A new law will finally grant citizenship to ‘lost Canadians’. Are we ready for the consequences?

Good questions and the answer would appear to be no, judging by the lack of analysis of the possible impacts by the Minister. Like any changes in citizenship or immigration policies, persons can be expected to respond to any perceived incentives provided by the change and IRCC needs to present any analysis during parliamentary consideration of C-71, not the subsequent regulatory stage.

Past experience with responding to “lost Canadians” and expanding voting rights suggests that the number of “lost Canadians” who want to be “found” is small subset of the total expatriate population, particularly for those living in the USA. But given the increased diversity of Canadian expatriates, that may be changing:

Last week, faced with a court-imposed deadline, Immigration Minister Marc Miller introduced new legislation that would automatically give citizenship to people born outside of Canada to Canadian parents, as long as the parents have lived here for a cumulative 1,095 days before the child’s birth.

The legislation, Bill C-71, will correct the arbitrary creation of a generation of ”Lost Canadians”. Under the current Citizenship Act, subject to a few notable exceptions, a person born outside of Canada would only be a Canadian citizen if their parents were either born in Canada, or naturalized in Canada. If their parents were born outside of Canada and became a Canadian citizen through their own parents, they did not qualify for Canadian citizenship by descent.

A particular blind spot was border babies. For example, a mother in Point Roberts, Wash., may give birth in British Columbia, while a mother in Emerson, Man., might give birth in North Dakota, simply because it is the nearest hospital to her. If those mothers were born outside of Canada, their babies would not have had automatic Canadian citizenship. 

Unlike their Canadian counterparts, however, American parents in border communities do not have to worry about where they themselves were born. Under U.S. citizenship law, if either parent meets the prescribed residency requirements (five years with at least two years after the age of 14), their child will be American. While there is some disagreement with Canada’s adoption of a less burdensome cumulative 1,095 day rule, we see it as similar to the American law. Both legislation mirror the residency requirement for naturalization and ensure a substantial connection to the country is met.

While advocates are rightly celebrating this “monumental” change for cross-border families, as immigration lawyers we have mixed feelings in light of the current political environment. Will the Canadian public “open their arms” towards the potentially untold number of U.S. residents who can now claim Canadian citizenship?

Removing outdated values and addressing historic wrongs in citizenship law

As the Senate argued in 2007, the current Citizenship Act relies on past legislation, which was built on outdated values. For example, gender and marital status played a major role in determining who was or wasn’t Canadian. Bill C-71 is likely to be the first legislation that does not consider gender or marital status.

Bill C-71 also addresses racial discrimination in the Citizenship Act. Bill C-71, would for example rightfully restore citizenship to the descendants of Japanese-Canadians, who were interned and deported during the Second World War.

Bill C-71 would also restore citizenship to those who lost it because they did know they had to meet retention requirements by their 28th birthday. 

These changes are long overdue. The Citizenship Act historic issues were first identified by the Supreme Court of Canada in 1997.

All these above changes are positive as they add greater coherence to the law, bridging past shortcomings with a forward-looking lens to safeguarding Canadian citizenship.

Encouraging Canadians to Return to Home

Bill C-71 could play a role in encouraging Canadian families with young children born abroad to return home. A government study found that over half of Canadians abroad are citizens by descent. Bill C-71 would allow these families to avoid the difficult processes for sponsoring their children as permanent residents because they would automatically become Canadian citizens.

It is also important to contextualize that the citizenship rules that created “Lost Canadians” was itself the product of resistance within Canada to recognizing citizens abroad attempting to return home — in particular, a public backlash to the government evacuating Canadian citizens from Lebanon in 2006. It’s important to recognize that this new legislation comes at a time when anti-immigration sentiment is on the rise and to interrogate the 180-degree motivation shift.

While much of the support for these changes has come from U.S. cross border families, we have noticed the brunt of the online discussion about the potential law change surrounding Asian birth tourism and allegations of elaborate family schemes for descendants to claim a right to Canadian citizenship.

The reality is the flood gates might open to more Canadian citizens — but the bulk will not come from Asia. Based on our reading of this current bill, anyone who descends from a person that was born or naturalized in Canada before this bill comes into force would qualify for Canadian citizenship and the vast majority of those people are American.

This can be supported not just by anecdotal data from our own practices, but also statistics. According to the Vermont Historical Society, 20 per cent New Englanders are of French Canadian descent. This is only descended from French Canadians; The fact is we do not know how many Canadians of descent live in the United States.

Considering the more affordable post-secondary tuition in Canada for citizens (including those by descent), and our more generous social programs, such as publicly funded health care, this may become a pull factor for Americans, both young and old, to claim Canadian citizenship — in fact one of the reasons Americans claim their Canadian citizenship.

Our recommendation is that, notwithstanding political pressure to possibly pass this bill quickly, the government takes a collaborative approach that consensus-builds, not consensus-divides on the topic of citizenship. Future work must centre both ameliorating historical wrong but also strengthening a conception of Canadian citizenship that reflects modern day transnationalism beyond unpredictable shifts in domestic political values.

This process may result in amendments that impose some limits, or add additional residence obligations for Canadian citizenship, but it is one we hope will give Canada coherent and predictable legislation on who is a Canadian citizen.

Amandeep Hayer and Will Tao are immigration lawyers based in British Columbia.

Source: A new law will finally grant citizenship to ‘lost Canadians’. Are we ready for the consequences?