Apart from concurring with posts affirming that the old law (3/4 rule, credit for pre-landing time, et al) governs any
complete application that has, as of today, been received by CIC at Sydney . . .
Presence in Canada pending processing of application versus "intent to reside" requirement:
ERJOPA said:
2.I have always had the feeling that the CIC in Alberta is already using the "intent to reside" by delaying our applications after transfer to re-do our background checks/clearances to show our "intent". Would this be true?
To be clear, section 5(1)(c.1) (the oft called "intent requirement," to be effective tomorrow, June 11, 2015), will only apply to applications not received and accepted as of or before today (June 10, 2015).
It has
no application, directly or indirectly, to any application already in process, already received and accepted as of today.
Thus, there can be no practice or policy, in the local office or otherwise, which is engaged in assessing an applicant's "intent" for any application now in process.
However, for several
years CIC has been screening for and identifying
some applicants as having left Canada to live abroad while the application is in process, or otherwise, as at least one Federal Court Justice described, having
applied-on-the-way-to-the-airport. Being identified as such does
NOT disqualify the applicant. It is, however, a factor which can (often will, when CIC catches it) lead to additional scrutiny, including the issuance of RQ.
There has been no indication that CIC or any of the local offices have deliberately delayed processing generally in order to more thoroughly identify (catch) applicants who are not continuing to reside in Canada. There has been some indication, at least in a number of specific cases, that
AFTER CIC has identified an applicant as one who is already living abroad, that there has been a delay in processing while additional inquiries are made, including background checks. Such delays are probably incidental to CIC having identified a reason to inquire or investigate more thoroughly and not a practice to intentionally delay processing.
That said, in a very small number of cases, the length of the delay and the lack of CIC taking any action on the application, until apparently the applicant was physically returning to Canada, suggested that for
that specific individual CIC had probably flagged FOSS so that a PR Residency Obligation examination would be conducted at the POE upon the individual's attempt to enter Canada and CIC may have put the application on hold until that happened. It needs to be emphasized this has been apparent in only a very, very few cases, as seen in Federal Court decisions related to citizenship applicants issued a Removal Order or denied a PR Travel Document (these have arisen in the context of both mandamus actions and in appeals of negative citizenship decisions based on issuance of Removal Orders).
Additionally, in recent years CIC has modified policies related to test no-shows and delayed responses to requests for information or documents, in conjunction with what appears to be a policy of only giving applicants a relatively minimal amount of notice for scheduled events like the test or an interview, which are clearly, in a very significant part, an effort to make it more difficult for applicants living outside Canada. In particular, for example, failure to appear for a second-scheduled test due to being abroad and unable to return to Canada in time for the test, is explicitly
NOT an acceptable excuse, and the application will be terminated as abandoned.
While many of the measures which, in essence, have targeted applicants identified as potentially being among those who have
applied-on-the-way-to-the-airport, were implemented in recent years, actually CIC has long had a policy of screening applicants more thoroughly if they are identified as living abroad while the application is pending. For example, under the Operational Bulletin issued in
2005 (before Harper even), subsequently incorporated into the Operational Manual governing assessment of residency, which specified "reasons to question residency" (sometimes referred to as "risk indicators"), stamps in a passport indicating a return to Canada just in time to take the test or attend the interview were considered a reason to question residency. While this guideline, basically outlining reasons to issue RQ, was largely replaced in 2012 by OB 407 and the specific triage criteria listed in the File Requirements Checklist, if anything it has been apparent that CIC has continued to screen for indications an applicant is living abroad and imposed additional hurdles when the applicant is identified as living or working abroad . . . again, despite the fact that there is
nothing at all disqualifying about living abroad after applying (under the old law) so long as the applicant continues to be in compliance with the PR Residency Obligation.
Why screening for applicants who have applied-on-the-way-to-the-airport (in effect, not literally)
is relevant to the intent to reside requirement:
There were probably a number of factors which led this government to incorporate an intent element into qualifying for citizenship. But targeting the applicant who
applies-on-the-way-to-the-airport is probably the dominant purpose, along with discouraging applicants in effect planning to
take-the-oath-on-the-way-to-the-airport.
Since the manner in which CIC has, for years, targeted (for elevated scrutiny) those thought to be (by CIC)
applying-on-the-way-to-the-airport is consistent with the objective underlying the
intent to reside requirement, there have been a number of forum reports suggesting that CIC has adopted the
intent to reside requirement as policy even for applicants to whom the
intent to reside requirement does
not apply.
This is largely a misunderstanding about the main difference between the two: for those applicants who apply after tomorrow (June 11, 2015), living abroad while the application is pending can be an outright ground for denying the application, since the
intent to reside requirement actually requires the intent to
continue to reside in Canada and of course it is logically impossible to have an intent to continue to reside in Canda if one is not currently residing in Canada. That is, living abroad, for those subject to the
intent to reside requirement, can be
disqualifying.
Living abroad for applicants with their application now in process is not, and in itself
cannot be disqualifying. It can lead to more difficult and lengthy processing, but cannot be, itself, a reason to deny citizenship.
