Birth Tourism: Media interest following my Policy Options piece (updated)

While I had expected considerable media interest, given the substance and the politics of the issue, yesterday had me doing TV interviews on all major networks and a radio interview with Rob Breakenridge of Global news in Calgary.

The most in-depth TV interview was on Power and Politics at the 1:13 mark: Power and Politics 23 Nov 2018.

Global TV:  New numbers show more ‘birth tourism’ in Canada than thought

CTV: New data shows birth tourism on the rise on Canada

Later interviews

On Radio Canada Vancouver (in French):

Boulevard du Pacifique: La Colombie-Britannique, chef de file du tourisme des naissances

CTV’s Your Morning:

Shocking new study reveals “birth tourism” in Canada is steadily increasing

The Sunday Edition, with Michael Enright, featuring mmigration lawyer Jamie Liew and Jas Johal, MLA for Richmond-Queensboroug: Birth tourism may be a hot button issue in the next federal election

 

Richmond Hospital is ground zero for the skyrocketing number of ‘anchor babies’ born in Canada, study indicates

Good report from the Vancouver Star:

More than one in five babies born in Metro Vancouver’s Richmond Hospital could be so-called “anchor babies” — children born to non-residents in order to gain Canadian citizenship — according to a new study.

The study, authored by the Institute for Research on Public Policy (IRPP) and published Thursday in Policy Options magazine, suggests 21.9 per cent of the children delivered in Richmond Hospital are born to non-resident mothers — more than double the percentage born in any other Canadian hospital.

The IRPP study also shows the number of such children born in Canada is far higher than previously estimated.

While a Statistics Canada report found roughly 312 babies are born in the country each year to mothers whose place of residence is officially listed as outside of Canada, IRPP’s study put that number at closer to 1,500 or 2,000 children annually. The data shows the number of births to non-resident mothers — including all provinces but Quebec, which refused to release the data — skyrocketed to 3,628 last year from just 1,354 in 2010.

The issue of birth tourism — when pregnant women fly to Canada to give birth — is divisive because children born under such circumstances are automatically granted Canadian citizenship. They therefore enjoy all the attendant rights and privileges, such as access to domestic university fees as well as subsidized education and health care, even though their parents aren’t taxpayers and the children themselves will not necessarily be raised in Canada.

Joe Peschisolido, Liberal MP for Steveston-Richmond East, believes the revelation provided by the study has some troubling implications.

“Even though I believe the (birth tourism) epicentre is in Richmond — and at the hospital in Richmond — I think you’re starting to see birth tourism as an institution,” Peschisolido told StarMetro in a Thursday phone interview.

“There are individuals that are profiting from this. And I think that’s the most heinous thing. You’re getting individuals that are abusing … the immigration and citizenship system … and are profiting off of an illegitimate — and the government has said unethical — system.”

A Thursday statement from Vancouver Coastal Health (VCH) confirmed the numbers in the IRPP study, though slightly more children were actually born to non-resident mothers in Richmond Hospital than the IRPP study accounted for.

While the IRPP study showed 469 non-resident births occurred in Richmond Hospital in 2017-18, VCH’s figures show 474 children were born to 469 resident mothers. The disparity, the statement explained, comes from the number of twins born in that time period.

And while the number of babies born to non-resident mothers has been increasing over the past several years — from 15.4 per cent of the total in 2014-15 to 22.1 per cent of the total in 2017-18 — the total number of babies born to all mothers decreased slightly this year, according to VCH.

The health authority also noted that non-residents are required to pay all hospital and medical-care costs for the mother and baby, including a prepayment deposit of $8,200 for a vaginal birth and $13,300 for a caesarean birth.

In March, Peschisolido sponsored a petition spearheaded by Richmond resident Kerry Starchuk calling on the federal government to condemn the “abusive and exploitative practice” of birth tourism.

Birth tourism, the petition said, fundamentally debases the value of Canadian citizenship; costs taxpayers money, since children of non-residents have access to services such as health care and subsidized education; and displaces residents from local hospital beds.

On Monday, the federal government tabled its response to Peschisolido’s petition, saying Canada does not currently collect information on whether a woman is pregnant when she enters Canada.

“A person is not inadmissible nor can they be denied a visa solely on the grounds that they are pregnant or that they may give birth in Canada,” the response reads.

And while misrepresenting the purpose of a visit to Canada to a federal officer carries “significant consequences,” the statement points out citizenship acquired through birth on Canadian soil has been policy since 1947.

Ottawa’s response, however, refers back to 2016 data from Statistics Canada, saying only about 300 of the 385,000 children born in Canada each year are born to non-resident mothers.

“This constitutes less than 0.1 per cent of the total number of births in Canada,” the response says, adding these numbers show the practice is not widespread but that the government has nevertheless commissioned research from the Canadian Institute for Health Information to look into the issue. It also committed to developing measures to address the institute’s findings.

Peschisolido said he was satisfied with the response. He said he hopes to participate in the review process once more granular data has been collected and responsible decisions can be made about the extent of birth tourism and what can be done to stop it.

But Will Tao, a Vancouver immigration lawyer, said he worries that focusing purely on statistics risks unnecessarily casting aspersions on all non-resident mothers.

“I don’t think (birth tourism) is the problem itself, so much as a symptom of the problem,” Tao told StarMetro. “I think the real problem is the unregulated nature of immigration advice.”

There are most certainly practitioners abroad who advise mothers to come to Canada to give birth as a kind of backdoor to citizenship, he said. And the federal government could do a better job providing a narrative — much in the way it has for individuals seeking refugee status — that would discourage abuses of the birthright policy, he said.

But there are countless non-residents who have children while in Canada for many other reasons. Those people, he said, should not be painted with the same brush as those who wilfully exploit the path to Canadian citizenship.

The IRPP study reflects that concern, noting its figures are not exact because they don’t express how many children were delivered by mothers with temporary status in Canada — a bracket that includes Canadian expatriates returning to give birth, corporate transferees and international students.

But researcher Andrew Griffith told The Star that a conservative estimate would suggest roughly 40 or 50 per cent of the non-resident mothers were birth tourists.

The study mined the Canadian Institute for Health Information discharge database, and according to Griffith, the IRPP’s figures — based on hospital financial data that codes services provided to non-residents under “other country resident self-pay” — more accurately reflect the number of non-resident births in Canada.

The IRPP study offered several options to address the problem of birth tourism, including:

  • Amending immigration laws to make it an offence if a woman fails to disclose the delivery of a child as the purpose of a visit to Canada and make that child’s citizenship fraudulent due to its procurement through misrepresentation
  • Adopting a “qualified” birthright approach by which a child is granted citizenship only when at least one parent is either a Canadian citizen or permanent resident and the child resides in Canada for at least 10 years after birth

Tao, the immigration lawyer, said he understood why people are shocked by how far above the national average the number of children born to non-resident mothers in Richmond Hospital are.

But through his interactions with clients, he said, he has encountered many families who could technically be called “birth tourists,” were that definition applied loosely enough. He said he was concerned that forthcoming regulations could encompass non-resident families or individuals whose children were born in Canada for legitimate reasons.

Tao also suggested a policy requiring immigration officials to question the motives of pregnant women as a matter of course could be “a very slippery slope into prejudice and background checking of other types.”

Griffiths, the researcher, agreed that birth tourism at the national level, currently accounting for roughly 0.5 per cent of the total annual live births in Canada according to the IRPP, is not a huge problem but suggested it should be monitored closely.

“Using this as a starting point, if we see any further increase or a trend line, then we need to take another fresh look at it,” he said.

But Peschisolido said that in a city like Richmond, where birth tourism appears to be a far more pervasive trend, every level of government has a responsibility to investigate how it can be slowed or stopped and what, exactly, may be driving it.

