Ardi77 said:
The reason that I applied earlier it was just because of miscalculation of number of days...
Please help me to see the fairness and rational for this system that they accepted my application even though it was 58 days short, and they told me the judge would decide if you are eligible. For the sake of the argument lets assume that I am not lying and I stayed in the country for the whole time after that period, now after 5 years they got back to me that I shouldn't applied at the first place since I was 56 days short ...
Would it be more fair and rational if they would send me home and tell me to come back in 56 days and then apply not after 5 years....
Overall: new application is really the only practical course to pursue.
This is about the old law. Under the old law a PR could be
eligible for citizenship but not necessarily
qualified. If persuaded to apply a qualitative test for residency, a Citizenship Judge could find the applicant met the residency requirement and approve citizenship even though the applicant had less than 1095 days Actual Physical Presence (a
shortfall applicants).
There never has been a definitive indication from CIC, CJs, or the Federal Court, but it has long been my understanding that applications short of the 1095 days of Actual Physical Presence relying on pre-landing credit had virtually no chance, even back when many shortfall (less than 1095 APP) applications were otherwise being approved.
What was not fair:
What was
NOT fair was the lack of communication from CIC about the practical realities regarding shortfall applications, especially when CIC shifted policies and practices toward more strictly applying the APP test. In 2010, in particular, it was far from widely known that CIC had begun pushing the APP test . . . did not become apparent until 2011 and CIC has never formally publicized a shift in internal policy.
Indeed, even in 2012, CIC's formal internal policy (as revealed in internal memos obtained via ATIP requests) still only required a referral to a CJ hearing for applicants with less than 900 days APP (that is, as of 2012 CIC might still refer an applicant nearly two hundred days short for a
file review, no hearing necessary) . . . but it was becoming increasingly clear that in actual practice, CIC was often if not usually making a negative referral to CJs in shortfall cases, even if the shortfall was not by a lot.
scylla said:
Here's my two cents - which isn't worth much since I'm not in charge. Ideally anyone without sufficient days should be automatically refused with no opportunity to appear in front of a judge - and told to reapply once they qualify. Only those where there is a disagreement between the applicant and CIC regarding whether the residency requirement is met should appear in front of a judge. That's how I would design the process. But again - what I think means nothing...
Under the old law, CIC could not do this, since as long as the basic residency requirement was met, the applicant was
eligible for citizenship and only a Citizenship Judge could decide that the residency requirement was not met. Indeed, until August 1, 2014 (when Bill C-24 procedures came into effect), only a CJ could deny an application.
While there are still some transitional procedure issues for applicants who applied by June 10, 2015, for all applications submitted since then there is no longer any distinction between being
eligible versus
qualified. Thus, going forward, CIC will be able to
summarily reject any application based on a physical presence declaration (no more "residency calculation," but rather now a "physical presence calculation") which does not meet both the 4/6 year requirement and the 183 X 4 CY requirement.
