The Process for Canadian Citizenship Appeals
Applications for Canadian citizenship that have been refused by the citizenship department may be appealed to the Federal Court within 30 days. These appeals proceed as applications for leave and judicial review. This is a two-part process whereby the applicant first applies for “leave” meaning a hearing. The leave application is made by filing written submissions with the Court which will consider whether the applicant has an arguable case. If the Court grants leave then the judicial review will commence culminating in a hearing before a Federal Court judge.
At the judicial review hearing the applicant or their counsel will present their legal arguments before the judge. The citizenship department will be represented by their own lawyer who will oppose the appeal. After hearing all arguments the judge will typically render a decision in writing either granting or dismissing the judicial review application. If the judicial review is granted the usual remedy is for the case to be returned to the citizenship department to be redecided.
As a judicial review is not a full appeal no new evidence may be adduced and the Court is restricted to reviewing the decision of the citizenship authorities in light of the evidence that was before them. The Court will consider whether the decision in made in accordance with the legislation, is within the jurisdiction of the decision-maker, was fairly made, and is reasonable. In deciding the reasonableness of the decision the Court will afford the citizenship department considerable deference and will not interfere with the decision unless there is an obvious flaw in the citizenship official’s reasoning.
Challenging a CitizeNship Rejection
The most common ground for the challenging of a citizenship application rejection is if there was some error in calculating the period of residency of the applicant.
As applicants for Canadian citizenship must demonstrate that they have been physically present in Canada for at least three years out of the five-year period before they apply, the actual amount of time they have been in Canada can be a source of contention, especially when the applicant has travelled frequently. While previously it was possible in some cases to argue that a qualitative rather than a quantitative test should be applied when assessing residency in citizenship applications, through June 2015 amendments to the Citizenship Act Parliament clarified that physical presence was required in order to show residency for purposes of obtaining citizenship, and as a result it is no longer possible to argue that a qualitative approach should have been applied. As a result, the issue of the residency calculation usually boils down to deciding whether the citizenship authorities ignored or disregarded evidence of residency, or simply made a mathematical error when counting the applicant’s time in Canada.
Other grounds for appealing may include various issues of procedural fairness, issues related to misrepresentation, to language ability and taxation requirements, and where a citizenship application has been delayed, issues related to mandamus.
How to Speed Up The Process: Mandamus applications
While most appeals of citizenship authorities seek certiorari, or the overturning of a citizenship decision, it is also possible to appeal to the Federal Court and seek mandamus, which is an order that a decision be made immediately. Mandamus can be sought where there has been a lengthy delay in the processing of the citizenship application that is the fault of the citizenship authorities and not the applicant. If the court grants the appeal, it will order the citizenship authorities to make an immediate decision in the citizenship application.
We can help
The Law Office of Matthew Jeffery has over 20 years of experience successfully representing clients in citizenship appeals, including mandamus appeals. Please fill out the Appeals Free Assessment to submit your case to see if we can help you with your immigration matters.
Was your Canadian citizenship denied?
The Citizenship Act of Canada clearly states situations that may prevent one from becoming a Canadian citizen. To be eligible to apply for Canadian citizenship, you must not:
- Be on parole or probation or serving a long-term sentence in Canada
- Be serving a sentence outside of Canada
- Be charged with, on trial for or involved in an indictable offence in Canada
- Be charged with, on trial for or appealing an offence outside Canada that is considered equivalent to an indictable offence in Canada
- Be under a removal order (if you have received an order by the IRCC to leave Canada)
- Be charged with, on trial for, convicted of or being investigated for a war crime or a crime against humanity
- Have had a citizenship application refused based on misrepresentation in the last 5 years
- Have had your Canadian citizenship revoked on the grounds of fraud in the past 10 years
- Have been convicted of terrorism, treason, spying offenses or spying offenses while in Canada as a permanent resident
- Have served as a member of an armed group in a country that engaged in armed conflict with Canada while you were a permanent resident
- Have never met or no longer meet the requirements of a grant or resumption of citizenship.
If any of the situations above apply to you, you cannot qualify for Citizenship in Canada until the situation no longer applies.