waivers of residency requirement - out of Canada for work

[Lux et Veritas]

I have applied for citizenship but I have not been here 1095 days in past 4 years, and I will never be able to be here that much until I retire. I'm a freelance consultant working on short-term overseas assignments - almost all my work is abroad. I'm in Canada enough to maintain residency but never enough to meet the 75%-of-4-years requirement.

I explained all this in great detail in my application. Just finished filling out a residency questionnaire in which I explained it all again, in more great detail, provided contracts for all my work in past four years, lots of data on time overseas, plus the usual info on my home here, community contacts, medical care, etc.

Has anyone applied for citizenship under similar circumstances? Any idea of the chances of getting it?

In January I spoke to an immigration lawyer who advised that I apply immediately - she said the chances were better under the old law, so I should get my application in before the new ones goes into effect. I did that.

Just wondering what others' experience is with this situation, if any.

As someone said, no chance: 0%. At this stage, anyone applying with less than 1095 (or 1460 when the new rules come into effect) is guaranteeing rejection, and so it's not worth it. Judges under the conservative government are more likely to be stringent especially with all that's happened already and your need to travel won't sway them in any way or shape. Now if you were working for the Canadian government in some capacity (Federal) that would be something else and even then it's doubtful they would make exceptions given how strict they have become.

 

[keesio]

When I first looked at this stuff on line, it said that those who work for a Canadian company and travel for their work could get a waiver. I travel for my work but am self-employed, not working for a Canadian company. The website may have changed since then.

This is true for PR still. But just PR

 

[dpenabill]

Some general observations, history, and conclusions:

Odds any given shortfall application will be successful appear to be quite low, even if the extent of the shortfall (number of days less than 1095 actually physically present (APP) in Canada) is relatively small.

Odds for applications with less than 900 days APP are probably near zero, with very, very few exceptions. Frankly, for applications now in process, I suspect the number below which the odds approach zero is much higher. (Reports in last couple of years reflect denials for falling just a few days short vastly exceeding any hint there is a chance of success for any shortfall.)

Odds for an applicant with a shortfall who applied sooner than four years after landing are also extremely low, and particularly so for an application made soon after passing the three-year basic residency threshold. For example, notwithstanding the extent of Canadian ties, the scenario posed by Feb2012 appears to have near zero chance of success; while the biggest factor is only 600 days APP, the fact the application was made with a shortfall just three years after landing also looms as a very negative factor. (Stuff happens; anomalies occur; so there remains some possibility of success . . . a rather remote possibility.)

Relative to the residency requirements for citizenship, there never has been an exception or waiver allowed for working abroad for a Canadian business. No CIC website has stated otherwise. As keesio noted, there is an exception, credit toward residency allowed, toward compliance with the PR Residency Obligation, for those PRs temporarily assigned abroad working for a Canadian business (with rather strict requirements for what constitutes such a business and strict requirements for what employment qualifies for this credit).

Reminder: older reports are not illustrative of current practices.

There are indeed scores and scores of shortfall applicants who eventually became citizens . . . but that was years ago. The trend toward a more strict application of the actual physical presence test began, yes it is easy to guess, at the least by the time Jason Kenney took the reins at CIC after Diane Finley (and possibly it began while Diane Finley was Minister of CIC).

In any event, a high percentage of current Citizenship Judges have received their appointment since Harper first formed a Conservative Government nine years ago and it seems likely only those inclined (if not outright committed) to applying the strict presence test have been given an appointment by Harper. Moreover, Harper now has populated the courts with many of his appointees, so it is no coincidence that one of his favourites, Donald Rennie, was appointed to the Federal Court and very soon after taking the bench issued the first of many Federal Court decisions (see the Martinez-Caro decision) announcing that the only valid interpretation of the residency requirement is that it requires three years of actual physical presence (this was back in early 2011). Former Federal Court Justice Rennie has more recently been promoted to the Court of Appeals, and he is the one who went out of his way not only to rule against Galati's challenge to the SCCA but to emphatically articulate a profoundly Conservative oriented view regarding the Parliament's capacity to control and revoke citizenship status.

The blind could read this handwriting on the wall: there is no doubt what the current government's approach is . . . and this was finally punctuated by the adoption of Bill C-24 (the SCCA) which not only overtly, explicitly, eliminated any judicial allowance for an exception to the strict physical presence test, it increased the minimum period of presence by a full third (and for those who have come to Canada first on work or study permits, it in effect doubled the post-landing residency requirement).

In terms of statistics, actual numbers, we are largely in the dark. So it cannot be said that for now there is absolutely no chance a shortfall application will succeed. There is at least a legal possibility.

By the way, the reason there remains a legal possibility is that citizenship cases could not be appealed past the Federal Court, but Federal Court decisions have little precedence weight . . . and this is what allowed then Justice Rennie, and others like Justice Snider, to go against three decades of contrary decisions affirming the availability of a qualitative test for residency, but also is why those decisions by Justice Rennie, Snider, Zinn, among others, have not totally closed the door on what are commonly referred to as Koo cases.