Source: Richmond Hospital is ground zero for the skyrocketing number of ‘anchor babies’ born in Canada, study indicates

Birth Tourism: My analysis and related articles

The link to my Policy Options article on the extent of, and options in dealing with birth tourism:

 Hospital stats show birth tourism rising in major cities 

Article has attracted considerable interest on Twitter and in the media.

In the Toronto Star:

The number of so-called “anchor babies” — children born to non-residents for the purpose of gaining citizenship — is at least five times higher than Canadian officials had estimated, new research suggests.

Birth tourism in Canada, where women late in pregnancy fly in to deliver their babies here, is controversial because the newborns are automatically Canadian citizens and enjoy full citizenship rights such as free education and lower university fees, even though their foreign parents aren’t taxpayers.

Statistics Canada has, since 2013, counted 1,561 babies — about 312 annually — born here to mothers, whose place of residence was listed outside Canada, based on figures from provincial birth registries.

However, a new study from the Institute for Research on Public Policy released Thursday suggests the number of “anchor babies” born here every year is likely in the 1,500 to 2,000 range.

The study mined the Canadian Institute for Health Information discharge database, and according to researcher Andrew Griffith, the figures — based on hospital financial data that codes services provided to non-residents under “other country resident self-pay” — give a clearer picture of the extent of the problem.

The data shows the number of births to non-resident mothers (including all provinces but Quebec, which refused to release the data) skyrocketed to 3,628 last year from just 1,354 in 2010, said the report by the Montreal-based think tank. It showed the Richmond Hospital in British Columbia with the highest volume of babies born to non-resident mothers.

Of the top 10 hospitals where such births were recorded, six are in the GTA.

The numbers are not perfect because they don’t break down how many of the births were to mothers with temporary status in Canada, which include Canadian expatriates returning to give birth, corporate transferees or international students who didn’t come here to specifically to have children. But Griffith says a conservative estimate is that 40 to 50 per cent of the non-resident mothers were birth tourists.

“How the (delivery) services are paid for is a more representative and realistic measure than the provincial registries,” said Griffith, a retired director general with Immigration Canada, adding part of the discrepancy can be attributed to birth tourists using their temporary Canadian address on birth registration forms and hence not being counted as non-residents.

“The concern has always been these people are exploiting the loophole in the law to obtain citizenship for their children when they are not entitled to that. There’s also the financial liability and responsibility on Canadian taxpayers for the child’s benefits.”

Currently, immigration officials cannot refuse a visitor visa application on the basis of the applicant’s intent to give birth in Canada, though they can assess if the person has enough money to visit Canada, if they will abide by the visa’s departure date and if they have a criminal record and should be barred from entry.

In 2012, the then-Conservative federal government, under Stephen Harper, had considered a crackdown on birth tourism but discarded the idea because the relatively small number of incidents — based on an estimate of 500 cases a year — did not justify the anticipated costs of enforcement.

However, with immigration and refugees expected to become a wedge issue in next year’s federal election, the Conservatives voted this summer at the party’s convention to end the birthright citizenship policy that gives citizenship to babies born in Canada even if their parents aren’t citizens or don’t have legal status in Canada. The motion is non-binding but could be part of their campaign platform next year.

Andrew Griffith, a retired director general with the immigration department, said birth tourism, while not a huge problem, should be monitored closely.

Griffith said any policy decision must be based on evidence and that’s what prompted him to seek out the most reliable data on the issue of birth tourism.

“Is it a widespread problem or is it just a phenomenon at the Richmond Hospital?” asked Griffith, referring to the B.C. hospital cited by the media as the epicentre of birth tourism. “We need data for informed decisions.”

He said birth tourism, currently accounting for roughly 0.5 per cent of the total annual live births in Canada, is not a huge problem but should be monitored closely.

“Using this as a starting point, if we see any further increase or a trend line, then we need to take another fresh look at it,” he said.

The study offers three options for policy-makers to tackle the problem if birth tourism gets out of control:

  • Amend immigration laws to make it an offence if a female visitor fails to disclose the purpose of her visit to give birth or declare her pregnancy to officials. The child’s citizenship would then be deemed fraudulently obtained due to misrepresentation by the mother.
  • Follow Australia’s move by adopting a “qualified” birthright approach specifying a person born in Canada would only be a Canadian citizen if the parent is either a Canadian citizen or permanent resident and the child lives in the country for 10 years after birth.
  • Introduce regulations prohibiting rooming houses and consultant and support services for birth tourists, substantially increasing the financial deposits required by hospitals from non-residents and ordering the provinces to require proof of payment prior to issuing birth certificates for children of non-resident mothers.

Source: Number of ‘anchor babies’ born in Canada far greater than official estimates, study shows

The CP article quoting Minister Hussen’s reactions to the findings along with other commentary:

With new research showing that more babies are born in Canada to foreign residents than Statistics Canada realized, the federal government is studying the issue of “birth tourism” in the hope of better understanding how many women travel to Canada to have babies who are born Canadian citizens.

Using numbers from the Canadian Institute for Health Information (CIHI), which captures billing information directly from hospitals, researcher Andrew Griffith found over 3,200 babies were born here to women who weren’t Canadian residents in 2016 – compared with the 313 babies recorded by Statistics Canada.

The finding suggests not only that the numbers are higher than previously reported, but that it’s a growing trend, Griffith says.

“(The data) shows the steady growth in the number of babies born in hospitals to women who are residents of other countries, by absolute numbers and percentage, for all provinces except Quebec,” Griffith wrote in an article in Policy Options, published by the Institute for Research on Public Policy. “These births total just over one per cent of all live births in English Canada.”

A petition tabled recently in the House of Commons by Liberal MP Joe Peschisolido calls on Canada to take stronger measures to end birth tourism, saying it abuses Canada’s social-welfare system.

Immigration Minister Ahmed Hussen responded by saying his department has commissioned research to get a better picture of the scope of the issue in Canada.

“While these statistics indicate that this is not a widespread practice, the government of Canada recognizes the need to better understand the extent of this practice as well as its impacts,” Hussen said in his response, tabled in Parliament.

The department has commissioned CIHI to perform this research.

The issue of so-called birth tourism has been polarizing in Canada, with the Liberals defending the current law that gives automatic citizenship to anyone born on Canadian soil except for children of foreign diplomats.

Conservative party members passed a policy resolution during their biennial convention this summer calling on the government to end birthright citizenship “unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.”

Leader Andrew Scheer said at the time one of the goals would be to end the practice of women coming to Canada simply to give birth to a child that will automatically have Canadian citizenship.

Other countries have ended or modified their birthright-citizenship laws, including the United Kingdom, Australia, Ireland, New Zealand, India, the Dominican Republic, Thailand and Portugal. Recently, U.S. President Donald Trump has threatened to end birthright citizenship in the United States, although critics have argued such a change could violate that country’s constitution.

Canada did explore changing Canada’s existing birthright policy under Stephen Harper’s Conservative government. This work ultimately found any change to the law would have significant impacts, according to a senior government official who spoke to The Canadian Press on background.

Many Canadians – 40 per cent or more – don’t have passports and use birth certificates to prove their citizenship. A change in birthright-citizenship rules would mean they’d need new forms of identification to prove their citizenship and get government services.

A 2013 estimate pegged the cost of changing the rules at $20 million to $30 million, plus $7 million in extra costs for the federal government every year, the senior official said. He further noted this did not include costs to the provinces and territories, which would be even higher because they’re responsible for more personal documents than the federal government is.

The Conservatives did not change the policy. Nor will the Liberals, said Mathieu Genest, a spokesman for Hussen.

“The birth-on-soil principle has been enshrined in our legislation since Canadian citizenship first came into existence in 1947. A change to this principle was planned by the Harper Conservatives, but abandoned after listening to the advice of experts,” Genest said. But the Immigration Department still wants a better understanding of what’s going on.

Griffith said he was inspired to delve into the question of how prevalent birth tourism is in Canada after he noted the number of non-resident births reported for Richmond Hospital in B.C. were disproportionate to the rest of the country, as calculated by Statistics Canada.

