Apply for Citizenship before reaching Physical Presence

[danisa]

Hello Everyone,

I am in need your advice & guidance on my planning for Citizenship Application (in near future).

In brief:
- Landed in Oct/2007 with a work visa
- Become a PR april/2011

I have by now the basic Residency, but because my husband travel so much for work reasons I have a lot of abscences (approx 400 + days) and according to the residence calculator I don't have the Physical presence until Jan/2015 but I will keep traveling so the date will keep changing. During my periods of absence I still having tights to Canada, my house, paying bills/credit cards, taxes, etc.

My concerns are as follow:

1: Any one has ever applied (even heard of) and got citizenship of Canada on the criteria of Basic residency without the physical presence.

2: Can professional advice and representation from lawyer can be of more help, prior to applying to Citizenship, in my case?

3: Godforbid, if my citizenship application is rejected, is there any chance that I will not be eligible for renewal of my PR card?


The personal and family situation is making me think in the direction of application for Citizenship on Basic Residency criteria. I would be very grateful for any information or advice in my case.

 

[scylla]

Based on everything I have seen/read on this forum - I would strongly recommend that you wait until you qualify to apply.

If you don't meet the residency requirements, you can expect the RQ which will add years to your processing time. And at the very end of that - there's a very good chance you'll be looking at a refusal anyway. Don't bother spending money on a lawyer - it won't help.

If your citizenship application is refused, it won't affect your PR status.

 

[danisa]

yes, I have read it took longer but I'm wondering if it will match the time in the end, since the process for residence is between 2-3 years but If i keep traveling like this I would no be available to apply until 2016? so that is 3 years of waiting plus the 2-3 years of application process.

 

[OKK]

The minimum requirement is 1095 days in four years period. If you will try to apply any earlier than the minimum requirement you surely will be getting a RQ eventually you will be seeing a judge and then your application will be refused regardless. Then you will have to start all over again. So piece of advice complete you days then apply and no lawyer can help you out of this.FYI your PR is not effected from all this however to maintain your PR status you have to complete 2 years in 5 years period.

 

[danisa]

The reason I believe I could have a shot with the application before the physical present is because I read a few websites with this information:

..."The following is a list of factors which may, in some cases, lead Canadian Citizenship Judges to "bend" the 1095-Day Rule:

The quality of the applicant's connection with Canada is more substantial than that which exists with any other country, as reflected by the applicant's involvement in Canadian work and business ventures, community organizations, and payment of Canadian income tax..."

and like I mentioned for my absences of Canada I still paying insurance, bills, rent, credit cards, etc.

 

[scylla]

It definitely states that in the rules.

However practially, we never seem to see that flexibility applied. Less than 1095 days physical presence seems to always equal refusal.

If you decide to go for it - let us know how it goes. There's someone else here who is trying for citizenship with 1095. Check the recent threads.

 

[OKK]

well i wish you all the very best however i am 100% sure of what i said in my earlier post. A very close friend of mine who mistakenly submitted his application 10 days earlier had his citizenship application refused by citizenship judge after a long 5 years wait.
He has all what you are talking about and on top of it all he works for the city government for past 10 years.

 

[danisa]

WOW , I really thought It will be some flexibility since I never lost ties to Canada, First, I will take the English test soon and then I will talk to a Lawyer. I use one for my PR and It was worth it. I will post if he have anything different to say about this. Thanks!!!

 

[OKK]

yes plz do keep us all posted on this. When it comes to CIC there are thousands of applicants who are waiting for that flexibility.

 

[frege]

Hello Everyone,

I am in need your advice & guidance on my planning for Citizenship Application (in near future).

In brief:
- Landed in Oct/2007 with a work visa
- Become a PR april/2011

I have by now the basic Residency, but because my husband travel so much for work reasons I have a lot of abscences (approx 400 + days) and according to the residence calculator I don't have the Physical presence until Jan/2015 but I will keep traveling so the date will keep changing. During my periods of absence I still having tights to Canada, my house, paying bills/credit cards, taxes, etc.

My concerns are as follow:

1: Any one has ever applied (even heard of) and got citizenship of Canada on the criteria of Basic residency without the physical presence.

2: Can professional advice and representation from lawyer can be of more help, prior to applying to Citizenship, in my case?

3: Godforbid, if my citizenship application is rejected, is there any chance that I will not be eligible for renewal of my PR card?


The personal and family situation is making me think in the direction of application for Citizenship on Basic Residency criteria. I would be very grateful for any information or advice in my case.

Hi Danisa,

If your husband is a Canadian citizen and you're accompanying him abroad, then you're meeting the PR residence requirement (but maybe not the requirement for citizenship). Otherwise you need to be in Canada for 2 years in every 5 year period to retain your permanent residence. The citizenship application is unrelated to retaining PR, unless your application gives CIC information that shows you haven't been meeting the PR residence requirement.

It is possible to apply with less than 1095 days, but it will make the process much longer and there is no guarantee it will work. You should only do this if you don't think you'll be able to meet the physical presence criterion. In this case you should definitely use a lawyer.

