Bill C-24 dilemma: Applying right after reaching basic residency

[essy86]

Hi folks,

I'll soon meet the basic residency requirement of 1095 days, but I won't reach the physical requirement until June (went on a few short vacations abroad). In the light of new residency law and ambiguity around the dates, would you consider applying early without risking the Bill C-24 coming into force?

What are the chances of getting rejected by a judge (I've been employed here in the past 4 years)?

How long does it set my application back? The RQ processing times seem short as of late.

Is it a good idea to apply again later if the law doesn't come into force by June?

Thanks a lot

 

[scylla]

There's no point applying until you meet physical residency. You're guaranteed a refusal if you only meet basic residency.

 

[essy86]

There's no point applying until you meet physical residency. You're guaranteed a refusal if you only meet basic residency.

Thanks for the quick reply.

Is it really guaranteed? I can convince a judge I was a resident all the time. Does CIC reject my application without referring to a judge?

If there's still a tiny chance, how long does it usually take to get notified?

Thanks again for the information.

 

[aries9811]

dont apply, untill you hve met physical presence criteria. it's better to delay than rush and delay multiple times.

 

[essy86]

dont apply, untill you hve met physical presence criteria. it's better to delay than rush and delay multiple times.

The reason I'm even considering this is CIC can switch to 4/6 year law between my basic and physical dates, and cause a 2-year delay (by flushing my pre-PR time down the toilet). So, if the judge, for example, adds 6 months to the process, I'd be better off going down that path and not risking the C-24.

 

[OP_POP]

As everyone mentioned, you will be rejected 100%. Don't waste your time and money.

 

[essy86]

As everyone mentioned, you will be rejected 100%. Don't waste your time and money.

Guess it's not even worth trying seeing how you guys immediately dismiss the idea.

Cheers

 

[thecoolguysam]

Its the rule that you have to adhere to residency requirement. In order to avoid the 4/6 rule, you can't simply apply early.
Rule is a rule.

Would you like to get into loop of waiting for years, getting RQ, collecting paperwork, meeting citizenship judge.

My suggestion and advise would be to wait and only apply once you qualify else you are wasting your precious time and money.
Patience is the key to success!
I wish you good luck!

 

[aries9811]

Its better to sometime be a silent spectator and see if the new rule really gets in effect or not..And you might think if may get i effect and waste your time money and delay it more.

 

[nadeem55]

I'm quoting this from a different post:

Not necessarily. I personally know a family where husband was working in US on rotations (wife and kid were residing in Calgary all the time), paid taxes in Canada and had only 740 days of physical presence out of 1095, he seen CJ and been granted citizenship in 2014. His case took 2 year and 9 months though.
They had all ties - house, kid born in Calgary, RRSP/RESP accounts, etc.
Remember, every case is different and must be treated individually. Good luck!

I'm not sure, if this is still in force.

 

[dpenabill]

The absolute, definitive statements above are a bit overreaching, a bit premature. In contrast, the question posed by nadeem55 warrants asking.

Current law still allows Citizenship Judges to apply a qualitative test in determining whether applicants met the residency requirement.

That is, current law still allows for applicants to be granted citizenship even if they do not meet the 1095 days of actual physical presence test.

This will continue to be the applicable law for all applicants who apply and get their application into CIC's hands at Sydney as of the day before the new law comes into force.

Thus, for now and until the new residency requirement takes effect, it is not true that a shortfall application (application with less than 1095 days) is guaranteed a refusal.


But as a practical matter, while a refusal is NOT guaranteed, the odds of a refusal are very high.

That is, the real question is whether or not, as a practical matter, those applying now and up to the day before the new residency requirments come into force, whether such applicants who fall short of the 1095 day threshold, for actual presence, have much of a chance that a CJ might approve them based on a qualitative test.

It is possible. The law still allows this. I am confident that some applicants, those with what might be described as special circumstances, will indeed continue to be approved despite a shortfall in actual presence. But the number will almost certainly be small, and again this is not at all likely unless there are indeed very special circumstances.