The data he collected from CIHI captured the number of mothers who paid out-of-pocket for their hospital bills, which was at least five times higher. He acknowledged this would include Canadian expatriates and foreign students whose hospital expenses were not covered by Canadian medicare.

Ontario immigration lawyer Gordon Scott Campbell said he’s had several clients in recent years who have given birth while in Canada while in the middle of legitimate refugee or immigration processes.

For example, he said some women with visitor status live with their spouses while applying for spousal sponsorship, and some refugees arrive pregnant or become pregnant while waiting for their claims to be processed.

“It would seem extremely punitive, even misogynistic, arguably, to say that no woman should be able to become pregnant or be pregnant if you’re not a permanent resident or a citizen of Canada,” Campbell said.

“Are we talking about three people a year, four people a year, flying into Canada (to give birth)?” he asked. “I’m not sure we even have any proof of that. There might be anecdotal proof out there in media articles, but if we’re talking two or three people a year, it’s hardly a national crisis justifying legislation.”

Vancouver Coastal Health, the authority that oversees the Richmond Hospital, said Thursday that taxpayers don’t pay for non-resident births. The agency provided its own statistics, which differed slightly from Griffith’s findings but which were also out of keeping with the numbers of non-resident births in Canada reported by Statistics Canada.

Statistics Canada says it generates its data from demographic information provided by vital-statistics registries in the provinces and territories. Parents complete these registry forms and are responsible for filing them with local registrars, the agency said. Griffith believes Statistics Canada might record lower numbers of non-resident births because parents put local addresses on these forms that aren’t their real permanent addresses.

As part of his response to Parliament, Hussen said Canada does not collect information on whether a woman is pregnant when entering Canada, nor can a woman legally be denied entry solely because she is pregnant or might give birth in Canada.

Source: Ottawa studying ‘birth tourism’ in light of new data showing higher non-resident birth rates

Brian Lilley in the Toronto Sun who also wrote an earlier piece on surrogacy and birth tourism:

When it comes to hot tourism spots in Canada, few would put suburbs like Richmond, British Columbia or Scarborough, Ontario up there with the CN Tower or the Rockies.

But to a certain kind of tourist, these suburbs, and specifically their hospitals, are all the rage.

A new paper from the Institute for Research on Public Policy shows birth tourism is growing in Canada’s major cities.

Written by Andrew Griffith, the former director general of Immigration Canada, the paper reveals significantly more women than thought are coming to Canada to deliver their babies and leave with a Canadian passport for their child.

“The level of birth tourism nationally is at least five times greater than the 300 births captured by Statistics Canada in 2016,” Griffith writes.

Instead of the Statistics Canada number, Griffith estimates that there were 3,628 babies born to foreign parents in 2017, and that doesn’t include numbers from Quebec.

“The impact of this practice can no longer be described as insignificant given its effect on the integrity of citizenship and public perceptions that birth tourism is a fraudulent shortcut to obtaining citizenship,” Griffith writes.

These figures don’t include landed immigrants or refugees, this is simply people who are simply visiting Canada when they give birth.

While some would be people visiting on a work or student visa, Griffith says that even with a conservative estimate of 40% to 50% the number is too high.

His search for better data on birth tourism was sparked by reports earlier this year showing more than 20% of births at the Richmond Hospital just outside Vancouver were due to birth tourism.

Of 2,145 births at this hospital in 2017-18, 469 were non-resident births.

The second highest hospital tracked by Griffith for the paper is Scarborough and Rouge Hospital — Birchmount site in Toronto’s East End and St. Mary’s Hospital in Montreal.

Both of those sites saw more than 9% of all births involve non-residents.

One thing all the hospitals on the list have in common is easy access to a major airport and direct flights in and out of Canada.

A petition sponsored by Liberal MP Joe Peschisolido, who represents the Richmond area, calls on the government to study the problem of birth tourism and take steps to end it.

So far the petition has garnered almost 11,000 signatures.

The previous Harper government considered taking action to stopping birth tourism but with StatsCan saying there were only a few hundred cases a year, the cost to enforce any new measures was deemed too high.

Now with higher and growing numbers, it is time to act.

The numbers tracked by Griffith show the number of births to non-resident mothers has just about tripled between 2010 and 2017.

None of this includes the numbers I revealed in this paper a week ago showing 44% of surrogacy births in British Columbia in 2016 and 2017 were for foreign based parents using a Canadian surrogate.

Each of those children, regardless of the status of the parents, gets full Canadian citizenship and all the benefits that entails. Even if the mother only flew into Canada and checked into the hospital for the express purpose of giving birth.

Isn’t that making a mockery of our system?

Doesn’t that debase Canadian citizenship?

There are lawyers, consultants and “global mobility solutions” experts offering services on having a baby in Canada in order to get a Canadian passport for the baby.

The Conservative Party passed a resolution at their convention this past summer to end the practice of birth tourism.

That move was instantly attacked by Trudeau’s top aide Gerald Butts as, “a deeply wrong and disturbing idea.”

You’ll recall that Trudeau famously campaigned to give back Canadian citizenship to convicted terrorists who had dual citizenship and who had taken up arms against Canada.

His mantra was that a Canadian, is a Canadian, is a Canadian.

It’s a handy catch phrase and useful when the real purpose is to try and sound compassionate and scare immigrants.

The truth is that under Trudeau Canada has still stripped many people of citizenship. From former Nazis to people that lied on their applications to come here.

The simple fact of the matter is that Canadians get to decide who gets citizenship, and we do that all the time.

Changing the law to end birth tourism, a growing and disturbing trend, would hardly be controversial for most Canadians.

Let’s hope someone in the political world has the courage to take up this issue.

Source: LILLEY: Birth tourism on rise across Canada | Toronto Sun

An article in The Breaker on the formal government response to the petition by MP Peschisolido (written before my article came out):

The federal Liberal government says it will undertake further research into birth tourism.

That, according to Immigration Minister Ahmed Hussen’s Nov. 19 response to an electronic petition initiated by Richmond activist Kerry Starchuk and sponsored by Steveston-Richmond East Liberal MP Joe Peschisolido.

Starchuk’s petition, which was supported by 10,882 people, was brought to the House of Commons on Oct. 5 by Peschisolido. It called upon the government to state it opposes birth tourism, commit public resources to determine the full extent of the practice and implement concrete measures to reduce and eliminate the practice. Under federal law, MP-endorsed electronic petitions that gain 500 or more supporters within four months are tabled in the House of Commons. 

Citizenship acquired through birth on soil has been in place since the first Canadian Citizenship Act of 1947, though it does not apply to children of anyone representing or working for a foreign government. Richmond Hospital averages one foreign birth a day and there have been cases where local mothers have been transferred to other hospitals to make way for foreign mothers. Petitioner Starchuk is also concerned with the potential future health and education costs to taxpayers.

The 354-word response said the government does not collect information on whether a woman is pregnant when entering the country, and a person cannot be deemed inadmissible or denied a visa if they are pregnant or if they may give birth in the country. But foreign nationals are required to state the purpose of their visit.

“Applicants must always be honest about the purpose of their visit. Providing false information or documents when dealing with Immigration, Refugees and Citizenship Canada or Canada Border Services Agency is considered misrepresentation and has significant consequences,” said the official response.

The response quoted from 2016 Statistics Canada data that said only 300 children were born to foreign women among the 385,000 babies born in the country that year. But that data has been discredited in media reports which found public agencies do not harmonize their research and there are loopholes that prevent accurate data collection.

The Richmond News reported in June that many non-resident women who give birth at Richmond Hospital list their address as a birth house or birth hostel where they are temporarily staying. Richmond Hospital saw a jump in self-pay births from non-resident mothers from 299 in 2015-2016 to 379 a year later. Most were from China.

