There are two elements in the scenario described by alphazip which distinguish it from maxm's case.
. . . The only way he qualified was if days were counted before he became a PR, and while he was living here with his Canadian spouse, essentially as a visitor. . . .
There is a difference between the status one has when in Canada, and the nature of one's physical presence while in Canada. Typically, those with visitor status are visiting, but not necessarily. A partner of a Canadian in Canada, for example, can have dual intent (I was in this group myself, many years ago now), and thus legitimately enter Canada with visitor status but also be present in Canada with an intent to live permanently in Canada (subject to obtaining status to do so).
If it appeared he was living in Canada, that implicitly indicated he had a residence in Canada. Thus, even if his residency had been contested, he would have had a fair argument that the time should be given the half-day credit even though his status was that of a visitor. The important thing, though, was that whoever screened the application for residency inferred he was living in Canada and counted those days . . . leading to the bigger distinction.
But the bigger distinction is in the other element:
. . . The result for my friend was that his calculation was not questioned at all and he was approved for citizenship and took the oath. His relative ease and speed . . .
This is what really makes the difference. For the vast majority of applicants, even during the height of the OB 407 rollout (in many months during 2012 around one-in-four applicants were being issued RQ), their residency calculations were not questioned. CIC relied on the inference that the applicant was in Canada between all disclosed entry and next exit dates, that the online residency calculation (or the other form) accurately disclosed the relevant dates, and if those added up to 1095+ the residency requirement was satisfactorily met; then the applicant was approved.
In contrast, as my previous post shows, the issue about counting time visiting Canada is complicated. A lot can depend on whether CIC focuses attention on the issue.
And for maxm CIC has already focused on the issue. And now RQ has been issued, and apparently this is directly because of this issue.
That in itself totally distinguishes maxm's situation from the scenario described by alphazip. There is zero chance that maxm's case will proceed similarly to one described by alphazip.
What this means for maxm's case:
Unfortunately it means precisely what the CIC agent said: CIC is not going to give credit for the days spent visiting Canada prior to becoming a PR.
This does not mean this strict rule will be applied to all pending 3/4 rule applications. It is probable that many or most or nearly all will continue to, so to say, fly under the radar.
For whatever reason, though, CIC identified and focused on this issue in maxm's application. Once in issue, again it is clear that CIC's position is that those days do not count.
To what extent this is bad news, however, depends on many, many other factors and circumstances. Not the least of which, of course, is the residency calculation otherwise.
As noted before, in the Jahanara Begum Khan case, Justice Locke agreed with CIC's argument against crediting time spent visiting (even while as a PR), but ruled the deduction of that time still left her with more than 1095 days that do count. (CIC argued the CJ failed to explicitly make a finding as to the date residence was established, so there was no basis for finding the applicant met the residency requirement; Justice Locke said that an implicit finding is sufficient, so long as there was sufficient residence after that date to meet the residency requirement.)
I'd guess that maxm's situation is more difficult than that, guessing that the deduction of the time probably reduces the total to less than 1095. If so, yep, there is a problem. But I do not know those details. The details matter, and that particular detail is not the only one that matters. There are many other factors which can influence how this goes for maxm.
Residency requirement versus physical presence requirement:
The residency aspect of the old law, the 3/4 residency requirement, was often understated if not overlooked. This arose because the primary manner of assessing residency was based on counting days physically present. Even in cases involving the application of a qualitative test (shortfall cases), the key consideration was how many days the applicant had been physically present in Canada.
It is worth remembering that the 3/4 rule was based on "at least three years of residence in Canada," to be calculated in the manner prescribed (subsection 5.1(c)(i), the half-day credit, and 5.1(c)(ii), the full day credit).
The new law, the 4/6 requirement, is explicitly a physical presence requirement.
It is worth noting, for example, that in the instruction quoted by alphazip, the days to count are days of residence, not mere presence. (The statute itself stated it this way: " . . . for every day during which the person was resident in Canada . . . " (subsection 5.(1)(c)(i) in the previous and applicable version of the Citizenship Act).
Bottom-line:
If and when CIC focuses on the issue about when the applicant established actual residence in Canada, beyond just being present in Canada, CIC's position, again, is to NOT count time visiting Canada prior to the date of establishing actual residence. This does not happen to all applicants who included visiting time in their calculation, but once CIC has identified the issue for a particular applicant, CIC's approach is to not count that time.
My guess is that CIC does this, that is focuses on and applies the strict rule, when there are additional doubts or questions as to the applicant's residency. That was clearly the underlying situation in the Jahanara Begum Khan case.
So it is not easy to forecast how CIC will approach maxm's case. If the Citizenship Officer ultimately deciding the case for CIC is favourably impressed and believes maxm deserves the grant of citizenship, perhaps the Citizenship Officer will not focus on this particular issue. And even if the Citizenship Officer is not satisfied and refers the case to a Citizenship Judge, the CJ may be persuaded that maxm should be approved for citizenship.
But there is no doubt about what the strict rule is, if CIC applies the strict rule: time visiting Canada before establishing residence in Canada will NOT count.
