catteau said:
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.
Overall:
I disagree with those who categorically state there is zero chance, but it is probably safe to say that in general such cases have a low chance of success these days, and given the nature of your employment (but depending on other factors), yours in particular appears to have low odds of being successful.
I suspect the lawyer's
fifty-fifty characterization really meant it could go either way, and was not really about the odds. Overall, for example, the odds are almost certainly way, way less than fifty-fifty for a shortfall application (but not zero as some here urge).
Some
shortfall applicants have compellingly strong cases. If a lawyer analyzed the particulars of your case, concluded it is a very strong case notwithstanding being short of 1095 days actual presence, then
fifty-fifty odds would make sense. Which is to say, to be clear, that if your case is particularly strong,
fifty-fifty odds are about as good as the odds can be. (For a
shortfall application.)
Most
shortfall cases are not compellingly strong cases. Many appear to largely be applications simply submitted too soon, premature at best. Indeed, many appear to be applications made prior to having even four full years of basic residency, let alone after having established
a substantial history of a life centralized in Canada.
Whatever the approach was prior to Harper forming the government (going back to 2006), in the last five years it is clear that grants of citizenship to
shortfall applicants has been the
exception, based on extraordinary circumstances. And it is clear that the extent to which the successful applicant must demonstrate compelling reasons for an
exception to be made has increased a great deal in the last couple years.
They are difficult cases to make.
Note: while there are still multiple tests for determining residency, the practical reality is that there are two types of test, the
APP test and a qualitative test.
-- the
APP test, more than 1095 days actually physically present
APP test, is the dominant, and by far most utilized test,
-- and then there are variations of a qualitative test with a
life centralized in Canada being the essential, necessary core . . . and just to put this in context, obviously it is difficult to fully demonstrate a life centralized in Canada for anyone who has spent the vast majority of their life outside Canada and only in the last few years has established a residence in Canada and even then has spent more than a quarter of their time outside Canada . . . without even getting into whether or not the reasons for the time outside Canada are of an extraordinary nature warranting counting that time as essentially, nonetheless, as time in Canada.
Context relative to upcoming change in the requirements: more relaxed ratio coming.
It is worth noting that when the changes included in the
SCCA finally are implemented (should be within the next few weeks or months), the actual presence test will allow for more flexibility. Currently, as you have noted, a PR must spend 75% of his or her time in Canada to satisfy the physical presence test for residency. When the new requirements are in force, a PR will only need to spend 67% of his or her time in Canada in order to meet the residency requirement.
In this regard, I would note further that if you meet the new residency requirement, that is, if you are spending at least two-thirds of your time in Canada, probably would have been better to wait and apply under the new law.
In contrast, if you do not meet that requirement, and will not, which is to say if you have been spending, and will continue to spend, less than two-thirds of your time in Canada, then I would agree with those who say your odds of success with a current application are indeed probably very, very low, perhaps near zero. Again, though, other factors may have some influence.
There are some indications that until the last few years, again depending on many other factors, the practical cut off for
shortfall cases was 900 days of
APP . . . that was the threshold below which, as of 2012, CIC had a firm policy requiring a Citizenship Judge hearing (that said, by 2012 it appears that at least a CJ hearing was more likely than not for applicants above the 900 days threshold as well, with a substantial risk for denial . . . again depending on other factors).
What that means, as best I could discern, is that even before the last few years, less than 900 days would most likely result in a denial and only an applicant with more than 900 days had much of a chance.
I offer these more to outline the general parameters. Any
shortfall case really depends on the particular facts and circumstances for that specific applicant.
There are, though, some general guides as to what makes a
shortfall case stronger or weaker:
-- the more the shortfall, the weaker the case; again, years ago the big cut off appears to have been 900 . . . before Harper, by the way, it was 730 or half the time . . . and in recent years reports of being denied for falling short by just a few days are
not unusual
-- more temporary in nature the reason for the absences, the stronger the case
-- the more continuing ties to Canada are entangled in the absence itself the stronger the case; airline employees based in Canada but flying internationally is a good example; that said, a number of Canadian long-haul truck drivers whose employment entailed regular routes into the U.S., resulting in their absence from Canada for more than 25% of the time (which averaging two nights a week for 46 weeks of the year will do, without even counting a single additional holiday to Cancun or weekend shopping trip to the States with the wife), have reported being denied for falling short
-- in contrast, the less connection to Canada the reason for the absences, the weaker the case (your employment appears to be non-Canadian, for example, so my sense is this is a factor which would weaken your case, probably considerably)
These are mere examples in isolation. The specifics of the particular case are what matter . . . recognizing, again, however, that these days the successful
shortfall application appears to be an
unusual exception, based on very compelling, extraordinary reasons.
By the way, my on-going real time (from early 2011 through somewhat recently, though fading considerably as the number of these cases declined dramatically by the end of 2013) and quite extensive analysis of Federal Court decisions regarding residency assessments, with the qualitative tests for residency looming large, can be found in another forum at immigration . ca.
