Urgent Help Needed: Removal Order Issued and IRCC has sent a fairness letter to ultimately reject the application

[azi3020980]

Hi everyone,

I received a removal order based on missing residency days upon entering Canada. I did get a lawyer and appealed the decision to IAD which is pending a hearing. I know that citizenship can not be granted to those who are subject to removal orders.

My issue is that: I thought while the removal order is being appealed in the IAD, the citizenship application would be suspended (not rejected). In the fairness letter that I have received from IRCC, I have been given 30 days to reply or else they will make a decision based on the current situation (i.e. they will reject my application as I do not qualify anymore). I contacted my lawyer and surprisingly he has told me that nothing can be done. My lawyer was hired to only represent me for the IAD and not the citizenship portion of my case.

I need advice from seniors here: can my citizenship application be put on hold until IAD has a final decision on my case? Or, IRCC has every right to reject my application without waiting for the IAD decision? I greatly appreciate your thoughts.

 

[rafzy]

if you do not have sufficient days then there is nothing anyone can do... your application will be simply rejected

 

[sydcarton]

Hi everyone,

I received a removal order based on missing residency days upon entering Canada. I did get a lawyer and appealed the decision to IAD which is pending a hearing. I know that citizenship can not be granted to those who are subject to removal orders.

My issue is that: I thought while the removal order is being appealed in the IAD, the citizenship application would be suspended (not rejected). In the fairness letter that I have received from IRCC, I have been given 30 days to reply or else they will make a decision based on the current situation (i.e. they will reject my application as I do not qualify anymore). I contacted my lawyer and surprisingly he has told me that nothing can be done. My lawyer was hired to only represent me for the IAD and not the citizenship portion of my case.

I need advice from seniors here: can my citizenship application be put on hold until IAD has a final decision on my case? Or, IRCC has every right to reject my application without waiting for the IAD decision? I greatly appreciate your thoughts.

Sorry to hear this. Why did it escalate to a removal order if only residency days were missing?
Sounds like your application would be rejected regardless of the IAD decision.

 

[azi3020980]

I qualified when I applied for citizenship back in 2017. My application has been pending ever since and I was outside Canada since applying. When I recently returned to Canada, I was issued a removal order based on not having enough days in the past 5 years. It has nothing to do with my eligibility for citizenship when I applied in 2017.

 

[azi3020980]

So the issue is: does IRCC has the right to reject the application now that a removal order is being appealed at IAD? without waiting for the IAD decision? Again, when I applied in 2017, my number of physical days back then were correct.

 

[novascotia27]

So the issue is: does IRCC has the right to reject the application now that a removal order is being appealed at IAD? without waiting for the IAD decision? Again, when I applied in 2017, my number of physical days back then were correct.

The appeal doesn't mean your removal order is cancelled. You're still subject to removal from Canada, though, your appeal may delay this decision for a later date. IRCC, in my opinion, has all the rights to cancel or reject your citizenship application as you are not meeting a fundamental criteria of citizenship eligibility, which is not being subject to removal from Canada.

 

[novascotia27]

A question for you tho, why is your application non-routine? Lots of ppl seem to apply for citizenship, and then leave Canada for work or other reasons, and they usually just fly back to Canada for test/oath etc.

 

[Copingwithlife]

A question for you tho, why is your application non-routine? Lots of ppl seem to apply for citizenship, and then leave Canada for work or other reasons, and they usually just fly back to Canada for test/oath etc.

Just a wild guess, but there’s probably more to story then the o/p is letting on.
You know , along the same analogy as “ All that glitters ain’t gold .”

 

[robteix]

Lots of ppl seem to apply for citizenship, and then leave Canada for work or other reasons, and they usually just fly back to Canada for test/oath etc.

But if OP has been out of Canada since applying in 2017. That's 4 years. That means they've lost PR status, right?

My guess is OP has flown back to Canada and did something that prompted the IRCC to check their eligibility and since they didn't fulfill their residency requirements, their PR was lost and they have no visa to stay in Canada.

 

[Swift Turtle]

Wait, would IRCC really issue a removal order against a citizenship applicant just because s/he hasn't met a residency requirement?!? Wouldn't they just tell you to wait before applying again?