And while I forget the specific case and the name of the judge, there have been decisions this year which affirm that the qualitative test (again, usually the Koo test) is legally available . . . but to be frank, it has been a long, long while since any Federal Court decision has affirmed the approval of a shortfall applicant, and the cases we have seen in the last year plus are applications at least as old as 2012 (most older). That is, even for applications made in 2010 and 2011, certainly by 2012, the door was being closed on the vast majority of shortfall applications.

The above is why many who comment here simply conclude there is absolutely NO chance at all for a shortfall application. They might be right. The legal possibility may not reflect any practical possibility at all.

When I first looked at this stuff on line, it said that those who work for a Canadian company and travel for their work could get a waiver. I travel for my work but am self-employed, not working for a Canadian company. The website may have changed since then.

Not sure what source you were looking at. As already noted, no CIC source regarding citizenship stated this in the last decade, about that I am certain. There has been no change.

That is explicitly about assessing residency for citizenship.

Again, for purposes of the PR Residency Obligation, yes there is an explicit exception which allows PRs temporarily assigned abroad working for a Canadian business (with rather strict requirements for what constitutes such a business) credit toward the PR RO for that time. In recent years, the practical scope of this has been dramatically trimmed. The rule itself has not changed, but CIC has been applying it far more strictly than in the past, with more intensive and critical scrutiny of what businesses meet the requirements, as well as to what sorts of assignments, and what employments, with a lot of emphasis on the temporary nature of the assignment and that the employee's core employment is in Canada and the PR will resume a position in Canada at the conclusion of the assignment. Fact that the employing business is organized in Canada comes no where near close enough.

Exceptions to the residence requirement are made for employment-related issues.

I'm actually surprised that they make exceptions for airline employees. My understanding is that the only job related exceptions are for government jobs (like working for the Canadian military abroad, etc). I didn't think they made any exceptions for people employed by a private company.

Lawyers earn their trade from the ambiguity of terms, including especially terms like "exceptions," and relative to ambiguity, the use of the term "exceptions" in this context is, pardon the expression, no exception.

A determination that an applicant has met the residency requirement based on a qualitative test, rather than the actual physical presence (APP) test, is in itself an exception. In the more distant past (at least four plus years ago), this exception (the grant of citizenship to an applicant with a shortfall in APP) appears to have been almost common, and indeed shortfall cases dominated the citizenship cases seen in Federal Court decisions. In the more recent past, however, it appears that few shortfall cases have been sucessful and really are very much the exception.

There is another sense in which "exception" is used as a legal term, a more definitive sort of exception. A good example is the exception which specifically gives a PR credit for presence in Canada, toward the PR Residency Obligation, for time the PR is accompanying a Canadian citizen spouse abroad. This is a specific exception defined by the applicable law.

The "exception" allowed some shortfall applicants is not this sort, but more a discretionary option available to the decision-maker, the Citizenship Judge, in circumstances the CJ decides (1) warrant consideration of qualitative factors in determining residency, and (2) establish a life sufficiently centralized in Canada justifying counting time abroad as nonetheless resident-in-Canada.

The best outline of factors weighing in favour of the qualitative test and residency were stated in the well-known Koo case, which have been restated in several dozen Federal Court decisions regarding citizenship (up to around three or four years ago . . . hardly mentioned in the last couple years), and which was a significant part of the CP 5 Residence Operation Manual, which is no longer applicable (and no longer available at the CIC site).

In any event, there never was a definitive exception giving credit as time resident in Canada for time abroad working for a Canadian business, let alone for absences due to working abroad.

Exceptions to the residence requirement are made for employment-related issues. One of my family members is an airline employee, and due to their flight schedule which takes them out of Canada at least twice a month, they are also never able to meet the 1,095 days requirement. Fellow airline employees have been through the process and have been successful in obtaining an exception to the rule, so there is precedent for someone in your situation.

As long as you can prove to CIC that you have substantial ties to Canada and that Canada is your primary home, you should be fine. It sounds like you have taken the time to provide this evidence, so I imagine you have a convincing case.

To the extent some airline employees working international flights were allowed an "exception," that would have been the more general, discretionary sort of exception pursuant to which Citizenship Judges could find that the applicant met the residency requirement despite the extent of absences due to the employment.

That should not be confused with a statutorily defined exception. And it had to do more with the overall facts and circumstances for the individual applicant involved than it did with what sort of employment was involved.

To what extent that might, possibly, still be available is uncertain. It is certain, however, that CIC generally pushes for a strict application of the APP test and that many if not most if not nearly all the Citizenship Judges are usually if not nearly always applying the APP test. At best, at the most, it seems very apparent that any exceptions now really are an exception, the extraordinary case.

And, again, those who say there is no chance may indeed be right.

