Canada prior to that date do not count toward meeting the residency requirement when a qualitative residency test is applied.
There is a lot more to it than that. I do not have time to go into the particular criteria that is usually considered in these cases, often referred to as the Koo test or Koo criteria ("Koo" being the name of the applicant in the Federal Court decision which listed the criteria). Mostly, though, it comes down to showing a paper trail of a life centralized in Canada, and then down to the discretion of the CJ, and even if the CJ agrees to apply a qualitative residency test and approves a grant of citizenship, IRCC can still appeal that (and that is what the most recent cases about this have been, IRCC appeals when a CJ granted approval in a short fall application that was made prior to June 11, 2015).
A CJ can choose to apply a strict physical presence test, in which case the short fall application will be denied. That is, the CJ does not have to even consider any other test, but can deny approval based entirely on the applicant having less than 1095 days of actual presence in Canada (during the relevant four years).
That means you may have to persuade the CJ to apply a more flexible, liberal qualitative residency test, just to have a chance. Thus, it can be really important to show the CJ you
deserve citizenship, that Canada is and has been home, that Canada is where you live despite work that involves being outside Canada a lot of the time.
There were two somewhat recent cases in which the CJ approved and the Federal Court also upheld the grant of citizenship in short fall cases but I do not have the citations or links handy.
The following decisions, with links, barely scratch the surface, and the outcomes are negative, but they should offer some insight into how the qualitative residency case is made:
Aman, 2017 CF 723
http://canlii.ca/t/h5kfc CJ approved application but Federal Court reversed . . . in-depth discussion of Koo criteria but this decision is in French (internet translating service can make the decision readable in English but these translations are full of errors)
Huang, 2016 FC 1348
http://canlii.ca/t/gw5bw Another case in which the CJ granted approval and IRCC appealed. And the Federal Court reversed. Koo criteria specifically quoted in this case.
Zadegan v. Canada
http://canlii.ca/t/h4f9t CJ did apply Koo but denied approval, lost appeal
MAZIN HELMY AL-OBEIDI
http://canlii.ca/t/gx7x3 CJ denied and lost appeal
One Federal Court justice's version of the Koo criteria:
(1) was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
(2) where are the applicant's immediate family and dependents (and extended family) resident?
(3) does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
(4) what is the extent of the physical absences -- if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive?
(5) is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad?
(6) what is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