 

[Lex2019]

It is by far not a forum question. I would suggest the OP to research the regulations with regards to one's eligibility to be granted Cship when one has ceased to be a PR. Even though you seem to rightfully claim your Cship for a period of time that you had physically spent in the country prior to the application the fact that your time outside of the country afterwards has taken your residency status away. Dig into that direction. Again, and I can't overemphasize this: forums are not for legal advice. The fact that your Cship application has taken that long and assuming there are no side stories might play in your favor. Just assuming IRCC would have granted you Cship within normal timeframes would have allowed you to still be a PR back in the day. This might play in your favor, but again: if this is on the verge of going South completely and you seem to have a life outside of the country for many years why not consider dropping the application and just living the life you have today?

 

[robteix]

Wait, would IRCC really issue a removal order against a citizenship applicant just because s/he hasn't met a residency requirement?!? Wouldn't they just tell you to wait before applying again?

That's not the same residency requirement we're talking about. If you apply for citizenship without the requirement, they'd just return your application. That's not what OP is saying, though. OP says he DID had the requirement when he applied, but since then, he failed to keep his PR residency requirement (regardless of citizenship application, all permanent residents have to fulfill a residency requirement to keep PR status.) That's the latter one that OP says he didn't do, IIUC. It has nothing to do with his citizenship application.

And I totally agree that OP will not get an answer here. He already spoke with a lawyer and the lawyer gave him an answer. We in the forum won't give him a better one, I don't think

 

[frequent flyer]

Just to clarify to everyone .. IRCC did not issue the removal order, the border officer (CBSA) did. Mostly .. when the OP answered the question: when was the last time you have been in Canada? .. the officer found that they are not in compliance with the PR Residency Obligation .. hence the removal order.
As part of a citizenship application checks .. IRCC checks whether the applicant is still keeping their PR status. Apparently .. IRCC was notified with the removal order .. hence the procedure fairness letter.

Now to answer the OP's (@azi3020980) questions:
- It seems that IRCC has the right to reject your application. Simply .. since you are missing one of the basic requirements for being granted citizenship (i.e. Keeping PR status until oath day). And considering the apparent huge breach .. which means you are not likely to be in compliance again soon.
- Whether IRCC waits to the IAD decision or not seems up to them. Your best bet is to reply on time and in details to their letter and inform them of the appeal and ask them to wait. But still .. this will be up to them to decide and I do not think there is a high chance they will agree.

The most important part now is your appeal. You should focus on that. If you get a positive decision .. then you can think again of applying for citizenship later once you accumulate the needed days or ask IRCC to re-open you application .. which is not a straight forward path but from some rare reports it was done in the past.

Important Note
Lawyer up!

 

[dpenabill]

REMINDER: I am NOT an expert. I am not qualified to offer personal advice.

While I can cite some information and offer some observations, to be clear, whether or not to contest this, or what recourse might otherwise be available, is LAWYER-STUFF.

I can note, apart from the summary by @frequent flyer, with which I agree, there are significant parts of the commentary here, so far, that are erroneous, or at the least off the mark some. I will address some of that in a separate post.

I received a removal order based on missing residency days upon entering Canada. I did get a lawyer and appealed the decision to IAD which is pending a hearing. I know that citizenship can not be granted to those who are subject to removal orders.

My issue is that: I thought while the removal order is being appealed in the IAD, the citizenship application would be suspended (not rejected).

. . . can my citizenship application be put on hold until IAD has a final decision on my case? Or, IRCC has every right to reject my application without waiting for the IAD decision? I greatly appreciate your thoughts.

So the issue is: does IRCC has the right to reject the application now that a removal order is being appealed at IAD? without waiting for the IAD decision? Again, when I applied in 2017, my number of physical days back then were correct.

Short answer: Since you are the subject of a "removal order," you no longer meet the eligibility requirements for a grant of citizenship, which is a basis for denying the citizenship application.

I am not qualified to second guess your attorney or otherwise advise you in regards to what recourse you might have, other than to say of course the Citizenship Act provides that you may seek leave from the Federal Court to appeal a decision (to obtain review of the decision) denying the application for citizenship. That is, I cannot address the specifics of YOUR individual case, and thus even though I can point out legal process that MIGHT be available, I cannot offer any advice on whether you have much of a case or whether you should respond contesting this, or otherwise pursue legal recourse (in addition to an application for leave to obtain review it might be possible to make an application for mandamus . . . noting this is for a LAWYER stuff).

