Court grants Trudeau government extension to fix ‘lost Canadians’ citizenship rules — with a catch (3 slightly different reports)

2024/06/22 Leave a comment

Appears that Justice Akbarali is being activist, not only in her interpretation citizenship rights but also with respect to setting an unreasonably short timeline for compliance.

She certainly would know that developing, passing and implementing legislation takes longer than six months and a month extension, over the summer months when Parliament sitting, is meaningless. Given the possibly large numbers involved and the policy and operational implications (judges tend to underestimate the latter), thorough review will be needed.

The numbers we have are provided that the advocates indicate a likely upper limit of 1.5 million, not negligible in terms of impacts. It is striking that IRCC has not yet provided its estimates of the number of persons affected, including those of women first-generation born abroad of child bearing age (estimates of the total number of expatriates are imprecise with StatsCan settling on 4 million).

Of course, like so many of these initiatives, there is an assumption than many, if not most, “lost Canadians” want to be “found.” Whenever the government makes a change to address “lost Canadians” or expand voting rights to expatriates, the actual numbers are relatively small as seen through citizenship proofs and expatriate voting rights.

More to come over coming months:

Starting with The Star:

The federal government has been given a last-minute reprieve to roll out a new law to restore the citizenship rights of “lost Canadians” born outside Canada.

That’s despite its failure to have a proper plan in place to address urgent cases affected by the delay.

Six months ago, Ottawa was ordered by an Ontario court to repeal what’s known as the “second-generation cut-off” rule and amend the current Citizenship Act by June 20, after a judge ruled it’s unconstitutional for Canada to deny automatic citizenship to children born abroad because their parents also happened to be born overseas.

On Wednesday, at the eleventh hour, the government pleaded for a six-month extension of the deadline, arguing that it had already introduced an amendment bill, C-71, in May to confer citizenship to those affected by the current law and address the legislative gaps to ensure others won’t fall through the cracks in the future.

Officials contended that the legislative process takes time and it is a “complex undertaking” that would involve preparing training materials for immigration staff, forms, website pages and co-ordination, among other things.

However, Judge Jasmine Akbarali only agreed to grant the government seven weeks’ relief, until she can reassess the progress made to create an interim plan to handle urgent citizenship requests by lost Canadians and to push for the passage of Bill C-71 by Dec. 19.

In reaching her decision, the judge said she had to balance the government’s need to properly fix the problems and the hardship affected Canadians will continue to suffer as a result of the delay.

“While it has been working on the legislation, the respondent has not proceeded with any sense of urgency to rectify the unconstitutional aspects of the legislation,” Akbarali in her decision released Wednesday evening. 

“It does not propose an effective mechanism to address the hardship that a further six-month suspension will cause to people whose constitutional rights are being violated day after day.”

An estimated 170,000 women in the first generation born abroad, who are in the age range at which people often choose to start families, are still being affected by the current law when making those important life decisions, the judge noted.

In chiding the government for its tardiness, the court referred to a couple of other bills that officials successfully pushed through recently, including Bill C-62, an Act respecting medical assistance in dying, which went from first reading to royal assent within the month of February.

“There is no explanation as to why this bill is languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire,” said Akbarali.

“The unconstitutional law remains on the books, and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved.”

She said it’s insufficient for the government to grant citizenship to lost Canadians at the immigration minister’s discretion, as proposed, during the interim before the amended bill is enacted, supposedly by Dec. 19, because that process is “ineffective, and also poorly communicated.”

Toronto lawyer Sujit Choudhry, who represented the six lost Canadian families in the constitutional challenge, said his clients are pleased with the court decision, which also included granting three of the families the sought-after citizenship and $35,064.47 in partial indemnity costs.

“They now have the full benefit of the court’s judgment,” Choudhry said in an interview. “They are not second-class citizens anymore. It was very important for them that there be accountability. They led this fight not just for themselves, but for everyone like them.”

The parties are to reconvene on Aug. 1 to hear the government’s updates on its interim plan to deal with pending citizenship applications of lost Canadians and steps to pass Bill C-71 by the proposed extended deadline. The court will then make a final decision on the full extension to Dec. 19.

The “second generation” cut-off against Canadians born abroad was first introduced by the then Conservative government, which also removed the so-called “connection test” for these descendants to reclaim citizenship based on their ties to Canada. Despite several amendments to the act, there remain many lost Canadians.

Source: Court grants Trudeau government extension to fix ‘lost Canadians’ citizenship rules — with a catch

CBC:

So-called “lost Canadians” will have to wait longer to obtain their right to citizenship now that a court has granted the federal government more time to fix legislation it ruled was unconstitutional.

The courts initially gave the federal government until today to replace legislation that prevents Canadians born abroad from passing on their citizenship to children also born abroad.