RICHMOND HOSPITAL (MACKIN)

Should the birth house operator list the address of their home business at the hospital’s registration desk, the ministry would not count the baby as a non-resident,” the newspaper reported. “Only when the true address of the mother is registered, does the birth become a non-resident in the eyes of Vital Statistics B.C.”

The response said the federal government “recognizes the need to better understand the extent of this practice as well as its impacts. IRCC has commissioned research from the Canadian Institute for Health Information, which also show the number of children born to non-residents who were required to pay hospital expenses to be less than 1% of total births in Canada, and will undertake further research in this regard.”

Starchuk said the response lacks details about the government’s next steps.

“There’s no deadline, they’ve left it open-ended,” Starchuk told theBreaker. “How long are they going to take to do it?”

She was also perplexed why such a multifaceted issue attracted a response from only the immigration minister, but not the ministers of public safety (Ralph Goodale) or border security (Bill Blair).

The response also said the government is “committed to protecting the public from fraud and unethical consulting practices and protecting the integrity of Canada’s immigration and citizenship programs,” so it is undertaking a comprehensive review aimed at cracking down on unscrupulous consultants and those who exploit programs through misrepresentation.”

In 2016, Starchuk also petitioned the federal government to end birth tourism, but the December 2016 reply from then-Immigration Minister John McCallum dismissed the issue. McCallum was later appointed Canada’s ambassador to China.

Source: Feds to study birth tourism, but petitioner wants details

Lastly, an op-ed by Jamie Liew of University of Ottawa law faculty written before my analysis, quoting my comments dismissing the issue as insignificant given the previous numbers (my position has evolved :):

There’s been a lot of talk about getting rid of birthright citizenship in Canada and the United States. U.S. President Donald Trump announced that he’ll issue an executive order to do so, and the Conservative Party of Canada passed a motion that, should they form the next federal government, birthright citizenship will be no more.

In the U.S., the president will have to contend with the fact that he can’t just unilaterally eliminate a right granted in the 14th Amendment of their constitution.

In Canada, birthright citizenship can be eliminated simply by amending or repealing parts of the Citizenship Act.

In both countries, the preoccupation with ending birthright citizenship is tied to the argument that migrants are engaging in “birth tourism” and challenging the integrity of citizenship. But the facts say otherwise.

As Andrew Griffith, former director general at Citizenship and Immigration Canada, points out, fewer than 0.1 per cent of total births in Canada in the past 10 years (except 2012) involved births of children to foreign mothers. Griffiths concludes, “An impartial observer would conclude that there is currently no business case for changing Canada’s birth policy.”

Aside from the business case, what’s not talked about is how the elimination of birthright citizenship would affect not just migrants, but all of us. Undoubtedly, such a policy would increase the number of stateless persons in Canada.

Every person born in Canada to non-citizen parents would have to apply for citizenship. More tax dollars would be needed to process the applications. Clerks would suddenly have the power to make substantive and legal determinations about the status of every person who applies for citizenship. Like any administrative system, mistakes would be made. Bad or wrong decisions would be challenged in the courts at great expense to both the state and people affected. People would struggle with the fact that they are stateless in the interim.

Being stateless has serious implications.

Stateless persons have difficulty accessing education, employment, health care, social services and freedom of movement. Simple things such as getting a bank account, cellphone account or registering birth, marriage or death are complicated, if not impossible. Stateless persons would be subject to arrest, detention and potential removal to places they may never have been to.

The elimination of birthright citizenship would have the greatest effect on the most vulnerable: the indigent, the less educated, those with mental illness, children in precarious family situations or wards of the state. These are the people who may not have the appropriate paperwork or proof that they do qualify for citizenship or they won’t have support for obtaining citizenship.

This one policy would create an expensive social problem for the state.

The elimination of birthright citizenship is, then, not an act to preserve or protect the integrity of citizenship. The policy is a dividing tool that fuels discrimination against those of different races and socioeconomic classes. It’s a tool to delegitimize persons who have a genuine and effective link to Canada. It would create barriers to important rights that come with citizenship, including the right to vote.

We only need to look at how stripping citizenship and the denial of citizenship in other places of the world have encouraged discrimination, persecution and violence against stateless persons. For example, the oppression of and the genocide against Rohingya people was precipitated by denial of their citizenship in Myanmar, a country they called home for generations.

Canadians should be cautious when considering the idea to get rid of birthright citizenship. It wouldn’t stop migrants from coming. Instead of making it harder to get citizenship, we should trust our well-oiled immigration system to deal with the entry of persons within our country.

Such a policy would not build confidence in the integrity of Canadian citizenship. Instead, citizenship would be more precarious than ever before.

Canadians should also be mindful that Canada has signed onto the 1961 Convention on the Reduction of Statelessness and the Convention on the Rights of the Child, both of which obligate Canada not to create situations of statelessness.

My father was born stateless because the state he was born into didn’t confer birthright citizenship. It affected his opportunity for education, employment and his mental health.

Being a child of a previously stateless person, I’m proof enough that welcoming stateless persons to Canada with the conferral of citizenship is the best way to build a nation.

Source: Birthright citizenship affects all Canadians

 

Huge swing in favour of citizenship for all born in Ireland

Interesting shift. Shows the power of personal stories to change narratives (as happened with the

Alan Kurdi photo and Syrian refugees):

Seven out of 10 voters believe children born on the island of Ireland should be automatically entitled to citizenship, in an almost direct reversal of the result of the citizenship referendum 14 years ago.

A new Behaviour & Attitudes poll for The Sunday Times has found 71% of Irish voters believe anyone born in Ireland should be entitled to citizenship, while one in five (19%) feel they should not have automatic entitlement.

The poll was taken following the high-profile case of Eric Zhi Ying Xue, 9, a pupil in St Cronan’s national school, Bray, Co Wicklow, who was faced with deportation along with his Chinese mother, Leena Mei Mei Xue.

Source: Huge swing in favour of citizenship for all born in Ireland

Toronto Sun Editorial: Birth tourism growing issue in Canada (surrogacy)

The earlier op-ed in the Globe gets traction in the Sun (How Canada became an international surrogacy destination [another form of birth tourism]:

There were 102 babies born to surrogate moms in British Columbia in 2016 and 2017.

Of those, 45 were babies for parents from other countries.

Parents who travelled here to have their child delivered in Canada, who before they left picked up a Canadian citizenship for their child and who left Canadian taxpayers with the bills for the pregnancy of their surrogate mom as well as costs for the delivery and postnatal care of their newborn.

We know this thanks to reporting by freelance Globe and Mail writer Alison Motluk, who earlier this month wrote about Canada increasingly becoming a destination for international surrogacy.

It’s understandable that foreign parents, especially those who may need to turn to surrogacy to have a child, would find Canada and a bonus Canadian citizenship for their child attractive.

Surrogacy is prohibited in many countries and few countries permit surrogacy for non-residents, let alone pay for costs associated with the surrogate mom’s pregnancy, delivery and postnatal care costs.

Without doubt, some of those parents are likely desperate to have children and may have few options. On compassionate grounds, their desire to seek surrogacy here may be compelling.

However, an open-door policy for birth tourism is also troubling.

Why is citizenship being handed out to the children of birth tourists as a going away prize?

Citizenship is a privilege, something often earned at great cost and difficulty for the many millions of Canadians who immigrated to this country and made it their home.

Why on earth should Canadian taxpayers foot the hospital bills for foreign couples who want to have their babies in this country – $3,000 to $6,000 for uneventful births to potentially more than $90,000 for premature babies with complications?

Is birth tourism something we should be encouraging?

And although B.C. tracks residency data on parents, other provinces don’t.

So we’re not even sure of the scope of birth tourism in this country, let alone its costs.

As Brian Lilley wrote in the Sun on this issue, Real Women of Canada wants Ottawa to close loopholes that permit taxpayer subsidization for foreign surrogacy – something many European countries have already done.