 

[bambino]

Also, keep in mind that Citizenship Judges are by and large political appointees, and in general share the outlook of the Ministers who appointed them. The Conservatives have been in power for nearly a decade, so the "bench" (quotation mark because these people are not real judges) is now stacked with political hacks.

Exhibit "A", the current Edmonton CJ, who had been very active in the PC, was appointed by Jason Kenney. Her daughter worked for him, and her son was
Director of Regional Communications for an Edmonton MP, Rona Ambrose. I have seen all decisions by this particular CJ up to December of last year, the date of the ATIP request, and since August, 2014 she had refused every single application which required a hearing before her.

I'll leave it up to you to make your own conclusions...

 

[neutral]

Neutral, I spoke to a lawyer before I sent in my application. She said that when I get to the judge stage she would not be allowed to speak for me or on my behalf. She could be there, but not say things. Are you suggesting differently? Or just that she could prep me, advise me on what the judge might say and how to respond, etc.?

Yeah, there is no other option and you have nothing to lose neither. If she is prepared and has experience in these kind of cases, she knows what the judge is going to ask and what kind of answer give you better odds. Taking some acting courses to impress the judge would be very useful

Good luck for the outcome.

 

[dpenabill]

For anyone with a *shortfall* application pending or likely to make a shortfall application before the revised requirements take effect:


Good News:

The Good News is that as recently as February 2014 a Citizenship Judge overtly applied the qualitative test for residency based on the Koo criteria, and did so for an applicant more than five hundred days short of meeting the actual physical presence test (1095 days APP).

This was in the Farid Ameziane case, a decision by Federal Court Justice René LeBlanc.

Bad News:

The Bad News is that the CJ denied approval for citizenship and Justice LeBlanc affirmed the validity of the CJ's decision.

Moreover, this is particularly Bad News for those whose shortfall is due to work abroad.

In the Farid Ameziane case, the applicant was abroad only for the purpose of employment, and otherwise all other aspects of his life were in Canada: wife and children, home and personal possessions, banking, payment of taxes, involvement in volunteering, all in Canada. He had no connection to the place abroad where he was working other than the employment itself (stayed in employer's trailers on site while abroad, for example, not even having a rental residence abroad).

Other factors may be important, such as the extent of the absence for example (outside Canada half the time overall), and the fact that the employment was in one country (which may elevate the weight given the connection to that country in contrast to the argument his life was centralized in Canada).


Caution: Most indications suggest few Citizenship Judges are willing to apply any residency test other than the actual physical presence (APP) test, and that all CJs usually apply the APP test. So the fact that on some occasions, this or that CJ has been persuaded to apply the Koo test offers very little hope for shortfall applicants.

While this Farid Ameziane decision does not mean absences due to work alone will never allow for approval based on a qualitative test, my sense is it reflects that extended absences due to work abroad are not likely to be counted as time resident in Canada, and especially so if the employment itself is not temporary . . .
. . . remember, to be successful, the shortfall applicant must still have accumulated at least 1095 days resident in Canada, allowing for credit toward time resident in Canada for time abroad.

Thus, not including time abroad for employment makes sense. As Justice LeBlanc discusses, the place one works is itself a major connection to that place. And this is particularly so if the employment itself is not for a Canadian employer.



It is also worth noting that the Program Delivery Instructions now suggest that a shortfall case should be referred to a Citizenship Judge for a decision. While the PDI is not particularly clear, in context it seems to suggest that, in effect, RQ may be virtually guaranteed and that a long-haul residency case is very likely, the case ultimately going to a hearing with a CJ.
See PDI "Referring applications to a citizenship judge" in particular.

For all current PDIs regarding decision making in citizenship cases, see PDI contents/links for Citizenship decision making.




Notes:

*shortfall* -- this is a reference to applicants with fewer than 1095 days of actual physical presence, that is, those relying on meeting the basic residency eligibility threshold but falling short of the APP test.

*resident-in-Canada* -- to be qualified for citizenship, the PR must have been "resident in Canada" for at least three years, or 1095 days, within the four years preceding the date of the application.

"Resident in Canada" for three years is not necessarily the same as three years actually physically present. Three years APP has been repeatedly ruled to absolutely constitute three years "resident-in-Canada." In contrast, a shortfall applicant (applicant who was not APP for at least 1095 days) may be qualified by proving he or she was "resident-in-Canada" for at least 1095 days . . . thus, in effect, this means the shortfall applicant must persuade the CJ that credit toward time "resident-in-Canada" should be given for time absent, at least enough of the time spent abroad to make up the APP shortfall.

 

[WiseGuy711]

Zero chances.
The Judge has the power to grant the citizenship regardless meeting requirements, but I doubt will do.
Why do you need the citizenship if it appears is not preventing you to travel anywhere?

Not true, I had clients with 1/3 the 1095 and they still got the citizenship. It happens a lot in fact lol. And yes the chances are much better under the current rules as you can pool your days and the requirement is 1095 days rather than 1460.