Overall: The odds are probably not at all good for shortfall applicants. And, as I have elaborated in other threads, the odds are particularly not good for a shortfall applicant relying on credit for time in Canada prior to landing.

Additional consideration: In terms of ultimate timelines, even having to wait well over another year to meet the qualifying criteria under the new residency requirment may be a shorter path to citizenship than applying with a shortfall now with a very solid and compelling shortfall case. It appears that the stark contrast in processing timelines for routine cases versus residency cases (a shortfall will now almost certainly be processed as a residency case) will continue well into the future, routinely processed applications on track to be completed in less than a year (usually, not always) while residency cases will continue to take years to get processed.

 

[essy86]

The absolute, definitive statements above are a bit overreaching, a bit premature. In contrast, the question posed by nadeem55 warrants asking.

Current law still allows Citizenship Judges to apply a qualitative test in determining whether applicants met the residency requirement.

That is, current law still allows for applicants to be granted citizenship even if they do not meet the 1095 days of actual physical presence test.

This will continue to be the applicable law for all applicants who apply and get their application into CIC's hands at Sydney as of the day before the new law comes into force.

Thus, for now and until the new residency requirement takes effect, it is not true that a shortfall application (application with less than 1095 days) is guaranteed a refusal.


But as a practical matter, while a refusal is NOT guaranteed, the odds of a refusal are very high.

That is, the real question is whether or not, as a practical matter, those applying now and up to the day before the new residency requirments come into force, whether such applicants who fall short of the 1095 day threshold, for actual presence, have much of a chance that a CJ might approve them based on a qualitative test.

It is possible. The law still allows this. I am confident that some applicants, those with what might be described as special circumstances, will indeed continue to be approved despite a shortfall in actual presence. But the number will almost certainly be small, and again this is not at all likely unless there are indeed very special circumstances.


Overall: The odds are probably not at all good for shortfall applicants. And, as I have elaborated in other threads, the odds are particularly not good for a shortfall applicant relying on credit for time in Canada prior to landing.

Additional consideration: In terms of ultimate timelines, even having to wait well over another year to meet the qualifying criteria under the new residency requirment may be a shorter path to citizenship than applying with a shortfall now with a very solid and compelling shortfall case. It appears that the stark contrast in processing timelines for routine cases versus residency cases (a shortfall will now almost certainly be processed as a residency case) will continue well into the future, routinely processed applications on track to be completed in less than a year (usually, not always) while residency cases will continue to take years to get processed.

Great answer.

As for the additional consideration, the time difference for eligibility of pre-PR residents can go up to two years (from 2 years after PR to 4 years). The applications may not be as expedited in 2 years either; CIC just needs to show, pre-election, that they've reduced the backlog, and then there's no incentive to keep the applications short (especially if the conservatives are re-elected).

After all, it's a gamble and the odds aren't easy to calculate. It started a good conversation anyway.

 

[OrangeCup]

Hi folks,

I'll soon meet the basic residency requirement of 1095 days, but I won't reach the physical requirement until June (went on a few short vacations abroad). In the light of new residency law and ambiguity around the dates, would you consider applying early without risking the Bill C-24 coming into force?

What are the chances of getting rejected by a judge (I've been employed here in the past 4 years)?

How long does it set my application back? The RQ processing times seem short as of late.

Is it a good idea to apply again later if the law doesn't come into force by June?

Thanks a lot

I also thought that CJ with new BillC24 are being eliminated... I don't know if this part of the bill is in effect though, but I would say it's likely that by summer 2015 it might be... That would mean that you would have to be reviewed by Federal Court ? Quote from cic : "Now, decisions by citizenship officers, who have new authority to decide certain cases under the Act, can be judicially reviewed and challenged in a higher court."