In May, the Liberals introduced Bill C-71, which introduced sweeping changes to Canada’s citizenship laws. The government says the legislation addresses the concerns of the court.

But the Liberals did not get the bill through the House of Commons before it rose for the summer on Wednesday. MPs will not return to the Commons until mid-September.

In handing down the extension to Aug. 9 on Wednesday, Ontario Superior Court Justice Jasmine Akbarali slammed the pace of the legislation’s passage through the House. She noted that other pieces of government legislation moved swiftly to the Senate, while a citizenship bill responding to the violation of a legal right still remains in its early stages.

“I am troubled by the fact that, after taking over five months to introduce Bill C-71, in the almost-month that has passed since then, the bill has not reached second reading,” Akbarali said.

“There is no explanation as to why this bill has been languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire.”

In the meantime, Akbarali added, Canadians’ rights are being violated.

“The unconstitutional law remains on the books and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved,” the justice wrote.

Akbarali said these are not “theoretical or minor constitutional violations” but ones that could lead to “children being stateless.”

“They can lead to women having to make choices between their financial health and independence on one hand, and their physical health on the other. They can separate families,” Akbarali said in her decision.

“They can force children to stay in places that are unsafe for them. They can interfere with some of the deepest and most profound connections that human beings both enjoy and need.”

In a previous ruling, Akbarali said the current law forces women in their reproductive years to choose between travel, study and career opportunities abroad, and passing citizenship on to their children.

Thousands of so-called “Lost Canadians” have lost their citizenship, and in some cases been deported, due to a complicated section of the Citizenship Act. Now, the federal government is trying to pass new legislation to prevent people from falling through the cracks.

In December, Ontario’s Superior Court struck down Canada’s old citizenship law, Bill C-37, which prevented parents born outside Canada from passing on their citizenship to children also born abroad. The court ruled that it violated their rights under the Canadian Charter of Rights and Freedoms. It gave the government six months to enact Charter-compliant legislation.

The Liberal government said in May its legislation to respond to the judgment, Bill C-71, would fix those problems and automatically confer citizenship rights on children born since 2009 once enacted.

In granting the extension, Justice Akbarali said the government would only have until Aug. 1 to present arguments on why she should consider another extension until Dec. 19. The judge ordered the government to file a plan to address the hardship experienced by parents under the existing law during the extended period and “ideally” file a report on the steps required to get the bill passed before mid-December.

Sujit Choudhry, the lawyer who fought the constitutional case for the families, called for these conditions. Choudhry estimates that the current law violates the rights of at least 1.48 million Canadians at home and living abroad.

Source: Court grants government another extension to fix unconstitutional citizenship law

CTV:

An unknown number of young people born abroad to Canadian parents could wait until at least December to be eligible for citizenship.

Last year, the Ontario Superior Court ordered Ottawa to reverse restrictions imposed by the previous Conservative government in 2009, which limited citizenship by descent to children born in Canada if their Canadian parents were born outside the country.

The court declared the 2009 change unconstitutional for creating two classes of citizens and gave Ottawa until June 19 to implement a solution. On Wednesday, the court granted the government’s request to extend that deadline to Aug. 9.

In a statement to CTVNews.ca, an Immigration, Refugees and Citizenship Canada (IRCC) spokesperson explained there were conditions attached to the new Aug. 9 deadline.

“The Judge also ordered a hearing on August 1, 2024 to determine if an extension to December 2024 would be appropriate,” the IRCC spokesperson told CTVNews.ca. “She has asked to be presented prior to the hearing with a report explaining the progress made on Bill C-71 since May 23, 2024 ‘and ideally, intended next steps to pass the bill by December 19, 2024.'”

Bill C-71(opens in a new tab), An Act to Amend the Citizenship Act, was introduced in late May(opens in a new tab). If passed, citizenship would automatically be granted to anyone affected by the 2009 change. Going forward, Canadian citizens who were born abroad will also have to spend at least three years in the country before a foreign birth or adoption to be able to pass on citizenship rights to their children.

“There’s no doubt that Canadian citizenship is highly valued and recognized around the world,” Immigration Minister Marc Miller previously said. “We want citizenship to be fair, accessible, with clear and transparent rules.”

With the House of Commons adjourning for the summer on Wednesday(opens in a new tab), the bill is expected to remain on hold until members of Parliament resume legislative business in mid-September, likely necessitating another court extension.

“Many individuals who considered themselves Canadian were excluded from citizenship simply due to their place of birth,” Toronto-based immigration consultant Al Parsai told CTVNews.ca. “By declaring it unconstitutional, the court recognized the adverse impact on Canadian families and their ties to their heritage.”

The government has no idea how many so-called “Lost Canadians” are impacted. All are aged 15 and younger.