Without such change, there’s little doubt Canada increasingly will become a destination for birth tourism.

Source: EDITORIAL: Birth tourism growing issue in Canada

And the Lilley piece that prompted the editorial:

Call it birth tourism of another kind.

We’ve all heard stories about mothers arriving in Canadian cities just in time to give birth so their child can get Canadian citizenship.

But what about foreign parents having a kid in Canada via surrogacy?

It is happening and it is growing.

In 2016 and 2017 there were 102 babies born to surrogate mothers in British Columbia. A shocking 45 of those babies were born to parents from outside of the country.

Here is the crazy part, you are paying for it and the baby that is quickly whisked off to a foreign land is granted automatic Canadian citizenship.

The numbers, first reported by freelance journalist Alison Motluk in the Globe and Mail, show what experts believe to be a growing issue in Canada.

While surrogacy is tightly regulated in Canada, we are one of a handful of countries that allow foreign parents to find a surrogate within our borders. We also have “free” health care, meaning the “intended parents” of the child born by surrogacy aren’t on the hook for the bill.

Estimates for the cost of an uneventful birth range from $3,000 to $6,000, not including any prenatal or postnatal care. With 45 births in B.C. to foreign parents, that means taxpayers were out $135,000 to $270,000 in health care costs for the birth alone.

If there are complications those costs skyrocket. Estimates say care for a premature baby could top $90,000.

All of that paid for by Canadian taxpayers for a baby that will be shuffled home to a foreign country as soon as all the paperwork is complete.

Those numbers I’ve given you are for B.C. alone. Other provinces either do not keep or will not release stats on the number of surrogate babies for foreign parents.

Whatever the number in other countries, expect this to grow in Canada.

As other countries crackdown on foreign surrogate parents or don’t allow the procedure for non-residents, Canada has no such rules. We also offer complete health-care coverage for the Canadian surrogate and citizenship for the child upon birth.

That means a Canadian passport for life and easier entry, maybe even sponsorship of the parents later in life.

Other countries also make you pay to use their facilities.

One American company offering surrogacy charges a low of US$39,400 in Mexico to a high of US$64,900 for the “Guaranteed Baby” program in Ukraine.

With prices like that, no wonder Canada is becoming a more attractive destination for this kind of birth tourism.

The group Real Women of Canada, which is outright opposed to surrogacy, says the federal government should at least be looking to close this loophole allowing couples from other countries to have their child’s birth subsidized by Canadian taxpayers.

In a submission to Health Canada, which is looking at modernizing rules and regulations around surrogacy, the group calls for non-Canadians to be barred from using Canada as a surrogacy destination, something many European countries already do.

Any discussion of such a ban would be a sticky one for the government, in fact any discussion of the issue is sticky.

Emotions will run high, claims of targeting specific groups will be made.

Here’s an idea though, let’s get better information on this.

It’s understandable that foreign parents may want to give their child the privilege and advantages of a Canadian passport. That’s why we have an immigration system.

But let’s find out from each of the provinces how often this is happening.

Are Canadians paying for the hospital care for babies born to foreign parents?

Are we paying for expensive neonatal care or even IVF treatments so foreign couples can have a child?

Are we handing out citizenship to children that will not live here? And if so, how often is this happening?

This looks like the type of thing  people didn’t think of when the current regulations were devised.

More than a decade in, maybe it’s time we had some honest conversations about what we want to allow, who is going to pay for it and who should actually get a Canadian passport.

Source: LILLEY: Canadians paying bills for birth tourism

When the Dominican Republic Erased Birthright Citizenship

Useful history lesson, even if any proposal for change in Canada would not be retroactive:

This is a story about what happens when you limit birthright citizenship and stir up hate against a certain class of immigrants. It takes place in the Dominican Republic. Like most countries in the Americas, for a century and a half the Caribbean nation’s constitution guaranteed birthright citizenship for anyone born on its soil, with a couple of exceptions: the children of diplomats and short-term travelers. And like most other peoples in the Americas, Dominicans have had a more complicated relationship with immigration than the framers of that constitution might have anticipated.

The Dominican Republic has long been dependent on a steady stream of cheap immigrant labor that cuts its sugar cane, builds its buildings, and staffs the beach resorts that draw in billions of foreign dollars a year. Almost all of that labor comes from the only country close enough, and poor enough, to have people who want to immigrate in large numbers to the Dominican Republic: its Hispaniolan twin, Haiti. Some working-class Dominicans without clear Haitian roots resent poorer neighbors willing to accept lower wages and tough conditions. Many wealthy Dominicans who profit wildly off the cheap labor supply are eager to have strict immigration laws in place, too—not because they want less immigration, but because they want a freer hand. Immigrants in the country illegally have no protection from workplace regulations and can be rounded up, deported, and replaced whenever convenient—including right before payday. (Sound familiar?)

The Dominican Republic also has a long, brutal history of anti-Haitian racism. During his rule from 1930 to 1961, the fascist dictator Rafael Trujillo built a racialized concept of Dominican national identity on the fuzzy idea that the descendants of Spanish slavery on the eastern part of the island had higher levels of European ancestry than, and thus were superior to, the descendants of French slavery on the western part of the island. This rhetoric led to a 1937 rampage in which Dominican soldiers and allied citizens massacred thousands of people who they identified as Haitians. They forcibly separated people who’d long mixed together in vaguely delineated borderlands, consecrating a new national boundary that had been set largely by the occupying U.S. military a few years earlier, but which until then existed mostly on paper.

In the decades that followed, Haitian migrants in the Dominican Republic remained largely confined to isolated company towns in the cane fields, known as bateyes. But in the late 20th century, Haitian immigrants and their Dominican-born children left to work in other parts of the Dominican economy. Nationalists, who’d grown up learning Trujillo’s propaganda, began to rethink the law.

Because nationalists tend to be political conservatives, they often feel pressure to pretend that the radical changes they’re making aren’t changes at all. In the 1990s and early 2000s, right-wing Dominican politicians tried to stretch a tiny loophole in birthright citizenship into a chasm big enough to swallow anyone of Haitian descent. Their main strategy was to claim that everyone with Haitian roots was “in transit,” no matter how long they (or even their parents) had lived in the country. Authorities also refused to issue Haitians’ children birth certificates, or ripped up the ones they had. Sympathetic local media helped make synonymous the words ilegal, inmigrante (immigrant), extranjero (foreigner), and haitiano. Even foreign reporters got used to referring to people of Haitian descent in the Dominican Republic—an estimated 500,000 to 1 million people, or roughly 10 percent of the Dominican population—as “Haitian migrants,” even though that category includes an estimated 171,000 Dominican-born Dominicans with two Haitian parents, and another 81,000 people with one.

Courts did not like this. The Inter-American Court of Human Rights ruled that the Dominican government’s treatment of people of Haitian descent violated not only international human-rights law but also the Dominican constitution. Dominican presidents ignored the rulings, and ultimately pulled out of the treaty establishing the court. In 2010, the government called a constitutional convention, in large part to exclude a new group from the birthright-citizenship clause: the children of anyone “residing illegally in Dominican territory.” Given the spotty distribution of birth certificates, faulty census-taking, and lackluster registration efforts in the country’s impoverished areas, this change was bound to create widespread confusion. But the government’s target wasn’t poor people in general. It was people of Haitian descent.

Even that maneuver was not enough. Under all international or national norms, the new provision could only apply to people born after the new constitution came into force. But Dominican nationalists were more concerned about adults than newborns. Fortunately for them, the new loophole had a loophole: a new “constitutional tribunal”—separate from the existing supreme court—given the “definitive and irrevocable” right to interpret the constitution.