I can and will offer a longer explanation as to some of the relevant laws, policies, practices, and other related information.


LONGER EXPLANATION:
(starts somewhat simple but then gets weedy)

To qualify for a grant of citizenship pursuant to subsection 5(1) in the Citizenship Act (should link), the individual must (of course) be eligible at the time the application is made and REMAIN eligible right up to the moment the oath is taken. With some very limited exceptions, the Minister actually has NO AUTHORITY to grant citizenship to an individual who does not meet the qualifications.

One of the qualifications, to be eligible for a grant of citizenship, is prescribed in subsection 5(1)(f) in the Citizenship Act (should link), which says, rather simply, a qualified the person is someone who "is not under a removal order."

Additionally, making it clear that to be granted citizenship, the individual MUST REMAIN eligible right up to the moment the oath is taken, subsection 22(6) in the Citizenship Act (should link) also specifies:

Despite anything in this Act, a person shall not take the oath of citizenship if they . . . no longer meet the requirements of this Act for the grant of citizenship.​

Since you are under a removal order, you do not meet the 5(1) eligibility requirements, 5(1)(f) in particular. No expertise, no advanced studies in calculus necessary, to compute this equation.

Which brings this up:

"I thought while the removal order is being appealed in the IAD, the citizenship application would be suspended (not rejected)."​

Various anecdotal reports appear to suggest that suspending such applications may be a common practice. Or at least SOMETIMES is the practice. Not sure why, but one of the more persistent myths perpetuated in this forum is the proposition "XXX was OK for me, so XXX will be OK for you." That is NOT how things really work. NOT even close. How it goes for one person is at best an indicator of how things MIGHT go, NEVER a definitive indicator of how things will go.

In contrast, I have repeatedly cautioned that falling short of complying with the PR Residency Obligation while a citizenship application is in process can result in the application being denied.

When applications are suspended pending the outcome of collateral proceedings related to determining if the applicant is admissible, that is done pursuant to subsection 13.1 in the Citizenship Act (should link), the provision which gives the Minister authority to suspend processing "for as long as is necessary" for an applicant "who is the subject of an admissibility hearing under [IRPA], [to receive] the determination as to whether a removal order is to be made against the applicant."

As I noted, I have repeatedly cautioned that falling short of complying with the PR Residency Obligation while a citizenship application is in process can result in the application being denied. Note, though, I deliberately say "can result" rather than "will result." As already noted, it's basic logic, what "can" happen does not dictate what "will" happen. Outcomes VARY.

Why IRCC does not handle all these cases the same I cannot say, except to note that the underlying facts, and especially the underlying equities, always vary, so to the extent the law allows variable outcomes, it should be no surprise that outcomes vary.

What Does "Under a Removal Order" mean?​

There might be, just maybe, a question about whether a removal order, issued pursuant to subsection 44(1) IRPA (should link) for inadmissibility due to a breach of the PR RO, which is under appeal, constitutes being "under a removal order" as prescribed in 5(1)(f) Citizenship Act. Pending the appeal, such a removal order is NOT enforceable. It only becomes enforceable if the appeal is dropped, dismissed, or abandoned.

CAUTION: Again, this is LAWYER-STUFF. To a large extent I am speculating here. Riffing, one might say, in an effort to understand whether the fact IRCC suspends citizenship application processing in some of these cases (or at least, based mostly on anecdotal reporting here, appears to suspend processing) suggests there is such a question here.

My best understanding of the applicable statutory provisions (cited and linked above) is that being issued a "removal order" constitutes being "under a removal order," even though the removal order is not "enforceable" pending an appeal. But I am NOT an expert. I am NOT a Canadian lawyer. I do not have any formal training or professional experience in immigration or citizenship matters.

I do know that in older Federal Court cases, under previous versions of the law, the Federal Court upheld the denial of applications based on such removal orders while those orders were under appeal. Those cases were based on both previous versions of the requirements themselves, but also were applications subject to different provisions governing procedure, most (perhaps all, memory a bit rusty as to the precise procedural details) governed by the Citizenship Act prior to the adoption of subsection 13.1 which now governs when applications may be "suspended."