NDP immigration critic Jenny Kwan helped draft the bill alongside the Liberals. She attempted to push it through by asking for unanimous consent from MPs, but Conservatives voted against it twice.

“I’ve talked to family members who’ve been separated from their loved ones because of this unjust law that Conservatives brought in 15 years ago,” the Vancouver East NDP MP said last month(opens in a new tab). “I’ve talked to family members where their children are deemed stateless, lost in the system, because of this unjust, punitive, unconstitutional law.”

If the federal government is not given another court extension before Bill C-71 passes, it may be up to the immigration minister himself to decide individual citizenship cases.

“If it doesn’t come through we’re sort of in no man’s land,” Miller said before Wednesday’s court extension. “Basically, it’s my discretion deciding who’s Canadian or not. Obviously, that shouldn’t be up to the discretion of a minister.”

If the bill does pass, anyone affected by the 2009 change would be able to apply online for a Canadian citizenship certificate(opens in a new tab). The government also has a digital tool that can help you find out if you are Canadian(opens in a new tab).

Parsai expects to see a surge in citizenship applications, which could strain government resources.

“The Ontario Superior Court’s ruling in 2023 was a pivotal moment, acknowledging the unfairness of the 2009 policy,” Parsai said. “This change will be immensely positive for Canadians and their families, restoring their sense of belonging and legal recognition.”

Source: Canada’s new citizenship rules for kids born abroad delayed

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

2024/06/19 Leave a comment

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

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

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

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

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

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

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

Removing outdated values and addressing historic wrongs in citizenship law

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

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

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

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

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

Encouraging Canadians to Return to Home

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

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

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

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

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

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

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

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

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

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

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IRCC introduces interim measure allowing some foreign nationals to gain Canadian citizenship faster

2024/06/19 Leave a comment

Pending legislative approval of C-71, the tabled bill that essentially abolishes the first generation limit, and responding to the timeline of the court.

IRCC’s new measure applies to those who have applied for proof of citizenshipunder urgent processing, and may be impacted by the FGL (First Generation Limit) by descent. Specifically, it will apply in either of the following scenarios:

  • Scenario One: The applicant has submitted a proof of citizenship application that would be subject to the FGL rule change, and has requested urgent processing in accordance with urgent processing criteria; or
  • Scenario Two: The applicant has a proof of application in process and IRCC has identified that the application is impacted by the FGL rule. The application had previously been de-prioritized until new rules come into effect, but the applicant has since requested urgent processing.

In both of these circumstances IRCC will respond to and review the request, in addition to verifying an applicant’s eligibility for urgent processing.

If an applicant is eligible, they will receive a notice from IRCC that the FGL rule is still currently enforced. The department will also give eligible applicants the option to request a “discretionary grant of citizenship”* with relevant information for how to apply for this grant.

If an applicant chooses to apply for this grant, their application will be processed by the Immigration Minister, or delegated decision maker. If the application satisfies necessary criteria, applicants can be granted citizenship.

*The Immigration Minister has the authority under Canadian law to grant citizenship to individuals in special or exceptional cases.

Who is eligible for urgent processing?

IRCC allows three groups of citizenship certificate (a crucial document in proving one’s Canadian citizenship) applicants to apply for urgent processing.

To be eligible for urgent processing of a citizenship certificate, applicants are required to prove they need urgent processing for one of the following three reasons:

  • The applicant needs to access benefits, including but not limited to: a pension, health care, or their Social Insurance Number (SIN)
  • The applicant needs to prove they are a Canadian citizen to get a job
  • The applicant needs to travel to or from Canada due to a death or serious illness in their family

Note: IRCC clarifies that the department cannot guarantee applicants will receive their citizenship certificate on time, even if they qualify for urgent processing.

Source: IRCC introduces interim measure allowing some foreign nationals to gain Canadian citizenship faster

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Canada set to lift restrictive citizenship by descent norms; Indian diaspora to benefit say experts

2024/05/27 Leave a comment

Seems like immigration source countries are looking at the implications of the change more than Canadian media: “open up the chain of citizenship without end…:”
 
…Pavan Dhillon, immigration attorney illustrates the first- generation limit. Mrs. A was born in India and was its former citizen. Subsequently after migrating, she acquired Canadian citizenship. On her return to India, she bore a child – ‘B’. Now, ‘B’ was eligible to be a Canadian citizen through descent. However, subsequently, ‘B’ (a Canadian citizen) could not under the first-generation limit rule pass on citizenship to her child (let’s name him C) if C was also born outside Canada.In other words, the first-generation which was born abroad, did not have the right to pass on citizenship by descent to the second-generation that was born abroad. This set of individuals, who were denied citizenship by descent are referred to as ‘Lost Canadians’.