The current state of the law is as follows. Since there are no appeals on citizenship cases beyond the level of the Federal Court, there is contradictory jurisprudence from different judges of the court, as the appeal courts haven't been able to resolve the conflict. As a result, citizenship judges make up their own minds as to which test to apply. It is as if there was a lottery as to which citizenship judge you will get, and how the law will be applied to you.

One test, the one in Pourghasemi, strictly requires 1095 days' physical presence. The Koo test, on the other hand, looks at ties to Canada. Citizenship judges first look at physical presence. If you don't have 1095 days, then some judges stop there and deny the application. Others give you another chance by applying the criteria in Koo. The questions asked are the following:

a. was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship;

b. where are the applicant's immediate family and dependents (and extended family) resident;

c. does the pattern of physical presence in Canada indicate a returning home or merely visiting the country;

d. what is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive;

e. 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 temporary employment abroad;

f. what is the quality of the connection with Canada: is it more substantial than that which exists with any other country.

See http://canlii.ca/t/fs5f2 for a recent Federal Court judgment on the subject.

You can read Federal Court decisions on the subject by searching Canlii:

http://www.canlii.org/eliisa/search.do?text=%22citizenship+judge%22+koo&legislation=legislation&caselaw=courts&boardTribunal=tribunals&language=en&searchTitle=Search+all+CanLII+Databases&searchPage=eliisa%2FmainPageSearch.vm&sortOrder=date&requestedPage=1

Some cases do have positive outcomes for claimants with fewer than 1095 days' physical presence. More often, the outcome is negative.

Here are a few recent positive cases:

http://canlii.ca/t/fz6pc
http://canlii.ca/t/fv39v
http://canlii.ca/t/fsfqt

 

[jman1200]

Hi

I just this forum joined to share my experience. This site provided me valuable information so I'd like to return the favour.

I applied for Citizenship before reaching Physical Presence and it got granted. Now, I do not advise anyone to do this.

My particular situation:
- I had the number of calendar days required to apply for citizenship.
- I was 100 days short to meet the physical presence. My absences were due to vacation, I work and live in Canada.
- Applied in Oct 2012.
- I decided to apply because the requirements were changing back in Nov 2012 and if I had waited, I needed to prove I knew English which I learned when I was a kid and I didn't want to take any kind of tests.
- In Dec 2013 they asked for additional documents, a Residence Questionnaire which I sent with 100+ pages of documents to prove I lived here.
- In Aug 2014 I wrote and passed the Citizenship test. Official that reviewed my file after the test told me that because I applied before meeting the physical presence my application will have to be reviewed by a judge and that it could take up to 8 months. Said that I'd be better if I withdrew my application and re-apply. I decided to take my chances.
- Oct 2015. Once my application exceeded the 36 months, I called the call centre to inquiry about my file and why it was taking so long.
- Nov 2015 got an appointment to meet a judge. Judge reviewed my file and asked my about my ties to Canada, I was able to tell he followed the Koo test I read about somewhere. Judge was very nice to speak with.
- Jan 2016. My application was granted.

If I had known I'd take so long and that I was going to be under so much stress thinking it was going to be rejected, I'd have waited to meet the physical presence and write the English proficiency test. Many friends that applied after me, got their application approved within 8 months.

My advise, wait until you meet all the requirements.

 

[scylla]

Hi

I just this forum joined to share my experience. This site provided me valuable information so I'd like to return the favour.

I applied for Citizenship before reaching Physical Presence and it got granted. Now, I do not advise anyone to do this.

No longer relevant for those starting the application process. Under the new citizenship rules, you are automatically refused if you apply without the required physicaly presence days.

 

[dpenabill]

I just this forum joined to share my experience. This site provided me valuable information so I'd like to return the favour.

I applied for Citizenship before reaching Physical Presence and it got granted. Now, I do not advise anyone to do this.

My particular situation:
- I had the number of calendar days required to apply for citizenship.
- I was 100 days short to meet the physical presence. My absences were due to vacation, I work and live in Canada.

. . . . . .

- Nov 2015 got an appointment to meet a judge. Judge reviewed my file and asked my about my ties to Canada, I was able to tell he followed the Koo test I read about somewhere. Judge was very nice to speak with.
- Jan 2016. My application was granted.

While the advice to wait is indeed no longer relevant, as it is now mandatory to wait, and there is no Koo path for the grant of citizenship for anyone who is applying now (or since June 11, 2015), your report is appreciated since it shows that those who did apply, before June 11, 2015, who applied with a shortfall (less than 1095 days actual presence) still have reason to hope their application might be granted. There are undoubtedly hundreds if not thousands who applied with a shortfall (especially so as the date of implementing the longer minimum physical presence requirement approached) and who are now wondering what their odds are.

Of course it is still very difficult to forecast the odds. It seems to be the case that many shortfall applicants are being denied. But reports like yours help to show that a significant number are successful. (In contrast to many reports in this and other forums, as far back as 2013 and before, stating something to the effect that less than 1095 days physical presence seems to always equal refusal.)

BTW: Congratulations. And again, thanks for the report.

 

[itsmyid]

I am in shock for such a short reply above....

 

[Diplomatru]

I am in shock for such a short reply above....

lol