These deserve some emphasis:alphazip said:
. . . The only way he qualified was if days were counted before he became a PR, and while he was living here with his Canadian spouse, essentially as a visitor. . . .
There is a difference between the status one has when in Canada, and the nature of one's physical presence while in Canada. Typically, those with visitor status are visiting, but not necessarily. A partner of a Canadian in Canada, for example, can have dual intent (I was in this group myself, many years ago now), and thus legitimately enter Canada with visitor status but also be present in Canada with an intent to live permanently in Canada (subject to obtaining status to do so).
If it appeared he was living in Canada, that implicitly indicated he had a residence in Canada. Thus, even if his residency had been contested, he would have had a fair argument that the time should be given the half-day credit even though his status was that of a visitor. The important thing, though, was that whoever screened the application for residency inferred he was living in Canada and counted those days . . . leading to the bigger distinction.
But the bigger distinction is in the other element:
. . . The result for my friend was that his calculation was not questioned at all and he was approved for citizenship and took the oath. His relative ease and speed . . .
This is what really makes the difference. For the vast majority of applicants, even during the height of the OB 407 rollout (in many months during 2012 around one-in-four applicants were being issued RQ), their residency calculations were not questioned. CIC relied on the inference that the applicant was in Canada between all disclosed entry and next exit dates, that the online residency calculation (or the other form) accurately disclosed the relevant dates, and if those added up to 1095+ the residency requirement was satisfactorily met; then the applicant was approved.
In contrast, as my previous post shows, the issue about counting time visiting Canada is complicated. A lot can depend on whether CIC focuses attention on the issue.
And for maxm CIC has already focused on the issue. And now RQ has been issued, and apparently this is directly because of this issue.
That in itself totally distinguishes maxm's situation from the scenario described by alphazip. There is zero chance that maxm's case will proceed similarly to one described by alphazip.
What this means for maxm's case:
Unfortunately it means precisely what the CIC agent said: CIC is not going to give credit for the days spent visiting Canada prior to becoming a PR.
This does not mean this strict rule will be applied to all pending 3/4 rule applications. It is probable that many or most or nearly all will continue to, so to say, fly under the radar.
For whatever reason, though, CIC identified and focused on this issue in maxm's application. Once in issue, again it is clear that CIC's position is that those days do not count.
To what extent this is bad news, however, depends on many, many other factors and circumstances. Not the least of which, of course, is the residency calculation otherwise.
As noted before, in the Jahanara Begum Khan case, Justice Locke agreed with CIC's argument against crediting time spent visiting (even while as a PR), but ruled the deduction of that time still left her with more than 1095 days that do count. (CIC argued the CJ failed to explicitly make a finding as to the date residence was established, so there was no basis for finding the applicant met the residency requirement; Justice Locke said that an implicit finding is sufficient, so long as there was sufficient residence after that date to meet the residency requirement.)
I'd guess that maxm's situation is more difficult than that, guessing that the deduction of the time probably reduces the total to less than 1095. If so, yep, there is a problem. But I do not know those details. The details matter, and that particular detail is not the only one that matters. There are many other factors which can influence how this goes for maxm.
Residency requirement versus physical presence requirement:
The residency aspect of the old law, the 3/4 residency requirement, was often understated if not overlooked. This arose because the primary manner of assessing residency was based on counting days physically present. Even in cases involving the application of a qualitative test (shortfall cases), the key consideration was how many days the applicant had been physically present in Canada.
It is worth remembering that the 3/4 rule was based on "at least three years of residence in Canada," to be calculated in the manner prescribed (subsection 5.1(c)(i), the half-day credit, and 5.1(c)(ii), the full day credit).
The new law, the 4/6 requirement, is explicitly a physical presence requirement.
It is worth noting, for example, that in the instruction quoted by alphazip, the days to count are days of residence, not mere presence. (The statute itself stated it this way: " . . . for every day during which the person was resident in Canada . . . " (subsection 5.(1)(c)(i) in the previous and applicable version of the Citizenship Act).
Bottom-line:
If and when CIC focuses on the issue about when the applicant established actual residence in Canada, beyond just being present in Canada, CIC's position, again, is to NOT count time visiting Canada prior to the date of establishing actual residence. This does not happen to all applicants who included visiting time in their calculation, but once CIC has identified the issue for a particular applicant, CIC's approach is to not count that time.
My guess is that CIC does this, that is focuses on and applies the strict rule, when there are additional doubts or questions as to the applicant's residency. That was clearly the underlying situation in the Jahanara Begum Khan case.
So it is not easy to forecast how CIC will approach maxm's case. If the Citizenship Officer ultimately deciding the case for CIC is favourably impressed and believes maxm deserves the grant of citizenship, perhaps the Citizenship Officer will not focus on this particular issue. And even if the Citizenship Officer is not satisfied and refers the case to a Citizenship Judge, the CJ may be persuaded that maxm should be approved for citizenship.
But there is no doubt about what the strict rule is, if CIC applies the strict rule: time visiting Canada before establishing residence in Canada will NOT count.