I would suggest to wait until summer and see where 4-6 years rule is. Its not a guarantee it will be in effect on July 1st after all

 

[nadeem55]

Like @essy86, I'm also short of few days for physical presence calculating toward citizenship application.

Now, if the Govt. announce to enforce the rest of Bill C-24 provision at July 1st, 2015, I would definitely prepare my application in mid June and send on last days of June.
I believe I've some strong reasons to be considered as a legit citizenship applicant even though I'll be short of physical presence.

If this would trigger the RQ, I've seen non-routine applications with RQ are still processing pretty fast which is within a year, if that would be the case, I should take the risk.

Thanks @dpenabill for your comments.

 

[dpenabill]

As for the additional consideration, the time difference for eligibility of pre-PR residents can go up to two years (from 2 years after PR to 4 years). The applications may not be as expedited in 2 years either; CIC just needs to show, pre-election, that they've reduced the backlog, and then there's no incentive to keep the applications short (especially if the conservatives are re-elected).

After all, it's a gamble and the odds aren't easy to calculate. It started a good conversation anyway.

As suggested by OrangeCup, for now the thing to do is wait to see when the new residency provisions will actually come into force.

While it is not guaranteed that a shortfall application will be refused, the odds are so poor for someone relying on credit for pre-PR presence that it is hard to conceive a scenario making it worth even trying.

If there is advance notice as to when the new provisions will take effect, that will of course considerably help individuals like you make an informed decision.

As for the backlog, I tend to agree that relative to the backlog of residency and other non-routine cases, CIC is engaged in a big push that is not likely to last beyond the election. In contrast, though, I expect routine case processing timelines to stay more or less on track, in the range of less than a year even if not the six to nine months many have enjoyed in the last year (my total timeline was barely 8 months, oath nearly a year ago now).

And I suspect there will be a significant number in a position similar to yours who elect to take a chance and make a shortfall application before the new law takes effect, which will mean a significant number of new residency cases for CIC to process. I do not know how this is going to go, but I think it is easy to guess that residency case timelines are going to go long, in the range of years. To my view, this weighs against taking the chance on a shortfall application.

It is correct that theoretically the difference in date of qualification will be delayed by up to two full years for applicants relying on pre-PR credit. But for it to be a full two years that is dependent on having zero absences in the preceding four years, and of course on having been in Canada with status since before then. The number affected to this extent, while probably substantial, should not be huge. And, overall, again, this group (those relying on pre-PR credits toward residency) seem the least likely to succeed with a shortfall application. (I have seen only one report of a CJ granting approval to a shortfall applicant relying on pre-PR credit, and CIC appealed that and won the appeal.)

I also thought that CJ with new BillC24 are being eliminated... I don't know if this part of the bill is in effect though, but I would say it's likely that by summer 2015 it might be... That would mean that you would have to be reviewed by Federal Court ? Quote from cic : "Now, decisions by citizenship officers, who have new authority to decide certain cases under the Act, can be judicially reviewed and challenged in a higher court."

I would suggest to wait until summer and see where 4-6 years rule is. Its not a guarantee it will be in effect on July 1st after all

This is something that has indeed come up lately, which I addressed in another topic.

What jumps out is indeed the question as to whether the role of CJs as adjudicators is being eliminated . . . as well as the question about the extent to which CIC's decisions will now be subject to direct judicial review in the Courts.

The following is a partial quote from what I posted in another topic about this:

. . . the literal language in the Citizenship Act does not overtly state, in the declarative form, that applications must be referred to a Citizenship Judge for a hearing. (The language of new section 14(1) is essentially conditional, if . . . referred to a CJ. The language in the prior version of section 14(1) was that all grant applications shall be considered by a CJ.)

. . . in another forum there has been a report of a residency case on track for a hearing with a Citizenship Officer in conjunction with an ATIP response indicating the FPAT has been completed. I initially assumed that this was actually a reference to a hearing with a Citizenship Judge. But the individual making that report has continued to report that it is about a hearing with a Citizenship Officer.

