This is a highly analytical post regarding multiple aspects of what is involved for those on-the-cusp, and hence is another very long post.
The short answer to most of the questions raised is, generally, to be patient, wait for real news about when the revised residency requirements will come into force, and make sure qualifications are fully met, including APP > 1095 plus at least some buffer, and be sure to submit the application timely if possible (otherwise, really be patient and wait).
The longer explanation:
The date continues to be a huge if; that is, it is still unknown. The actual date the revised provisions will come into force is still not publicly known, and there are still no credible rumours. Most continue to think that June and July are the most likely months, many betting it will be July 1, some like me betting it will be June 1 (almost an even bet with July 1 in my bookie's book), others suggesting it will be June 19, but none of us know, and it is unlikely even upper level supervisors at CIC yet know for sure.
While it is possible there will be no advance notice, it is more likely there will be at least some credible rumours sometime before the date, and quite likely there will be at least a few days advance notice.
My experience with courier service in Canada tends to doubt the efficacy of attempting to send the application any significant distance with guaranteed 24 hour delivery service, but I am not familiar with what is available in the major business districts for Toronto or Montreal.
Reminders:
-- to be qualified, the PR must meet the requirements as of the day before the application is signed (thus, a PR who meets the qualifications as of June 28 cannot sign and submit the application until June 29)
-- post-dated applications are deemed unsigned and will be returned to the applicant . . . and thus not made until the date the application is resubmitted
-- applications based on 1097 or 1096 days APP, and for sure those based on 1095 days, are bound to be scrutinized very closely, with an elevated risk for not just RQ but for CIC skepticism; in this regard, note that in the last two years the majority of cases seen in the Federal Courts are applicants asserting they met the 1095 days APP test but were denied approval based on the conclusion they failed to establish those days
-- applications made in the last month under current requirements are also likely, in general, to be more closely scrutinized
Regarding the post-dated application:
For some, perhaps many, the temptation is going to be to complete and sign the application as of June 29, but send it off the week before so that it arrives at CIC Sydney by June 30. Again, CIC deems a post-dated application as unsigned and will return it to the applicant.
To what extent will CIC check for this and strictly enforce the policy if, say, the application is received on June 30th, signed as of June 29th, but was put into the courier system before June 29th?
I do not know. I do know that CIC retains the original packaging the application arrives in (physical file ATIP responses include copy of it). I believe that the initial screening of the application includes a comparison of information on the package and information in the application (including, for example, location package sent from, date sent, and so on). But I am not sure of this. There are multiple aspects being assessed in this regard, CIC looking for indications of undisclosed representatives for example, indications of suspect addresses, comparisons of handwriting, and so on. Obviously, the extent to which there is such scrutiny will vary greatly . . . some applications perfunctorily examined with little more than a glance, some scrutinized in much detail.
Probably safe to bet that last minute applications, particularly those barely meeting the 1095 APP test, will tend to get more of the latter treatment, the close examination.
Thousands will be cut-off by just a few days:
There is no getting around this. Whatever the date the Governor in Council orders the revised sections to come into force, thousands of PRs will be cut off by just a few days.
For the majority this will mean approximately another year of waiting to apply. For some, those who under the current provisions can include credit for time in Canada prior to date of landing, the wait will be longer (having lost the pre-landing credit).
No way around it for those cut off. And, particularly for the latter group (those relying on pre-landing credits), applications based on basic residency falling short of APP for 1095 days have very little chance of being successful.
Overall, for the PR who does not become eligible until June 27 or June 28:
First, I would suggest that by the middle of the June we should have a much better idea if July 1st is the more or less most likely date the changes will take effect (if they are not already in effect by then), and that we will probably know with some certainty by at least a week prior. So there is little point in making a dedicated effort to make a firm decision any sooner, subject of course to the possibility that there is definitive news of the date sooner.
If the end of June approaches and the odds are still high it will be July 1st, then I suppose, if indeed a way can be found to sign and submit the application on June 29 and send it so that delivery is guaranteed, during business hours, on June 30, some will choose to make the extra effort to do so.
I doubt the efficacy of this. The odds of encountering an unfriendly processing of the application seem high to me, too high to make it a worthwhile effort. Sure, if CIC concludes that the applicant was APP at least 1095 days, that means the residency requirement is satisfied, citizenhip should follow (assuming all other qualifications met).