According to the proposed amendment children born abroad to Canadians since 2009, would automatically be granted citizenship. A new substantial connection test would be created for those born outside Canada, after the new law comes into effect.

Those Indians who post enactment of the proposed legislation are eligible to become Canadian citizens and want to opt for it, will have to give up their Indian citizenship, as dual citizenship is not permitted.

The proposed provisions require that “Parents born abroad who have or adopt children also born outside Canada will need to have spent at least 1,095 cumulative days of physical presence in Canada prior to the birth or adoption of their child to pass on citizenship”.

Ken Nickel-Lane, founder of an immigration services firm , told TOI, “This announcement, at least on initial reading looks like it will open up the chain of citizenship without end as long as the parents have spent at least 1,095 cumulative days (approximately three years) of physical presence in Canada prior to the birth or adoption of their child to pass on citizenship. So, this could be very significant to a large group of individuals worldwide, notably Indian Nationals given that they are our largest source of new Canadians.”

However, it could be another immigration hot issue, as in some quarters it may be perceived that the floodgates to a wider pool of new immigrants have been opened, adds Nickel-Lane.

“The proposed legislation intends to ensure that Canadians who have substantial ties to Canada are not limited in their ability to pass on their citizenship to their children. The new legislation will greatly benefit the diaspora with significant ties to Canada,” states Dhillon .

Minister Miller summed up, “The current rules generally restrict citizenship by descent to the first generation, excluding some people who have a genuine connection to Canada. This has unacceptable consequences for families and impacts life choices, such as where individuals may choose to live, work, study, or even where to have children and raise a family. These changes aim to be inclusive and protect the value of Canadian citizenship, as we are committed to making the citizenship process as fair and transparent as possible.”

Canada’s immigration agency has stated that if the bill passes in Parliament and receives royal assent, it will work as quickly as possible to implement these changes and will provide more information for eligible individuals on its website.

Source: Canada set to lift restrictive citizenship by descent norms; Indian diaspora to benefit say experts

Some coverage as well in the Nigerian press but with limited analysis by Daniel Béland: Canada restores citizenship rights to “lost Canadians”

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Lilley: Trudeau extending Canadian citizenship to grandchildren and illegals

2024/05/27 Leave a comment

Different take from Lilley in the Toronto Sun than Selley in the National Post. Agree with Lilley that there are alternative methods such as greater use of ministerial discretion for hardship and statelessness cases, rather than casting a broader net:

….On the issue of extending birthright citizenship, the Liberals made it sound like they had no choice, blaming a court decision last December. The truth is, it was a lower court ruling they didn’t appeal because as they stated clearly in their news release they liked it.

“The Government of Canada did not appeal the ruling because we agree that the law has unacceptable consequences for Canadians whose children were born outside the country,” the news release stated.

The court ruling was in response to a number of families who challenged a law which stated that you could only pass on citizenship to a Canadian born outside of the country by one generation. With this change, grandchildren of Canadian citizens will be extended full Canadian citizenship.

This isn’t standard practice in the United States, Britain, France, Italy or a number of peer countries, which with rare exception cap passing on citizenship to the first generation born outside of the country.

Yet when a number of families, some with stories similar to mine, challenged Canada’s citizenship laws, Justice Jasmine Akbarali found the law to be unconstitutional. In her ruling she found that the law violated section 6 mobility rights and section 15 equality rights.

In one of the cases, two Canadians who had moved to Switzerland to work and had a child while there, sued in the off chance that in the future their daughter also moves abroad and has a family that they could pass on citizenship. That’s deciding a case and overturning a law based on a hypothetical, something judges love doing but isn’t a serious way to determine court cases.

In another case, a man born in the United States to a Canadian mother got married and started a family while living in Asia. He wanted to pass on the citizenship to his child, but the law didn’t allow it.

When he moved back to Canada with his family, his daughter applied for and was granted Canadian citizenship.

Bottom line is that in all the cases before Justice Akbarali there were solutions, like applying for citizenship, that didn’t involve watering down our rules. She decided the first generation cut off was arbitrary.

But if a one generation rule is arbitrary, what’s to say a future court won’t find the second generation cut off arbitrary. Parliament must choose a cut off at some point, otherwise, why have citizenship, why have borders, why have rights and privileges open to citizens and not others.

This was a bad court ruling and it has now been followed by a bad government policy. It extends automatic citizenship to people who have little to no connection to Canada and cheapens the value of our citizenship.

Knowing now that the Trudeau Liberals want to extend citizenship to people in the country illegally, their moves shouldn’t be surprising.

The only question left is how far will the Liberals go in terms of devaluing what it means to be Canadian?

Source: Trudeau extending Canadian citizenship to grandchildren and illegals

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