. . . I ve had only 900 days spent in canada. I wrote them a letter explaining the situation and I ve also attached one from my employer, where it states that I ve been crossing the border weekley as an employee for a Canadian company.
Has anyone been in the same situation ? I am looking for an answer from a truck driver.
This query has been adequately answered: Based on this application, the trucker/applicant is NOT qualified for a grant of citizenship. If not withdrawn, the application will likely be denied with NO Citizenship Judge hearing. But if per chance it makes it to a CJ hearing, the outcome is nonetheless NOT in doubt since there is no basis upon which a CJ can approve an applicant who does NOT meet the minimum Actual Physical Presence (APP) requirement. There is NO path to citizenship for this application. Applicant will need to
re-apply after the applicant has waited long enough to meet the APP.
@adi2999: you may also want to review and consider a CAUTION I address below.
THIS IS ASSUMING it is about an application submitted after October 10, 2017, or at the very least since June 11, 2015:
Context Note: Since June 11, 2015 the statutory requirements for grant citizenship include a minimum number of days of
ACTUAL PHYSICAL PRESENCE (APP) in Canada, with only Crown Service related exceptions. Experiences and cases involving applications made prior to June 11, 2015, among which apparently there are still some pending, involve a different
RESIDENCY requirement, which in particular could mean a very different outcome in the
trucker-based-in-Canada scenario . . . albeit even in that scenario, for applications made after 2008 to 2010, or so (when under the Harper government there was a strong shift toward emphasizing physical presence), just 900 days of physical presence would still render it a tough case to make. In any event, for an application made since June 11, 2015, there has been an
ACTUAL PHYSICAL PRESENCE in Canada requirement. This is mandatory. Neither IRCC nor Citizenship Judges have any discretion to approve or grant citizenship for an applicant who falls short, even ONE DAY short (but note nuance addressed below).
Thus, again, this query has been adequately answered. The multiple observations posted by
@btbt in particular
ACCURATELY cover the issue. To be clear, however, if the physical presence calculation total is 900 days presence in Canada,
there is NO path to the oath for this application. NONE.
If the physical presence calculation totaled is 1000 days presence in Canada, or even 1090 days, there would be
NO path to the oath.
As
@btbt and some others have accurately commented, the 1095 day requirement is a statutory minimum. Again, neither IRCC nor a Citizenship Judge has any authority to waive this requirement. There is NO question regarding this. None.
I am posting this because not all the comments above are accurate let alone consistent with the current rules. There appears to be some confusion. Much of this, I suspect, is rooted in the history I noted above, recognizing that older applications and cases were judged under a RESIDENCY standard, pursuant to which applicants whose residency was in Canada and their life centralized in Canada could be approved for a grant of citizenship by a Citizenship Judge despite falling short, sometimes even way short, of having spent 1095 days actually physically present in Canada. This is NO LONGER POSSIBLE.
This has NOTHING to do with how a bureaucracy works. It only has to do with the letter of the law now (and has since June 11, 2015, albeit the number of days required changed as of October 11, 2017), which now imposes a fixed statutory minimum number of days
ACTUALLY PHYSICALLY PRESENT (APP) in Canada. Thus, for example, no amount of MP support will make a difference.
Reports of Experience to the Contrary:
Without scrolling through back pages in the forum to identify them, there are probably many anecdotal reports by Canadian-based truckers who did indeed SUCCEED in their application for citizenship despite falling short of 1095 days APP.
BUT only if they applied prior to June 11, 2015.
Which is probably what explains this:
There was a case some years ago that spoke to this where a judge commented in favour of the truck driver. I'm trying to find it.
Questioned or Disputed Number of Days Nuance:
As noted, neither IRCC nor a CJ has the discretion to approve or grant citizenship if the applicant fails to meet the minimum APP requirement. None.
Thus, for example, if a Citizenship Officer and Citizenship Judge determine the applicant falls short,
by even ONE day, the application must be denied. Moreover, if the applicant's own presence calculation totals 1094 or fewer days, the applicant fails to even make an application which meets the requirements for processing, in which event the application will be RETURNED, not processed, and which should result in a full refund of fees paid.
If, however, the applicant's physical presence calculation submitted with the application shows presence for at least 1095 days, that does meet the requirements for processing . . . even if IRCC is aware of information which shows this to be inaccurate, that the applicant was present less than the minimum required. Obviously, in this scenario IRCC will at least question if not outright challenge the presence calculation. What happens then can vary.
If, as in this case, the applicant needs to submit a new presence calculation and as corrected that calculation falls short of 1095 days, the applicant is NOT qualified for a grant of citizenship. What I do NOT know is
-- whether this will result, in effect, in a summary denial of the application, OR
-- whether the application will be deemed a "presence-case" pursuant to which it goes into a processing track in which a Citizenship Officer makes a referral to a Citizenship Judge utilizing the File Preparation Template, which as others have noted tends to result in a rather lengthy delay before there is a final decision
Either way the outcome is NOT in question. If the applicant's corrected presence calculation falls short, the application
CANNOT be granted; as a matter of law it CANNOT be granted.
But here is the nuance: This probably has zero relevance to this trucker's situation, given that even the original presence calculation purported to only barely meet the minimum APP requirement, and given that a corrected presence-calculation definitively establishes falling short.
Sometimes, perhaps too often, applicants submit an application and presence calculation based on imperfect memory including some estimated rather than exactly accurate absences. IRCC has questions. Imposes RQ. The applicant submits a response and the applicant's new,
corrected presence calculation still shows at least 1095 days of actual presence. BUT IRCC has information otherwise. IRCC determines otherwise. This is a true "
presence-case" and unless there is basis for IRCC to proceed on an allegation of misrepresentation (in which event it would become a "
presence-FRAUD-case" rather than just a "
presence-case"), this is the case that will be referred to a Citizenship Judge.
This would be a case in which there is a
QUESTION OF FACT. The question is whether or not the applicant has submitted sufficient evidence to prove the applicant was actually physically present at least 1095 days during the eligibility period. That is the fact question the Citizenship Judge decides. As long as there is evidence which the CJ can REASONABLY rely upon, and REASONABLY conclude based upon, that the applicant has met this burden of proof beyond a balance of probabilities, the CJ can approve the application EVEN IF IRCC makes a case the applicant fell short of the minimum.
To be clear, if the CJ concludes IRCC is correct, not the applicant, the CJ MUST deny approval. The CJ cannot employ his or her discretion in the fact-finding function to exercise leniency or flexibility and, in effect, waive or overlook the fact that the applicant fell short, even if by just a little. BUT if there is any room for reasonable minds to disagree, if the evidence in the case allows for leeway in deciding the facts, the CJ can exercise his or her fact-finding discretion to find the applicant has met the burden of proof . . . and for the otherwise stellar applicant, this could mean approval and being granted citizenship despite IRCC pushing evidence the applicant fell short.
I have gone into detail about the "
presence-case" because it illustrates the situation in which the application will go to a Citizenship Judge and in which the CJ can exercise some discretion in granting approval. Note, however, to be clear, if the evidence conclusively shows less than 1095 days, the CJ cannot ignore this. Less than 1095 days APP mandates the application be denied. Period.
This brings me to an important caveat and an even more important caution. To be continued . . .
