Citizenship Application Refused: What Are My Options?

Citizenship application refused: what are my options?

A refusal is a decision that the application did not lead to a grant of citizenship under the Citizenship Act. The reasons vary and should be read in the letter. Decisions under the Act can sometimes be taken to the Federal Court, as described below, and a refusal is not always the end of the road.

Under s. 5(1) of the Act, the Minister grants citizenship to a person who meets the listed conditions. These include making an application, holding permanent resident status with no unfulfilled conditions (subject to the regulations), meeting a physical presence requirement, meeting any applicable tax filing requirements, and (for adults under 55) showing adequate knowledge of an official language and of Canada. The person also cannot be under a removal order.

Who decides, and how is the decision made?

Under s. 14(1), an accepted application can later be referred to a citizenship judge when the Minister is not satisfied that certain listed requirements are met, such as the physical presence requirement. The judge is to decide within 60 days after the referral, although s. 14(1.1) bars a decision until certain investigations or inquiries are finished.

The Minister may also treat an application as abandoned if the applicant, without a reasonable excuse, does not provide requested information or does not appear when required (s. 13.2).

If a citizenship judge turns an application down, s. 14(3) requires notice to the applicant of the outcome, the reasons, and the right to seek judicial review.

The physical presence requirement: how the Act counts days

Physical presence is one of the conditions in the Act. As a general rule, the applicant must have spent at least 1,095 days inside Canada in the five-year period that ends on the application date (s. 5(1)(c)(i)). Separate provisions (for example s. 5(1.2)) exempt certain Canadian Armed Forces members from this paragraph.

The counting method is set out in s. 5(1.001):

Other provisions treat some time abroad as time in Canada, for example for permanent residents employed outside Canada in the Canadian Armed Forces or the public service, and for a spouse, partner or child who lived with them (ss. 5(1.01) to 5(1.03)). Whether they apply is fact-specific.

The five-year period in s. 5(1)(c)(i) is measured back from the date of the application, so a new application would be measured from its own date. How that plays out depends on the travel history and should be checked against the records with a lawyer.

What a refusal letter and reasons usually tell you

Section 14(3) describes what a citizenship judge's notice must contain (decision, reasons, and the right to seek review). For other refusals, the letter and any accompanying reasons are the main sources of information about what was decided. A lawyer typically looks for:

• The ground: residence days, language or knowledge, a tax filing issue, an inadmissibility concern, a credibility concern, or a procedural problem.
• The date you were notified, because the filing window is counted from when you were told or found out.
• Whether reasons are complete: if your court application says you have not received the written reasons, the Rules direct the Court Registry to request them (Rule 9 of the Federal Court's citizenship and immigration rules).

Judicial review of a citizenship refusal: how it works

Judicial review is generally a court's review of whether a decision was made lawfully and fairly, rather than a fresh decision by the court on the merits. The Supreme Court of Canada's 2019 decision in Vavilov (2019 SCC 65) is the general reference point for how courts approach the standard of review on judicial review.

The Federal Courts Act sets out the Court's usual powers on judicial review (s. 18.1). These include setting aside a decision and sending it back for determination, and the grounds listed in s. 18.1(4) include a failure to observe procedural fairness and an error of law.

The steps under the Citizenship Act run in this order:

1. Leave application. The Court must first give permission before any judicial review of a matter under the Act can proceed (s. 22.1(1)).
2. Filing and service within the window. The application has to be filed and served within 30 days of the day you are notified, or otherwise find out, about the decision (s. 22.1(2)(a)).
3. Perfecting the application. Under Rule 10, the applicant serves and files a record, with the decision, reasons, affidavit evidence and a memorandum of argument, within 30 days after filing if the application says the written reasons were received, or within 30 days after receiving the reasons or a notice that none exist if they were not.
4. The government's response. A respondent who opposes leave files its own memorandum within 30 days after service of the applicant's record (Rule 11).
5. The leave decision. A judge decides leave without delay, in a summary way and, unless directed otherwise, without a personal appearance (s. 22.1(2)(c)). No appeal lies from the decision on leave (s. 22.1(2)(d)).
6. The hearing. If leave is granted, the hearing is to take place within 90 days of leave and, unless the parties agree otherwise, not sooner than 30 days after it (s. 22.2(b)).

How long do I have to apply for judicial review of a citizenship decision?

The Act states 30 days, counted from when you are notified or otherwise become aware of the decision (s. 22.1(2)(a)). A judge can extend the period, but only "for special reasons" (s. 22.1(2)(b)). The Rules add that a request for an extension is made within the leave application itself and decided together with it (Rule 6).

Immigration decisions under a different statute, the Immigration and Refugee Protection Act, have different periods (15 days for a matter arising in Canada or 60 days for one arising outside Canada, IRPA s. 72(2)(b)), so the type of decision matters.

Whether any extension is available, and how the 30 days are counted in a specific case, depends on the facts and should be confirmed with a lawyer immediately.

Judicial review or a new application?

Which option fits depends on the reason for the refusal, the time left and the person's records, and a lawyer can advise on how the two relate. The materials reviewed for this article do not set out a waiting period before reapplying, so that should be confirmed.

What happens after the Federal Court decides

The Court can dismiss the application or, under the Federal Courts Act powers above, set the decision aside and send it back. A further appeal is narrow. The Federal Court of Appeal can hear one only when the judge certifies a serious question of general importance and writes it out (s. 22.2(d)). Under Rule 18, the judge must give the parties an opportunity to request certification before deciding, and the party asking must specify the precise question. A related explanation is in Federal Court certified questions and appeals.

Costs are not normally awarded in these proceedings unless the Court, for special reasons, orders them (Rule 22).

When it is worth talking to a lawyer

A conversation with a lawyer is usually worthwhile when:

• A refusal has arrived and the court filing period is already running.
• The reasons rely on a day count you believe is wrong, or on a calculation you do not understand.
• The decision mentions a misrepresentation, inadmissibility, or a credibility concern.
• You were not given the reasons, or the reasons do not explain the outcome.
• You are deciding between judicial review and a new application.

What to gather

• The refusal letter and any reasons, with the date and method you received them
• Your application, supporting documents, and correspondence with the government
• Passport pages and travel history covering the five years before you applied
• Records showing time in Canada (leases, pay records, tax documents, school or medical records)
• Notices of assessment or proof of tax filing
• Your permanent resident card and status documents

For related reading, see how federal court judicial review of IRCC decisions works and what the leave stage involves.