I do not know, but I believe it can be safely assumed that Justice LeBlanc referred this case back to CIC rather than to another Citizenship Judge at the request of the Minister (via a plea in the alternative), and that the language used by Justice LeBlanc derives from pleadings in the case submitted by the Minister's counselors (the lawyers representing CIC).

Not too much should be read into a single case, a single decision, especially during the period of transition. But the phrase that really jumps out is the reference to how Bill C-24, as now in force, has changed things:

". . . the manner in which applications for citizenship are to be determined [has been modified] by placing the adjudication of such applications within the ambit of [CIC]." (see paragraph 27 of the decision)

The outstanding question is whether this government intends to interpret the Citizenship Act, as amended by Bill C-24, to give CIC (the Minister acting through delegates, those being Citizenship Officers) the authority to:

-- grant or deny citizenship

or

-- to grant citizenship or refer the applicant to a CJs for a determination

That is, as you say, whether citizenship officers acting as decision-makers "have the power to flat-out deny applications or need to refer to a CJ any file where they believe the applicant does not meet the strict physical residence requirement."

Frankly, as a jurist, I think the language of Bill C-24 is a mess, rife with ambiguity and outright vagueness. This is why even when a single party has control over what legislation is adopted and made law, the democratic process demands a robust debate, an opportunity to fully vet the provisions proposed. That opportunity was quashed by the PM.

The reference to where the "adjudication" is to take place looms large. This will not be the final interpretation of what the Minister's authority is now, as of August 1, 2014, but it is definitely a huge clue as to what this government is advocating.

. . . if the proper place for the adjudication of a citizenship application is now with the Minister, will applicants be entitled to seek leave for judicial review of that decision? even though CIC has in the meantime referred the matter to a CJ?

What impact does this have on the decision-making of an applicant in the position of the OP here, essy86, that is, those who are approaching the date the new residency requirement comes into force and who are close to meeting the actual physical presence threshold under the current law, and who meet the basic residency requirment?

As I noted above, this question looms more problematically for such applicants who, like essy86, are also relying on pre-PR time in Canada to count toward residency.

There is a lot left to unfold in how the new decision-making process works and is applied, and in how the Federal Court responds. Predictions are thus largely if not entirely speculative. That said, it is probably a safe bet, though, that overall things are going to continue to be tough and the timeline long for those whose case is deemed to have a residency issue. The prognosis for shortfall applicants is not good.

Like @ essy86, I'm also short of few days for physical presence calculating toward citizenship application.

Now, if the Govt. announce to enforce the rest of Bill C-24 provision at July 1st, 2015, I would definitely prepare my application in mid June and send on last days of June.
I believe I've some strong reasons to be considered as a legit citizenship applicant even though I'll be short of physical presence.

If this would trigger the RQ, I've seen non-routine applications with RQ are still processing pretty fast which is within a year, if that would be the case, I should take the risk.

Not all shortfall applications are created equal. In particular, if the applicant is relying on pre-PR credit, as I have discussed elsewhere one of the difficulties is in making the case that one's life was centralized in Canada even though one's status was temporary.

As I note above, the only report (I am aware of) indicating a shortfall applicant, who got CJ approval while relying on pre-PR credit, is a case which CIC successfully appealed.

Not all RQ'd cases are created equal. I would not be lulled into expecting that a relatively quick timeline for some RQ'd applicants is much of an indication about how it will go for most, let alone for those CIC will not approve and who must then go through the full adjudication process. There are still applicants waiting for the next step who applied in 2010 and 2011. And as I note above, there is bound to be something of a rush of new residency case applications leading up to the deadline.

In particular, not all RQ'd cases continue through the process as a residency case. The latter, I suspect, will still continue to have a very long timeline.

But it is, ultimately, a personal decision, and there are a lot of factors to consider which affect the pros and cons differently for the specific individual faced with this issue.