But that is another huge IF: if CIC or ultimately a CJ (if CIC is not satisfied) find that the applicant has met the burden of proving at least 1095 days of APP.
This is typically phrased as follows:
Has the applicant shown, by a preponderance of probability rule, the applicant has been physically present in Canada for a minimum of 1,095 days [during the relevant time period]?
Again, most of the Federal Court citizenship cases decided in the last couple years are cases in which the applicant declared, claimed, and contested having actually met this test, but CIC and a CJ found to the contrary.
A couple very recent decisions by Justice Locke illustrate, I think, what applicants can be up against, decisions which to my view suggest the level of scrutiny that CIC and CJs have been subjecting applicants to even before the impending implementation of the new requirements.
See for example Justice Locke's decision in the Miji case. The applicant reported 1193 days of actual physical presence. (A buffer of more than three months!) The applicant is essentially given RQ twice, once by CIC, and again (in a request for specific documents) by the CJ at the time of the hearing. It is worth looking at the list of information and documentation this applicant submitted in support of the application and residency. I submit they are extensive.
In the El-Husseini case there was a much smaller buffer, merely 1106 days APP declared accumulated (11 day buffer). Here too the applicant submitted quite a lot of documentation to support the declared physical presence.
Both these cases resulted in the grant of the appeal. The irony is that it appears to me that Justice Locke's reasoning*** is as much based on abstract technicality in contrast to what, I suspect, was a general sense that the decision was unfair, as was the CJs decisions going the other way (citing the preponderance of probability proof rule but apparently, if not obviously, the respective CJ decision being more about just not believing the applicant).
*** Note that judges will almost universally (at least in North American venues) protest that they do not do such things, that is that they do not search for and apply technical reasons to justify a decision based on what they feel is right or wrong, and they will insist that their stated reasons are their actual reasons. My parents made more convincing arguments for the reality of Santa Claus.
The granting of the appeal in these cases should be of little comfort, however, recognizing that many other Federal Court justices, such as Rennie, Snider, Zinn, LeBlanc, among others, clearly would have decided the case against the applicant . . . and recognizing the extent to which CIC is pushing for the denial of citizenship if CIC has doubts about whether the applicant met the APP test.
It is worth emphasizing that this is about doubts, not actual direct evidence, let alone persuasive proof, that the applicant was not in Canada all the days the applicant claims to have been in Canada. If CIC merely doubts the residency declaration, the application is in trouble and faces a substantial risk of being denied.
Of course how it goes for any particular individual will depend on the specifics of that individual's case. It is impossible to enumerate definitive criteria which will tip the scales at CIC toward the degree of doubt that CIC challenges, or outright opposes, the grant of citizenship.
Efficacy of making a shortfall application:
Speaking of decisions based on a technical ground, for those contemplating making a shortfall application (based on meeting the basic residency threshold but falling short of 1095 days APP), there was the YOUSEF MUSTAFA BANI AHMAD case last year (see 2014 FC 898) in which the following facts were well established:
-- applicant living in Canada since 1999
-- became PR October 2006
-- applied for citizenship July 11, 2009
-- applied with 1088 days APP (seven days short)
--the Citizenship Judge APPROVED the application
-- applicant owned and operated a restaurant in Toronto
-- wife in Canada, three of four children born in Canada
-- owned own home where applicant lives
-- extended family also established in Canada
Justice LeBlanc, however, granted the appeal by CIC because the Citizenship Judge did not explicitly name the qualitative test applied.
What should jump out from this case, however, for those contemplating applying with a shortfall, is the contrast between how well and long established this individual was in Canada compared with the effort expended by CIC to deny this individual citizenship!
There is no hint of a credibility issue. No hint that this individual was any other than an immigrant who had long settled in Canada.
Yet CIC pushed to deny this individual citizenship, even after a Citizenship Judge had concluded he should be granted citizenship, based on his being a mere seven days short of 1095 APP.
I do not mean to suggest that every shortfall will encounter this level of opposition from CIC. Perhaps there are some underlying credibility issues not alluded to in the official decision. But it is at least a big clue.
