Canada to extend citizenship to children born abroad, restoring rights of ‘lost Canadians’

As largely expected following the Court decision and the government’s decision not to appeal, the residency requirement has emerged as the least objectionable and easiest connection test to manage among the available options. However, it is strange that Bill C-71 isn’t fully consistent with the standard physical residency requirement for new Canadians: “must have been physically in Canada for at least 1,095 days (3 years) during the 5 years before the date you sign your application.” This means a weaker connection test than warranted IMO and curious to see how the government justifies this difference and assesses the impact on the number of people affected.

At least the government is following the normal legislative process in making the change rather than the backdoor shortcut of S-245, to allow for proper committee consideration and debate. It remains to be seen how the Conservatives react on the substance given their legitimate opposition to the S-245 approach.

The number of persons potentially affected is large. Out of the estimated 4 million Canadian expatriates, about half are by descent (i.e., born abroad). Two-thirds of expatriates are living in the USA, with another 15 percent in UK, Australia France and Italy (2017). The number living in other countries has increased from 14 percent in 1990 to 20 percent in 2017.

As we have seen in previous efforts to respond to “Lost Canadians,” the actual number of those who request citizenship proofs is relatively small: an average of 1,500 per year, 2009-22. So while the impact is potentially large, the actual numbers are likely smaller given that for second and subsequent generation expatriates in the USA and EU, largely integrated into their country of residence, Canadian citizenship may not be a priority. On the other hand, it is likely a higher priority for those in other countries with less secure conditions, with Hong Kong being a prime example, and where we see growth in expatriates.

Of course, all of these expatriates will have voting rights, another reversal by this government of the previous government’s five year cut-off. However, despite the talk about the right to vote, actual interest in voting in Canadian elections is minimal among expatriates.

It will be interesting to see what analysis, if any, IRCC provides on the potential impact on its citizenship operations.

Having become a grandparent to a child born abroad, I look at how our the change affects our grandson. Under the current first-generation cut-off, he would not be able to transmit his Canadian citizenship to any future child. Under C-71, he would have to 1,095 cumulative days of physical presence in Canada. So the obvious and easiest strategy for him would be to attend university in Canada and thus start the clock again. Personally, the first generation cut-off did not concern us as we accept that family trajectories and trees evolve and change.

It would be helpful for the government and CIMM to look at my and other scenarios to understand the potential impact of the lack of a timeframe for the physical residency requirement, particularly for temporary workers (TFWP and IMP) which are less straightforward that the situation of my grandson.

Following a court order, the federal government has introduced new legislation to restore the citizenship rights of “lost Canadians” born outside Canada and ensure it doesn’t happen to others in the future.

This legislation would automatically confer Canadian citizenship to persons born abroad to a Canadian parent who is also born abroad beyond the first generation if the parents can pass a “substantial connection test.”

“It will be the first time that the Citizenship Act is actually charter compliant,” said Don Chapman, a staunched advocate for lost Canadians, after Bill C-71 was tabled in Parliament on Thursday. ”It’s monumental. And it has huge ramifications.”

As a result of the first-generation limit, Canadian citizens who were born outside Canada cannot pass on citizenship to their child born outside Canada; neither can they apply for a direct grant of citizenship for a child born outside Canada and adopted, creating generations of so-called “lost Canadians.”

“We want our citizenship to be fair, accessible, with clear and transparent rules. Not everyone is entitled to it, but for those who are, it needs to be fair,” Immigration Minister Marc Miller told reporters.

“We wanted to take this opportunity to continue to minimize differential outcomes as much as possible for children born abroad…compared to children born to Canadians (in Canada).”

According to the proposed amendment to the citizenship law, parents born abroad who have or adopt children also born outside Canada will need to have spent at least 1,095 cumulative days of physical presence in Canada prior to the birth or adoption of their child to pass on citizenship.