Moreover, contrary to something which is repeatedly, erroneously, asserted in this forum: the issuance of the 44(1) Report and Removal Order does NOT start the process for revoking PR status. It is THE FORMAL decision terminating status. It is subject to appeal, yes. The removal order is not enforceable pending the appeal, that is correct. BUT the decision to issue the removal order is the outcome of the "admissibility hearing." Seems clear that is the "determination" referenced in 13.1 Citizenship Act. And means the PR is "under" the removal order even though it is not enforceable pending appeal.


OTHERWISE . . . there are some rather salient negative headwinds, in the what-one-deserves (from the perspective of many if not most Canadians) vein, related to the applying-on-the-way-to-the-airport aspect.

 

[dpenabill]

Further Observations For Clarification:

So the issue is: does IRCC has the right to reject the application now that a removal order is being appealed at IAD? without waiting for the IAD decision? Again, when I applied in 2017, my number of physical days back then were correct.

This has been answered, at least to the extent it can be answered by non-lawyers. A PR "under" a removal order is NOT eligible for a grant of citizenship. Whether or when the removal order itself is enforceable is a separate matter. For context: there are scores of PRs and former PRs IN Canada for whom, in one way or another, process to enforce an issued removal order is stayed . . . the fact that an order is stayed (not enforceable), such as pending appeal or collateral processing, does not in itself eliminate the decision itself.

For further clarification . . .

As for the fact of meeting the presence requirement for citizenship at the time of applying, @robteix accurately explained:

OP says he DID had the requirement when he applied, but since then, he failed to keep his PR residency requirement (regardless of citizenship application, all permanent residents have to fulfill a residency requirement to keep PR status.)

What is not exactly right is . . .

But if OP has been out of Canada since applying in 2017. That's 4 years. That means they've lost PR status, right?

No. The PR Residency Obligation is NOT self-enforcing. Even PRs who have been outside Canada TEN years do not automatically lose their PR status. Absent renouncing status, they remain a PR UNLESS and UNTIL there is a formal adjudication, a formal determination, that the individual is inadmissible.

But otherwise, being outside Canada for more than three years means (subject to exceptions) a PR has failed to comply with the PR RO and is subject to proceedings to determine if the PR is in breach of the RO and therefore inadmissible, and if so, a decision that terminates PR status (unless set aside in an appeal).

My guess is OP has flown back to Canada and did something that prompted the IRCC to check their eligibility and since they didn't fulfill their residency requirements, their PR was lost and they have no visa to stay in Canada.

Here too, what is not quite right is that there is a difference between a decision to terminate PR status and when PR status is lost. PR status is NOT lost pending an appeal of a decision to terminate PR status.

REMINDER: RO compliance examinations typically occur in the context of the following events:

-- PoE examination for a PR arriving in Canada from abroad (but usually only when circumstances give border officials to have RO compliance concerns)​

-- application for PR Travel Document by a PR abroad without a valid PR card​

-- application for a new PR card​

-- application to sponsor a family member​

More About Still Being a PR Pending Appeal of Negative RO Decision:

Even if a visa office denies an application for a PR TD, based on a breach of the RO, or border officials (CBSA) issue a 44(1) Inadmissibility Report and a Departure or Removal Order (a "Departure Order" is a type of removal order), the individual remains a PR pending an appeal of the decision.

So the OP is still a Canadian Permanent Resident. Albeit a PR who is "under a removal order."

So the OP continues to meet the citizenship requirement to be a "PR," but does not meet the requirement to be a PR who is "not under a removal order."

A question for you tho, why is your application non-routine? Lots of ppl seem to apply for citizenship, and then leave Canada for work or other reasons, and they usually just fly back to Canada for test/oath etc.

To be frank, it is NOT clear how many people do this successfully. Anecdotal reports in the forum indicate many do. BUT other anecdotal reports indicate more than a few encounter problems. Federal Court decisions illustrate cases in which some have been denied citizenship.

There is a tendency in this forum to grossly understate or underestimate the RISKS involved in moving abroad while an application for citizenship is pending. I do not understand why, but there also seems to be a tendency here to dismiss as negative opinion (or even falsely accuse xenophobia) what are simply observations about how many Canadians feel regarding those they describe as "applying-on-the-way-to-the-airport," or those otherwise perceived to be "seeking-a-passport-of-convenience," and how this can influence the processing of a citizenship application by the total stranger bureaucrats who make the decisions.

Spoiler alert: does not help to be seen as gaming-the-system.