The short answer to most of the questions raised is, generally, to be patient, wait for real news about when the revised residency requirements will come into force, and make sure qualifications are fully met, including APP > 1095 plus at least some buffer, and be sure to submit the application timely if possible (otherwise, really be patient and wait).
The longer explanation:
IF, if the revised section 5(1) of the Citizenship Act comes into force on July 1, 2015, an application that is received at CIC Sydney any time after deliveries are accepted on June 30th will be processed pursuant to the requirements prescribed in the new section 5(1)(c) (4/6 rule) and 5(1)(c.1) (intent clause).oldfriend said:
The date continues to be a huge if; that is, it is still unknown. The actual date the revised provisions will come into force is still not publicly known, and there are still no credible rumours. Most continue to think that June and July are the most likely months, many betting it will be July 1, some like me betting it will be June 1 (almost an even bet with July 1 in my bookie's book), others suggesting it will be June 19, but none of us know, and it is unlikely even upper level supervisors at CIC yet know for sure.
While it is possible there will be no advance notice, it is more likely there will be at least some credible rumours sometime before the date, and quite likely there will be at least a few days advance notice.
My experience with courier service in Canada tends to doubt the efficacy of attempting to send the application any significant distance with guaranteed 24 hour delivery service, but I am not familiar with what is available in the major business districts for Toronto or Montreal.
Reminders:
-- to be qualified, the PR must meet the requirements as of the day before the application is signed (thus, a PR who meets the qualifications as of June 28 cannot sign and submit the application until June 29)
-- post-dated applications are deemed unsigned and will be returned to the applicant . . . and thus not made until the date the application is resubmitted
-- applications based on 1097 or 1096 days APP, and for sure those based on 1095 days, are bound to be scrutinized very closely, with an elevated risk for not just RQ but for CIC skepticism; in this regard, note that in the last two years the majority of cases seen in the Federal Courts are applicants asserting they met the 1095 days APP test but were denied approval based on the conclusion they failed to establish those days
-- applications made in the last month under current requirements are also likely, in general, to be more closely scrutinized
Regarding the post-dated application:
For some, perhaps many, the temptation is going to be to complete and sign the application as of June 29, but send it off the week before so that it arrives at CIC Sydney by June 30. Again, CIC deems a post-dated application as unsigned and will return it to the applicant.
To what extent will CIC check for this and strictly enforce the policy if, say, the application is received on June 30th, signed as of June 29th, but was put into the courier system before June 29th?
I do not know. I do know that CIC retains the original packaging the application arrives in (physical file ATIP responses include copy of it). I believe that the initial screening of the application includes a comparison of information on the package and information in the application (including, for example, location package sent from, date sent, and so on). But I am not sure of this. There are multiple aspects being assessed in this regard, CIC looking for indications of undisclosed representatives for example, indications of suspect addresses, comparisons of handwriting, and so on. Obviously, the extent to which there is such scrutiny will vary greatly . . . some applications perfunctorily examined with little more than a glance, some scrutinized in much detail.
Probably safe to bet that last minute applications, particularly those barely meeting the 1095 APP test, will tend to get more of the latter treatment, the close examination.
Thousands will be cut-off by just a few days:
There is no getting around this. Whatever the date the Governor in Council orders the revised sections to come into force, thousands of PRs will be cut off by just a few days.
For the majority this will mean approximately another year of waiting to apply. For some, those who under the current provisions can include credit for time in Canada prior to date of landing, the wait will be longer (having lost the pre-landing credit).
No way around it for those cut off. And, particularly for the latter group (those relying on pre-landing credits), applications based on basic residency falling short of APP for 1095 days have very little chance of being successful.
Overall, for the PR who does not become eligible until June 27 or June 28:
First, I would suggest that by the middle of the June we should have a much better idea if July 1st is the more or less most likely date the changes will take effect (if they are not already in effect by then), and that we will probably know with some certainty by at least a week prior. So there is little point in making a dedicated effort to make a firm decision any sooner, subject of course to the possibility that there is definitive news of the date sooner.
If the end of June approaches and the odds are still high it will be July 1st, then I suppose, if indeed a way can be found to sign and submit the application on June 29 and send it so that delivery is guaranteed, during business hours, on June 30, some will choose to make the extra effort to do so.
