Only path to citizenship for ‘lost’ Canadians can take years and may involve mistakes, court hears

Noting that these processes could take months if not years, Justice Jasmine Akbarali raised concerns over mix-ups and mistakes in some of those decisions.

“They have to first become permanent residents and we know that hasn’t always been easy to obtain,” Akbarali said. “There’s children who applied for and did not get PR status. There’s no evidence to tell me how often that happens, that children of Canadian citizens obtain PR status on application or not.”

Government counsel Kevin Spykerman responded that there’s no evidence in the submissions but referred to some of the litigants who were granted citizenship by the immigration minister or successfully obtained permanent residence.

“In many of these applications, we see a much shorter processing time. And of course the 27 month processing time is not always 27 months,” said Spykerman. “We see success through this provision.”

But at what cost, the judge wondered.

“The courts are full of self-represented people who can’t afford lawyers. If you need a representative to find someone who knows somebody inside (immigration) to assist you in getting this exceptional grant to citizenship … then what about people who can’t afford it?” asked Justice Akbarali.

“Is it enough that they’re viable if they are incredibly difficult? If they cause hardship?”

Adams said the Federal Court is a better place to hear immigration and citizenship cases because of its expertise and experience in dealing with the relevant law and provincial courts generally defer jurisdiction to the higher court.

“Am I being asked to assume jurisdiction over immigration matters or am I being asked to apply the charter to federal law,” the judge interjected.

“You are being asked to apply the charter to federal law, which, again, you have jurisdiction to do. We’re not debating that,” Adams replied.

The government argued that none of the litigants’ mobility and liberty rights were infringed because at no point were the first-generation Canadians born abroad refused entry or exit from Canada. In addition, their foreign-born children were issued visitor visas to come to Canada.

“The applicants have been able to make fundamental personal choices free from state interference by moving overseas and having children overseas and by returning to Canada,” noted Adams, adding that the law is meant to ensure citizenship by descent is not passed from generation to generation to people without a connection to Canada.

The 23 litigants from multi-generational families, including grandparents and parents, have established ties to Canada before moving abroad and having children overseas.

The court questioned if those ties matter when the pejoratively known “birth tourists” with no connection to this country are able to obtain citizenship for their children by travelling to Canada and giving birth here.

“They have the choice as a birth tourist does to have child in Canada and reap the benefits of citizenship,” Adams answered. “There’s a choice where to have your children.

The litigants are seeking an order to declare the second-generation citizenship cut-off unconstitutional and grant citizenship to the four children in the lawsuit whose citizenship is still pending.