Lost Canadians and their families launched a constitutional challenge in court last year of the two-generation citizenship cutoff rules. Click here to post your thoughts

In December, the Ontario Superior Court of Justice ruled that it’s unconstitutional for Canada to deny automatic citizenship to children born abroad because their parents also happened to be born abroad. It gave the federal government six months, until June 19, to repeal what’s known as the “second-generation cut-off” rule and amend the Citizenship Act.

With the looming court-stipulated June 19 deadline to roll out the new scheme, Miller said the government is unlikely to receive royal assent to the bill in time and will have to go before the judge to ask for an extension, which will cause further delays for affected children and grandchildren of Canadians to acquire citizenship and join families in Canada.

“We are still looking at a number of options. We don’t want an extension ad nauseum because there are people that are being prejudiced by this,” Miller explained.

“I have a very uncomfortable role in the interim at applying a test that really should be legislative. But it’s something that will have to speak to the court about. Again, we hope that this can be passed at all stages.”

In 2009, the then-Conservative government changed the citizenship law and imposed the second-generation cut-off on Canadians born abroad, after Ottawa had faced a massive effort to evacuate 15,000 Lebanese Canadians stranded in Beirut during Israel’s month-long war in Lebanon in 2006.

The $85-million price tag of the evacuation effort sparked a debate over “Canadians of convenience” — referring to individuals with Canadian citizenship who live permanently outside of Canada without “substantive ties” to Canada, but who were nonetheless part of the government’s liability.

As a result, the government abolished the then existing “substantial connection” regime and adopted a blanket rule that denies the first generation born abroad the right to pass on citizenship by descent outside Canada to the second generation born abroad.

In January, Ottawa decided not to challenge the court decision, but instead would repeal the existing law and put forward a new bill that’s compliant with the Canadian constitution.

Source: Canada to extend citizenship to children born abroad, restoring rights of ‘lost Canadians’

The press backgrounder:

Bill C-71: An Act to amend the Citizenship Act (2024)

From: Immigration, Refugees and Citizenship Canada

The Citizenship Act contains a first-generation limit to citizenship by descent, which means that a Canadian citizen parent can pass on citizenship to a child born outside Canada if the parent was either born in Canada or naturalized before the birth of the child. Canadians born or naturalized in Canada before adopting a child born abroad can apply for a direct grant of citizenship for the adopted child.

As a result of the first-generation limit, Canadian citizens who were born outside Canada cannot pass on citizenship to their child born outside Canada, and cannot apply for a direct grant of citizenship for a child born outside Canada and adopted.

On December 19, 2023, the Ontario Superior Court of Justice declared that the first-generation limit for those born abroad is unconstitutional. The Government of Canada did not appeal the ruling because we agree that the law has unacceptable consequences for Canadians whose children were born outside the country.

The government is introducing legislation to make the citizenship process as fair and transparent as possible. Bill C-71 would

• automatically remedy the status of any person already born who would have been a citizen were it not for the first-generation limit
• establish a new framework for citizenship by descent going forward that would allow for access to citizenship beyond the first generation based on a substantial connection to Canada

Substantial connection test

Bill C-71 would allow a Canadian parent born abroad who has a substantial connection to Canada to pass on citizenship to their child born abroad beyond the first generation. It would also provide them with access to the direct grant of citizenship for their child born abroad and adopted beyond the first generation.

To demonstrate a substantial connection to Canada, a Canadian parent who was born abroad would need to have a cumulative 1,095 days of physical presence in Canada before the birth or adoption of the child.

Lost Canadians

The term “Lost Canadians” has generally been used to describe those who lost or never acquired citizenship due to certain outdated provisions of former citizenship legislation.

Most cases were remedied by changes to the law in 2009 and 2015. These changes allowed people to gain Canadian citizenship or get back the citizenship they lost. Despite this, additional amendments are needed to include other categories of Lost Canadians and their  descendants who did not benefit from the 2009 and 2015 changes.

Bill C-71 will restore citizenship to any remaining “Lost Canadians,” their descendants and anyone who was born abroad to a Canadian parent in the second or subsequent generations before the legislation comes into force. This includes people who lost their citizenship as a result of requirements under the former section 8 of the Citizenship Act.