‘Penalized for having been born abroad’: Foreign-born Canadians take government to court over second-generation cut-off rule

Will see what the court decides:

Should foreign-born Canadians who travel and give birth overseas automatically forfeit their right to pass on citizenship by descent?

That’s the question before the Ontario Superior Court of Justice, which has been asked to decide if Canada is violating the charter by restricting the passing of citizenship by descent to the first generation born abroad only.

The lawsuit was brought by 23 individuals from seven families that have been negatively affected by the loss of citizenship as a result of the so-called second generation cut-off rule introduced by former prime minister Stephen Harper’s Conservative government in 2009.

The multi-generational litigants claim the law discriminates against their families based on their place of birth, violates their mobility and liberty rights, and disproportionately puts women at a disadvantage when they have to give birth outside of Canada due to circumstances beyond their control.

The government argues that there’s no charter right to citizenship and Canada has never prevented any of the litigants from exiting or returning to the country, arguing that they made the “personal choices” to pursue international employment opportunities and have children abroad.

However, the families’ lawyers argued that government’s position oversimplifies the “complicated” reality of the many “moving parts” of those choices, such as access to health care, cost of health care, risks of travel, loss of job and income and jeopardy to career advancement.

“All of them are unable to pass on citizenship due to the circumstances of their birth. Their parents were Canadian citizens who went abroad temporarily for work or travel … That’s a circumstance beyond the control of the members of the first generation born abroad,” co-counsel Ira Parghi told Justice Jasmine Akbarali on Wednesday.

“Although they didn’t choose to be born abroad, they are nonetheless now being penalized for having been born abroad.”

The Canadian Citizenship Act has gone through numerous amendments since it came into effect in 1947. For years, it allowed Canadian parents to pass citizenship to their children born outside of Canada onto indefinite generations as long as the foreign-born descendants registered with the government by a certain age.

In 2009, the Harper government enacted and imposed a second generation cut-off for Canadians born abroad after Ottawa’s massive effort to evacuate 15,000 Lebanese Canadians stranded in Beirut during a month-long war between Israel and Lebanon in 2006.

Then immigration minister Diane Finley said the change was meant to discourage “Canadians of convenience” by ensuring citizens have a real connection to this country and not selling the Canadian citizenship short.

“Minister Finley justified the second generation cut-off by invoking concerns about Canadians of convenience, who would never set foot in Canada, had no real connection to Canada and simply sought citizenship to preserve the option of living here,” said Sujit Choudhry, co-counsel for the “lost Canadians.”

“The applicants are not Canadians of convenience. They returned as small children. They spent their formative years here. They are Canadian. Canada is their home.”

While Canadians born in Canada and naturalized Canadians could pass their citizenship to their children born abroad, Choudhry said Canadians born abroad by descent could not similarly do so.

“It’s an entirely arbitrary distinction and it’s the epitome of discrimination,” he contended.

Currently, one option for lost Canadians is to ask the immigration minister for a discretionary grant of citizenship “in exceptional cases” where a person is stateless or faces “special and unusual hardship” or proven to be “an exceptional value” to Canada.

Alternatively, Canadian parents can sponsor their foreign-born children to the country through family reunification if they are underage.

The families lawyers said both pathways are tortuous and unprincipled with little transparency, and decisions are rendered at the whim of a government bureaucrat.

Victoria Maruyama, who was born in Hong Kong and came to Canada in 1980 when she was one-year-old, has had an uphill battle trying to secure Canadian citizenship for her two children. They were both born in Japan, where she met her Japanese husband, an Air Force pilot, while she was teaching English there in 2002.

In 2017, she brought her children to Canada on visitors’ visas with the intent to raise them in her homeland. She made a plea to the immigration minister for Canadian citizenship for her kids’ while fighting to get them into public school and access to health care.

She subsequently applied for a discretionary citizenship grant by the minister and sponsored her young family for permanent residence.

“This concept of choice is very problematic when used in such a simple way,” Parghi told court.

Born in Libya, Patrick Chandler grew up in Mississauga and studied at the University of Toronto before teaching English in China, where he met his wife, Fiona. Both his children were born in Beijing.

In 2017, Chandler returned to Canada to start his family sponsorship but left his family behind because they wouldn’t be eligible for provincial health insurance or able to attend public schools.

“It is true that there is an alternative pathway which was to get permanent residency first and then citizenship. It is true that’s what the Chandler family did,” Parghi said. “But in order to get that permanent residency, they had to endure the yearlong separation whose effects were so devastating.”

The hearing resumes Thursday with arguments from the government.

Source: ‘Penalized for having been born abroad’: Foreign-born Canadians take government to court over second-generation cut-off rule

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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