Canadian citizenship and the challenges of birth tourism

A relatively neutral legal brief on birthright citizenship, noting that a proportionate response would likely not include ending birthright citizenship (but no mention of the Australian approach of qualified birthright citizenship). Stay tuned for my take:

The president of the United States recently indicated that he was preparing an executive order to end birthright citizenship in the U.S.  President Trump said that the United States was the “the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.

In fact, the U.S. is not the only country in the world that grants birthright citizenship. Canada, Mexico and about 30 other countries grant citizenship to babies born in the country. Canadian citizenship can be acquired by birth pursuant to jus soli — “law of the soil,” which is codified in s. 3(1)(a) of the Citizenship Act.

Over the years, there have been calls to end birthright citizenship or limiting it to those born to at least one Canadian citizen or permanent resident parent because of a rising fear of “birth tourism.” Birth tourism is where pregnant visitors or non-residents give birth in Canada so that their babies can automatically be Canadian citizens.

It has been reported that there are a number of birthing hotels or baby houses in British Columbia where pregnant women pay thousands of dollars to come give birth in Canada so that their babies could be Canadian citizens by birth. Section 179 of the Immigration and Refugee Protection Regulationspermits visitors to travel to Canada, including pregnant women. Immigration Refugees and Citizenship Canada (IRCC) publishes its own instructions and guidelines clarifying that “there is no provision in the IRPA to refuse a temporary resident visa (TRV) solely on the basis of the intent of the applicant to give birth in Canada.”

Opponents view birth tourism as an abuse or loophole of Canadian immigration and citizenship laws. They see this as a way for some wealthy foreigners to “game” the system and buy Canadian passports for their babies. An extreme view is that it is an immigration fraud giving a way for people to jump the queue. It is often argued that the practice erodes the value of Canadian citizenship.

There is also concern that birth tourism is costly to taxpayers because it allows Canadian-born children access to publicly subsidized education, health care and social security programs, all without necessarily contributing to the funding of these systems and programs by paying taxes. Moreover, there is no obligation under international law to automatically give citizenship to babies born in Canada. Countries including Ireland, Australia and the United Kingdom have either eliminated or have limited birthright citizenship over the years.

Proponents of preserving birthright citizenship argue that the principles of jus soli are part of our national identity and embodies the idea that every child born in Canada is equal. Eliminating birthright citizenship would impose additional public expenses and complicate the process for verifying citizenship and risks having two-tiered citizenship.

It would be an expensive undertaking to develop and maintain a new verification system for a localized phenomenon or “problem” that may not be prevalent or widespread at all. Indeed, Statistics Canada data reports that there were 385 babies born in 2017 to mothers whose place of residence was outside Canada. While these numbers are most likely under reported and do not tell the whole story, it does underline that this issue of birth tourism may be a hyperbole.

The benefits of Canadian citizenship to the newborn child may be immediate, but for the parents, there is no guaranteed path to permanent residency or citizenship by virtue of their Canadian-born child. Having a Canadian-born child does not necessarily allow someone to be prioritized for permanent residence status or citizenship. Canadian-born children may eventually sponsor their parents, but sponsors must meet age and income requirements before becoming eligible sponsors.

Having Canadian-born children may provide the child with opportunities attributed to the benefits of citizenship rather than being a backdoor to Canada for parents. These babies may grow up to be assets to Canada and contribute to Canadian culture, society and the economy. Any immigration benefits to the parents may be decades down the road when the Canadian babies become adults and can sponsor their parents.

It must be remembered that there are limitations to jus soli. Under s. 3(2) of the Citizenship Act, children born in Canada to foreign diplomats, consular officers or representatives of a foreign government or international organization or their employees in Canada are not Canadian citizens despite being born in Canada.

The Supreme Court of Canada will hear the case of Minister of Citizenship and Immigration v. Alexander Vavilov [2016] 2 F.C.R. 39 in December. The court will determine issues of standard of review and also weigh in on the question of whether diplomatic immunity is required to trigger s. 3(2)(a) of the Citizenship Act. The Vavilov brothers are Canadian-born but were stripped of their Canadian citizenship after it was discovered that their parents were Russian spies. The parents were deemed to be “representatives or employees of a foreign government” at the time of their birth. As such, the brothers were not eligible for Canadian citizenship by birth pursuant to s. 3(2)(a).

While birthright citizenship in the United States is a constitutional right and amendments thereof would be subject to a constitutional process, in Canada, birthright citizenship is codified in the Citizenship Act which can be amended by an act of Parliament. The question is whether Canadian laws should be amended to limit or eliminate birthright citizenship or whether policy and regulations could be implemented to curb the practice of birth tourism at the local level.

The proportionate response to birth tourism may not necessarily require a complete end to jus soli.

Kelly Goldthorpe is an immigration lawyer at Green and Spiegel LLP and Caroline Mok is an articling student at the firm.

Source: Canadian citizenship and the challenges of birth tourism

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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