In one of its first acts, the tribunal justices—picked by former President Leonel Fernández and a small group of other leaders—took up the languishing case of a Dominican of Haitian descent named Juliana Deguis Pierre. She had sued when officials in her town refused to give her a national ID card—needed to vote and access social services—because, she said, of her dark skin and Haitian last name. Instead of ruling on whether she had been discriminated against, in 2013 the tribunal declared that Pierre should never have had citizenship in the first place because her parents didn’t have sufficient documentation to prove residency when she was born. Then it went even further, ruling that all those who could not prove that their parents had been legal residents when they were born—going all the way back to 1929, when the “in transit” exception was added to the constitution—were not citizens. Those affected were ordered to register with the government as foreigners by June 17, 2015.

Again, this order was clearly aimed at people of Haitian descent. Hundreds of thousands who had been Dominican citizens all their lives suddenly risked being rendered stateless and eligible for deportation.

It was obvious to human-rights groups, the United Nations, and pretty much anyone watching that the Dominican government was doing an end run around some of the most important principles of the rule of law—namely, that you can’t change the rules and then go around punishing people for having violated them in the past. The tribunal bent over backward to argue that nothing had changed, while taking 147 pages to explain the new situation.

A fundamental fact that sometimes gets missed in discussions about laws and court rulings is that they’re just words on paper. What those words signify to the people they govern is often just as important as what the law actually says. For instance, the original 1865 jus soli, or “place-of-birth,” birthright-citizenship provision in the Dominican Republic—enacted three years before the U.S. emerged from its Civil War with a Fourteenth Amendment and jus soli provision of its own—signaled a vision of the new Dominican state as a place open to just about everyone. As the historian Anne Eller has written, the provision came in a moment of heightened international cooperation when Haitians, who had thrown off French colonialism and slavery more than 60 years earlier, helped Dominicans win their final and lasting independence from Spain.

The 2010 constitution and the tribunal’s subsequent ruling signaled the opposite: that the Dominican Republic should be a place where poorer, blacker, more vulnerable workers—Haitians—were not welcome. And Dominican nationalists were determined to push that message to the hilt. Armed with the ruling now known simply as La Sentencia—literally “the verdict”—the whole country seemingly prepared itself for a mass expulsion. The military readied deportation buses and border-processing centers for the June 2015 registration deadline. Online trolls threatened critics and spread racist invective. Facebook and Twitter were filled with an ultranationalist, anti-Haitian narrative of Dominican history, which erased historic alliances and played up real and imagined abuses. Many pushed their completely unfounded belief that the true intention of Haitian immigrants and their children was to conquer the Dominican Republic and raise Haiti’s flag over the entire island.

Many Dominicans are not bigoted against immigrants. But as the deadline neared, the voices of liberals and moderates were drowned out in a sea of nationalist invective. The government framed the growing criticism of their policies as an “international campaign to discredit the Dominican Republic.” Nationalists simply branded those who disagreed with them as traitors. Emboldened by their government, sensing the moment was at hand, armed nationalists marched through Dominico-Haitian barrios and towns. In February of 2015, a Haitian man was lynched in the center of the country’s second-largest city, Santiago. When television footage of his body left dangling from a tree spread across the country, Santiago police blamed two undocumented Haitian immigrants for the crime. Dominican nationalists held a rally nearby and burned a Haitian flag.

Under pressure from the international community and fearing tourism boycotts, President Danilo Medina caved—somewhat. He proposed a second registration program that would offer a path back to citizenship to some of the people his government had just made stateless. The details were confusing, but that was the point. Hundreds of thousands of people of Haitian descent in the Dominican Republic now lived in a state of institutionalized terror, enforced by police, the military, and vigilante mobs. Instead of the feared one-day mass expulsions that had drawn so much attention, Dominican authorities took a quieter approach. They deported an estimated 70,000 to 80,000 people of Haitian descent—more than a quarter of the Dominico-Haitian population—piecemeal over the next three years, according to Human Rights Watch. Tens of thousands more felt they had no choice but to escape across the border on their own.

In late 2015, I went to the Haitian border to visit makeshift camps that were home to thousands of people who had fled for their lives. Many had never been to Haiti before and didn’t know where to go. They had taken shelter in shacks made of cardboard boxes, tree branches, old clothes, and whatever other scraps they could find. Food was scarce. The shacks frequently burned down. People were forced to get their water from a dirty river. I met a grieving couple whose son had just died from cholera.

Many in the camps told me that they hoped the situation would soon calm down, and that they would be able to return. I doubt many have. According to Human Rights Watch, the Dominican government has only restored citizenship documents to about 19,000 of those denationalized in the five years since La Sentencia. Violence continues to break out between nationalists and people of Haitian descent along the border. Fear runs high. One leader of the Dominican hard right has proposed building a border wall. (No word on who might pay for it.)

Nor are there any clear signs that the purges and intimidation have helped non-Haitian Dominicans. Thanks largely to the fact that Americans and Europeans still flock to the country’s all-inclusive resorts, the Dominican economy is still growing. But that growth has slowed.

On the eve of the feared mass expulsions, to drive home the absurdity and danger, the renowned Haitian American author Edwidge Danticat compared the situation to a wild hypothetical: “It’s as if the United States said, ‘Yes, everybody who has been here since 1930, you have to prove you’re a citizen. You have to go back to the place where you come from to get a birth certificate from there.’”

For some Americans, that was not a joke. It was an aspiration. Breitbartreaders roared their approval for the Dominican strategy under an article about the planned expulsions in June 2015. Several weighed in with racist invective about “the black Haitian people.” “Get Some, Dominican Republic!” one commenter wrote. Another felt inspired: “It is past time that we end birthright citizenship here in the US. I wouldn’t be as extreme as the DR was. Ending it retroactively for anyone born after 1929 seems a bit harsh but I would have no problem ending it for anyone born after 1980 … It is time for America to put Americans first.”

The day before the migrant registration deadline in the Dominican Republic, Donald Trump rode the gold escalator into the lobby of his New York office building and declared his candidacy for the White House with a racist tirade against immigrants. Before the summer was over, he announced his intention to end place-based birthright citizenship. As president, Trump has hired several opponents of jus soli birthright citizenship to immigration posts. One of them, Senior Immigration and Customs Enforcement (ice) Advisor Jon Feere, has praised the “clarity” of the Dominican Republic’s new immigration-limiting constitution.

Before the midterm elections, President Trump declared that he wanted to repeal the citizenship clause of the Fourteenth Amendment through an executive order. To anyone even passingly familiar with constitutional law, that seems like nonsense. Automatic place-based birthright citizenship has been a well-established practice for white immigrants since the United States was founded. It was enshrined as a universal right in the Fourteenth Amendment, and has been upheld for people of all races and classes since a Supreme Court decision in 1898. A U.S. president can’t just throw out part of the constitution—as even the outgoing Republican speaker of the House, Paul Ryan, noted.

But as Dominicans have ably shown, the most extreme rhetoric has a way of becoming real. And the consequences of inciting millions of people against vulnerable groups of immigrants are impossible to control. Representative Steve King—a freshly reelected white-supremacist Republican from Iowa who favorably retweets neo-Nazis—regularly introduces bills that are eerily similar to the Dominican law: denying birthright citizenship to anyone without a parent who is a citizen or “lawful permanent resident” of the United States. In late October, King crowed: “I am very happy that my legislation will soon be adopted by the White House as national policy.” And supposedly sober-minded conservatives may be little help. Days after criticizing the president, Ryan tried to walk back his comments, telling Fox News that he agreed the Fourteenth Amendment “should be reviewed.”

Source: When the Dominican Republic Erased Birthright Citizenship

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

ICYMI: The Intellectual Origins of Trump’s Chilling Immigration Plan

Worth reading:

Hunched forward in his chair, his fingertips and thumbs forming a familiar diamond shape, Donald Trump seemed to anticipate the question that Axios’s Jonathan Swan was about to ask him. “On immigration, some legal scholars believe you can get rid of birthright citizenship without changing the Constitution—” Swan began, before Trump cut him off gingerly. “With an executive order,” he interjected. “Exactly,” Swan replied. “Have you thought about that?” The president didn’t miss a beat. “Yes.”