I doubt the efficacy of this. The odds of encountering an unfriendly processing of the application seem high to me, too high to make it a worthwhile effort. Sure, if CIC concludes that the applicant was APP at least 1095 days, that means the residency requirement is satisfied, citizenhip should follow (assuming all other qualifications met).
But that is another huge IF: if CIC or ultimately a CJ (if CIC is not satisfied) find that the applicant has met the burden of proving at least 1095 days of APP.
This is typically phrased as follows:
Has the applicant shown, by a preponderance of probability rule, the applicant has been physically present in Canada for a minimum of 1,095 days [during the relevant time period]?
Again, most of the Federal Court citizenship cases decided in the last couple years are cases in which the applicant declared, claimed, and contested having actually met this test, but CIC and a CJ found to the contrary.
A couple very recent decisions by Justice Locke illustrate, I think, what applicants can be up against, decisions which to my view suggest the level of scrutiny that CIC and CJs have been subjecting applicants to even before the impending implementation of the new requirements.
See for example Justice Locke's decision in the Miji case. The applicant reported 1193 days of actual physical presence. (A buffer of more than three months!) The applicant is essentially given RQ twice, once by CIC, and again (in a request for specific documents) by the CJ at the time of the hearing. It is worth looking at the list of information and documentation this applicant submitted in support of the application and residency. I submit they are extensive.
In the El-Husseini case there was a much smaller buffer, merely 1106 days APP declared accumulated (11 day buffer). Here too the applicant submitted quite a lot of documentation to support the declared physical presence.
Both these cases resulted in the grant of the appeal. The irony is that it appears to me that Justice Locke's reasoning*** is as much based on abstract technicality in contrast to what, I suspect, was a general sense that the decision was unfair, as was the CJs decisions going the other way (citing the preponderance of probability proof rule but apparently, if not obviously, the respective CJ decision being more about just not believing the applicant).
*** Note that judges will almost universally (at least in North American venues) protest that they do not do such things, that is that they do not search for and apply technical reasons to justify a decision based on what they feel is right or wrong, and they will insist that their stated reasons are their actual reasons. My parents made more convincing arguments for the reality of Santa Claus.
The granting of the appeal in these cases should be of little comfort, however, recognizing that many other Federal Court justices, such as Rennie, Snider, Zinn, LeBlanc, among others, clearly would have decided the case against the applicant . . . and recognizing the extent to which CIC is pushing for the denial of citizenship if CIC has doubts about whether the applicant met the APP test.
It is worth emphasizing that this is about doubts, not actual direct evidence, let alone persuasive proof, that the applicant was not in Canada all the days the applicant claims to have been in Canada. If CIC merely doubts the residency declaration, the application is in trouble and faces a substantial risk of being denied.
Of course how it goes for any particular individual will depend on the specifics of that individual's case. It is impossible to enumerate definitive criteria which will tip the scales at CIC toward the degree of doubt that CIC challenges, or outright opposes, the grant of citizenship.
Efficacy of making a shortfall application:
Speaking of decisions based on a technical ground, for those contemplating making a shortfall application (based on meeting the basic residency threshold but falling short of 1095 days APP), there was the YOUSEF MUSTAFA BANI AHMAD case last year (see 2014 FC 898) in which the following facts were well established:
-- applicant living in Canada since 1999
-- became PR October 2006
-- applied for citizenship July 11, 2009
-- applied with 1088 days APP (seven days short)
--the Citizenship Judge APPROVED the application
-- applicant owned and operated a restaurant in Toronto
-- wife in Canada, three of four children born in Canada
-- owned own home where applicant lives
-- extended family also established in Canada
Justice LeBlanc, however, granted the appeal by CIC because the Citizenship Judge did not explicitly name the qualitative test applied.
What should jump out from this case, however, for those contemplating applying with a shortfall, is the contrast between how well and long established this individual was in Canada compared with the effort expended by CIC to deny this individual citizenship!
There is no hint of a credibility issue. No hint that this individual was any other than an immigrant who had long settled in Canada.
Yet CIC pushed to deny this individual citizenship, even after a Citizenship Judge had concluded he should be granted citizenship, based on his being a mere seven days short of 1095 APP.
I do not mean to suggest that every shortfall will encounter this level of opposition from CIC. Perhaps there are some underlying credibility issues not alluded to in the official decision. But it is at least a big clue.