I cannot meet all the requirements – what should I do?
Last week I wrote about the eligibility requirements under the Citizenship Act, including the latest rules that came into effect on October 11, 2017. Today I am writing about some of the questions I have been asked repeatedly: what can I do if I am not able to meet all the eligibility requirements? Do I have any chance to apply? What happens if I apply but my application is refused?
My answer in this situation is that it depends on your circumstances and you should thoroughly research your options before giving up your plans of applying for citizenship. Depending on which of the eligibility criteria you are not able to meet, we can approach the problem in different ways. The information below is with regards to some of the main exemptions to the eligibility requirements but you should always seek legal advice with regards to your specific situation.
1- Physical presence in Canada:
You must be in Canada for the required number of days before you become eligible to apply for Canadian citizenship (refer to my detailed article from last week). However, there are some circumstances in which the applicant may not have been in Canada but will still be eligible. For example if you work abroad for the Canadian government or Canadian Armed Forces you do not need to meet the physical presence requirement. Another example is the case of a minor child who has a Canadian citizen parent – such a child can become a Canadian citizen without meeting the physical residence requirement when his or her Canadian parent applies for his or her citizenship.
2- Language ability, and knowledge test and Oath of Citizenship:
Applicants between the age of 18 and 54 must meet the language and knowledge tests in order to become citizens. All applicants are required to take the Oath of Citizenship. There are cases in which applicants are unable to meet the language and knowledge test requirements or even understand the significance of taking the Oath of Citizenship.
In some case where applicants have disabilities such as those who are hearing impaired, special accommodations can be made in administering the knowledge test to allow them to respond to questions and demonstrate their knowledge of Canada. However, where the applicant cannot meet the language and knowledge tests due to a medical disorder, disability or condition that is cognitive, psychiatric or psychological in nature, then the citizenship rules allow them to apply for a waiver of knowledge and language requirement.
This is a serious matter and you can only obtain an exemption by providing evidence of your condition in the form of detailed medical reports. The evidence must substantiate the fact that the applicant cannot meet this requirement for citizenship now or in the foreseeable future. These special rules are intended to allow flexibility in deserving cases that do not meet the eligibility requirements.
For example, this could include a case where the applicant suffers from a learning disability and therefore cannot provide proof of language ability or undertake the knowledge test. Or it could be the case where the applicant suffers from a cognitive disorder that prevents him or her from meeting the language and knowledge requirements and also prevents him or her from understanding significance of the Oath of Citizenship.
In such cases, the request for the waiver should be indicated from the very first step in the application process and often times these applications can become complicated very quickly. Officers will look at many different factors including the age of the applicant, the personal circumstances, if there are any non-medical hardships that the applicant suffers from and how long the applicant has been living in Canada. The applicant must provide proof with regards to each of these factors and must try to convince the officer that he or she is deserving of a waiver. If you are applying for citizenship for someone in such a situation you should consider obtaining expert legal advice before you start in order to understand the process and maximize their chance of success.
3- Appealing a refusal of your citizenship application:
It is possible that a citizenship application may be unsuccessful for any number of reasons. For example, the officer may find that you were not in Canada for the required number of days or that you failed the knowledge test. What can you do when your application for citizenship is refused?
If your citizenship application is refused you have the right to access judicial review of the decision in Federal Court. If you intend to seek a review of the decision you must act fast. You generally have 30 days from the date the decision letter was mailed to you to commence an application for judicial review by filing an application for leave with the Federal Court.
In order to succeed, your application must raise a serious or arguable issue. These are technical legal terms and you should consult a lawyer to fully understand the process and prepare your submissions. If the Federal Court grants “leave” to hear your case, it means they are permitting your case to move forward and there will be a hearing where your legal arguments will be presented to the Court.
If the Federal Court judge denies your application for leave, the application will be dismissed and there is no further right to appeal the court’s decision. If the Federal Court judge grants leave, a hearing date will be set for the court to receive your legal arguments. After the hearing, if the Federal Court judge finds in your favour, they will send the application back to a different citizenship officer for determination.
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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court.