The video teaser of the interview, which will appear in Axios’s forthcoming documentary news series on HBO, erupted in the middle of a news cycle driven by Trump’s inflammatory comments regarding immigration—his decision to dispatch the military to the U.S.-Mexico border, relentless fear-mongering over a migrant caravan of Central American “invaders,” and a white-supremacist terror attack inspired by Jewish aid for refugees. Trump, who is presiding over a midterm election next week that could determine control of the House, has been betting that a hard-line message on immigration will drive G.O.P. turnout. Yet even for a party that has largely aligned itself with the president’s nationalist rhetoric, what Trump proposed was radical and largely without precedent. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” the president continued in his conversation with Swan. “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.” His subsequent claim—that the U.S. is the only country that bestows citizenship upon anyone born within its jurisdiction—was false, but the racial anxiety he was tapping into is real. “[A] person comes in, has a baby, and the baby is essentially a citizen of the United States . . . with all of those benefits. It’s ridiculous. It’s ridiculous. And it has to end.”

The idea of revoking birthright citizenship has wended its way through Washington for years. Democrat Harry Reid, former Senate Majority Leader, proposed revoking birthright citizenship in 1993, before repeatedly apologizing for it. (“I didn’t understand the issue. I’m embarrassed that I made such a proposal,” he told the Las Vegas Review-Journal.) On the right, fear of “anchor babies” has been exploited politically by even moderates such as Jeb Bush, who invoked the issue in 2015. But Trump’s decisive claim that he could get end birthright citizenship with the stroke of a pen caused critics to drop their jaws. “He obviously cannot do that,” said House Speaker Paul Ryan, noting the intractable reality: birthright citizenship has been enshrined in the 14th Amendment for 150 years and would require no less than an act of Congress or a Supreme Court challenge to knock it down, an endeavor the vast majority of legal scholars consider impossible.

Regardless of whether it is a midterm stunt, Trump’s fever dream has very real origins in the scholarship of the Claremont Institute, a right-wing think tank based in Southern California—the front line, incidentally, of illegal border crossings. The current legal argument for revoking birthright citizenship, which had percolated on the left and right in the 90s, began gaining traction in 2006, when John C. Eastman, a Claremont Institute affiliate who is a professor at Chapman University’s Fowler School of Law, published an article for the Heritage Foundation laying out a three-point argument to challenge the authority of birthright citizenship. First, according to Eastman, at the time of the 1866 Civil Rights Act, children born to foreigners were “not entitled to claim the birthright citizenship” provided by the act. Since the Act eventually became the backbone of the 14th Amendment, therefore, the original interpretation of citizenship should take precedence. Second, he argued the reading of the 14th Amendment—that birthright citizenship can be bestowed upon anyone who is “subject to the jurisdiction” of the United States—was overbroad; in Eastman’s reading, citizenship can only be bestowed upon people with “total and exclusive allegiance” to the country. If a child’s parents had not pledged fealty to America, either by becoming full citizens or establishing permanent residence, their loyalty to the Constitution would, by all definitions, be as temporary as that of their parents. (The common legal interpretation of ”subject to the jurisdiction” is that anyone who enters the country, no matter how briefly, are subject to U.S. laws.) Finally, he wrote, the policy was a medieval remnant inconsistent with the Founding and the notion that Americans need consent to be governed: “This consent must be present, either explicitly or tacitly, not just in the formation of the government, but also in the ongoing decision whether to embrace others within the social compact of the particular people.”

The next year, Edward J. Erler, a Claremont scholar and one of the original thinkers on birthright issues, published a bookwith two colleagues examining what reviewer and Hoover Institution fellow Victor Davis Hanson deemed the problem of “massive illegal immigration from Mexico” for the American identity: “How did the founders and their successors deal with problems of being an American, and what are the effects of massive noncompliance with the laws of the United States?” Apart from several additional treatises they published, however, the idea never caught on with the rest of the conservative legal community. “It’s certainly in the idea of originalism, in that it relies that you understand the text at the time it was written, [but] there are a lot of people, even in that broadly conservative camp, that just reject it,” said Corey Brettschneider,professor of political science and public policy at Brown University, and the recent author of The Oath and the Office: A Guide to the Constitution for Future Presidents. “There are a couple of scholars that are pushing it, but it’s not a mainstream view even in conservative circles. That’s because it’s kind of wacky.”

Over time, Eastman and Erler’s legal arguments were adopted in Washington as part of various efforts to curb illegal immigration. In 2010, a small group of Republican senators, including Jeff Sessions, Mitch McConnell, and John McCain, floated the idea of holding hearings on the issue; Wisconsin Governor Scott Walker proposed a similar plan in 2015. Most conservative figures in Congress, to say nothing of the pro-immigration donor class, balked. But when Trump launched his unconventional, nativist-pandering campaign, legal birthrightists held out hope that he could indeed become their political vessel to revoke the law. “Political pundits believe that Trump should not press such divisive issues as immigration and citizenship. It is clear, however, that he has struck a popular chord—and touched an important issue that should be debated no matter how divisive,” Erler wrote in National Review in August 2015. At the same time, Erler acknowledged foreseeable roadblocks. “Republicans want cheap and exploitable labor and Democrats want future voters,” he said.

By early 2016, Stephen Miller was forcefully pushing for an end to the birthright privilege, calling it the linchpin in the administration’s immigration policies. “Birthright citizenship really is the ultimate magnet for illegal immigration,” he told the Daily Caller that February, outlining the traditional conservative fears of chain migration, anchor children, and the decreased likelihood of deportation. “[It’s] an open, worldwide invitation to ignore America’s immigration laws and an absolute perversion, misinterpretation, misapplication of the 14th Amendment.” Miller then suggested that Trump could do it more easily than the media or legal scholars imagined: “You could do it through a variety of different means, whether it be legislatively, whether it be through potential guidance that’s issued.”

According to Axios, the Trump administration had been quietly working on this policy for months, and Trump himself was surprised that Swan brought it up in their interview. (“I didn’t think anybody knew that but me. I thought I was the only one.”) But the revelation of the plan—only weeks away from the midterm election, and in the middle of Trump’s furious posturing on the migrant caravan winding its way to the southern border—immediately won plaudits among several of Trump’s allies, with Lindsey Graham announcing that he was completely on board. More sober-minded Republicans told Politico that they opposed Trump taking action via executive order, and would perhaps try to tailor the breadth of the amendment’s application in Congress. Nevertheless, ending birthright citizenship unilaterally, they concurred, was a bad idea. “As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process,” said Ryan. “But where we obviously totally agree with the president is getting at the root issue here, which is unchecked illegal immigration.”

The Talmudic ponderings of Congress, however, may be less important than the energy this will automatically inject into the election—not just for Democrats enraged about Trump’s treatment of illegal immigrants, but also for conservatives prioritizing border control. Indeed, if a talk Erler delivered in April at Hillsdale College is any indication, birthright citizenship is only one facet of the great threat of political correctness, progressive equalization, and the horrors of plurality looming over the American experiment. “Greater diversity means inevitably that we have less in common, and the more we encourage diversity the less we honor the common good,” he said at the time, calling multiculturalism “a solvent that dissolves the unity and cohesiveness of a nation.” He condemned Republicans for caving so quickly to any accusations of racism, sexism, classism, and homophobia. “Only President Trump seems undeterred by the tyrannous threat that rests at the core of political correctness,” he explained.

Source: The Intellectual Origins of Trump’s Chilling Immigration Plan

Myths about shared culture have no place in the citizenship debate: Kenan Malik

Interesting and valid reflections that culture has never. been as monolithic as some immigration critics, looking back with nostalgia, imagine:

What links Mike Leigh’s new film, Peterloo, to Donald Trump’s threat to deprive children born to undocumented migrants of the right to US citizenship? It might seem an odd question, best left to Only Connect fans. But answering it helps give an insight into some of the ways we think about immigration and citizenship.

Trump wants to restrict the scope of the 14th amendment, which guarantees citizenship to anyone born on US soil. It’s the latest move in a long history of attacks on “birthright citizenship”, a history defined by a desire to create fears about an “alien” presence and to cast some Americans as not truly belonging to the nation.

There is more to the debate, however, than fearmongering. It speaks to wider questions about the nature of citizenship and of national belonging. It has resonance on this side of the Atlantic too.

The United States, according to Trump, is the only nation “stupid” enough to permit birthright citizenship. In fact, virtually every country in the Americas does so. But not one in Europe. Yet this is not a New World/Old World divide. The roots of both birthright citizenship and opposition to it lie in Europe.

Two broad approaches to citizenship are formally labelled jus soli and jus sanguinis. Jus soli (right of the soil) is the right to citizenship of anyone born in a country. Jus sanguinis (right of blood) defines citizenship as an inheritance through one or both parents, who themselves need be citizens. What Americans call birthright citizenship is jus soli (though both forms of citizenship can be a birthright, automatically conferred at birth).

The distinction between the two has traditionally been seen as that between French and German conceptions of citizenship. The French republican tradition views citizenship from a universalist perspective, without regard for ethnicity or culture. German nationalism draws upon Romantic ideas of the Volk, rooted in a specific history, culture and race.

The reality is more complicated. For a start, the US concept of birthright citizenship derives not from French republicanism but from English common law. More importantly, jus soli and jus sanguinis have long been intertwined in policy. France introduced in the 19th century a “blood” element to citizenship: only those born in France with a French parent are automatically granted citizenship at birth.

In Britain, the 1981 Nationality Act restricted automatic citizenship at birth to those at least one of whose parents was British or had permanent residency rights.

In both countries, wariness about jus soli was driven by the sense that certain groups were incompatible with the nation. In the 19th century, Jews were cast as the unassimilable “other”. More recently, North Africans or West Indians were given that role. Today, it’s often Muslims.

Today, too, such fears have been recast in the debate about populism and social fragmentation. The philosopher Michael Walzer, influential in communitarian and postliberal circles, argues that in the past there existed an organic relationship between the political community and the cultural community. This allowed for “language, history and culture [to] come together… to produce a collective consciousness” and “a world of common meanings”.

Immigration has served to disrupt this, making societies seem more fragmented. For nations to flourish, Walzer insists, they must regulate immigration and citizenship so as to protect their historical and cultural integrity.

The lesson that some, such as the academic Eric Kaufmann, draw from this is the need to employ racial and cultural criteria in selecting immigrants. There is nothing racist, Kaufmann insists, in an immigration policy that seeks to maintain the “white share of the population”. It is a pragmatic response to assuage social anxiety and protect cultural integrity. Fear of populism and the triumph of identity politics have transformed what we imagine is racist.

Enter Peterloo. Leigh’s austere, harrowing portrayal of working-class struggles for democracy does not touch upon the question of immigration. In exposing the fractures of 19th-century Britain, however, it exposes, too, the myth that, until disrupted by immigration, nations existed as organic political and cultural communities defined by a “collective consciousness”. Societies have always ruptured along class, religious, cultural and ideological lines. From the English Civil War to the anti-slavery struggles to the suffragettes to the miners’ strike British history is one of contestation. As is that of all countries. Obsession with immigration has made us blind to that history.

On neither side of the Atlantic will it help in thinking about charged issues around immigration and citizenship to cling to historical myths or be blinkered to the consequences of our answers.

Source: https://www.theguardian.com/commentisfree/2018/nov/04/myths-cultural-integrity-no-place-immigration-debate

Canada needs an honest debate about birthright citizenship: Konrad Yakabuski

Good balanced piece by Yakabuski ahead of the government’s response to the petition by Steveston—Richmond East MP Peschisolido (Yet another petition on birth tourism).

I am working on an analysis of the numbers based upon hospital financial data for non-residents (includes some other temporary residents and Canadian expatriates) – stayed tuned:

No one was surprised to learn that Donald Trump was wrong when he declared that the United States is “the only country in the world” that grants birthright citizenship. The U.S. President rarely lets the facts get in the way of an opportunity to score political points on the backs of immigrants.

Unsurprisingly, he was also wrong in suggesting he could revoke U.S. birthright citizenship, which is entrenched in the U.S. Constitution, with the simple stroke of his own pen. But on the eve of midterm elections that will determine control of the U.S. Congress, stoking outrage toward illegal immigrants who give birth on American soil is par for the course for Mr. Trump.

Unfortunately for Canada’s Conservatives, who adopted a resolution at their August convention calling for an end to “birth tourism” in this country, Mr. Trump’s outburst now risks tainting our own debate about birthright citizenship. Even before the U.S. President evoked ending birthright citizenship in his country, opponents seized on the passage of the Tory resolution to score points of their own. New Democratic Leader Jagmeet Singh attacked the “division and hate” peddled by Conservatives. Prime Minister Justin Trudeau’s principal secretary, Gerald Butts, accused the Tories of seeking to “strip people born in Canada” of their Canadian passports.

To be clear, any attempt by the Conservatives to scapegoat certain immigrants for political gain should be condemned. But so should Liberal and NDP attempts to tar the Tories with labels they don’t deserve merely for raising concerns about a phenomenon that undermines the integrity of our immigration laws. Birth tourism, the practice of foreign women coming to Canada to have their babies merely to obtain a Canadian passport for their offspring, is by all accounts a real and growing problem. Is it a big enough problem to warrant an end to birthright citizenship here? Unfortunately, we don’t have good enough data to know. Statistics Canada data on births to non-resident mothers provide an incomplete picture and conflict with evidence reported by hospitals.

In the United States, birthright citizenship emerged as a constitutional principle in the wake of the U.S. Civil War to ensure that freed slaves were entitled to all the rights and privileges of white citizens. It is rooted, hence, in that country’s long struggle against slavery and racial discrimination. Any attempt to deprive those born on American soil of U.S. citizenship would not only require a near-impossible constitutional amendment, it would needlessly reopen old wounds.

In Canada, the issue is not nearly as fraught with symbolism as it is south of the border. Birthright citizenship is a feature of our immigration law, not the Constitution, and can be changed with an act of Parliament. What’s more, federal lawyers recently argued that Canadian citizenship could not be claimed by the Canadian-born children of Russian spies, insisting that even this Liberal government believes the principle of birthright citizenship has its limits.

In most cases, foreigners who travel to Canada to give birth are not desperate, nor are their children at risk of becoming stateless, since they would inherit their parents’ citizenship, anyway. Most appear willing to pay hefty non-resident medical fees to have their babies delivered at Canadian hospitals or stay at for-profit “birth houses” catering to Chinese tourists.

Canada would not be the first country to end birthright citizenship, in part to end the practice of birth tourism. Several developed countries, including Australia, have done so in recent decades. As Canada becomes one of the last “rich” countries outside of the United States to grant automatic citizenship to those born on its soil, we should expect the incidence of birth tourism to increase in the future. That suggests we need to be prepared to have this debate, sooner or later.

The August Conservative resolution called for legislation to eliminate birthright citizenship “unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.” Leader Andrew Scheer insisted the policy was aimed strictly at ending “abuse” of our immigration laws, adding: “Conservatives recognize that there are many Canadians who have been born in Canada by parents who have come here to stay and have contributed greatly to our country. I will not end the core policy that facilitates this.”

It would be premature to change our immigration laws before we evaluate alternatives, such as stricter visa requirements, to prevent birth tourism. Ottawa also needs to collect better data to determine the scope of the problem. But we should not let the spectre of Mr. Trump stop us from having a debate about our immigration laws that, if we wait too long, could become inevitable.

Source: Canada needs an honest debate about birthright citizenship: Konrad Yakabuski