Court grants Ottawa extension to fix ‘lost Canadians’ citizenship rules

2024/08/05 Leave a comment

Original deadline was completely unrealistic given legislative process and flawed draft legislation having no time limit to meet residency requirements, unlike for Permanent Residents (1,095 days within 5 years):

Immigration officials will have until Dec. 19 to enact Bill C-71, which would automatically confer Canadian citizenship on people born abroad to a Canadian parent who is also born abroad before the changes take effect. Until then, lost Canadians can only try to reclaim their citizenship on an emergency basis.

At the same time, officials must also roll out a system for anyone born outside Canada subsequently to prove their foreign-born Canadian parent had a “substantial connection” with the country by meeting a residency requirement, which is 1,095 cumulative days of physical presence in Canada before the birth or adoption of their foreign-born child.

Friday’s decision by the Ontario Superior Court of Justice is likely going to end a three-year legal saga that started in 2021 by a group of 23 people from seven families who have been harmed by the loss of citizenship as a result of the so-called second generation cut-off rule introduced by Stephen Harper’s Conservative government in 2009.

They claimed the second generation cut-off rule — denying the first generation born abroad the right to pass on citizenship by descent outside Canada to the second generation born abroad — violated their Charter rights based on country of origin and sex.

In December, Judge Jasmine Akbarali ruled the second-generation citizenship cut-off rule was unconstitutional and ordered the federal government to repeal it and amend the Citizenship Act in six months.

In June, officials asked the court for a six-month extension of the deadline, saying they needed more time to pass a new bill to fix the problems. However, the court was not satisfied that the government recognized the urgency of a new law and asked officials to return Aug. 1 with an effective plan to address the hardship that any further delay might “cause people whose constitutional rights are being violated day after day.”

The court held a hearing this week and was presented submissions by the government of the updated procedure and communications to address “special cases of hardship,” as well as the new instructions created for affected citizenship applicants who have an urgent need for family reunification in Canada.

While the revised website and communication may not be perfect, the judge said they “adequately” allow potential applicants to navigate how they can seek a grant of citizenship in urgent cases that may involve a child’s statelessness or hardship in family reunification during the delay.

“The question for me is not whether the respondent could have designed a better process, or whether it is executing the process it has designed in a way that I would, in my discretion,” Akbarali wrote in a decision released Friday.

“The question is whether the process it has designed is good enough to sufficiently address the concerns about the hardship caused by the ongoing rights violations.”

The court heard that the government has made every effort to ensure the passage of Bill C-71 to amend the Citizenship Act, including technical briefings to MPs and to opposition immigration critics about the proposed changes. Immigration officials are also undertaking work to support the implementation of the new law as soon as it is passed.

But at the hearing, Sujit Choudhry, lawyer for the affected families, raised doubts over the government’s commitment to push through the legislative changes, arguing that Ottawa could have prioritized the passage of the bill, first introduced on May 23, before Parliament recessed for the summer on June 20.

Akbarali said she was satisfied with the plan outlined by the government and trusted that it will continue to take steps to advance the legislation.

“It has a tool box at its disposal that it can use to accelerate the passage of Bill C-71,” she wrote. “There is reason to conclude that the Bill will likely be adopted before Dec. 19, 2024.”

Akbarali also awarded $15,000 in indemnity costs to the litigants and credited them for holding the government to account.

Source: Court grants Ottawa extension to fix ‘lost Canadians’ citizenship rules

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Canada is immigrant friendly, but does it consider the national security angle?

2024/07/31 Leave a comment

My podcast with Phil Gurski discussing C-71 and its possible impact on citizenship policy, security and operations

Source: Canada is immigrant friendly, but does it consider the national security angle?

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Jamie Sarkonak: Liberals water down citizenship for grandkids of convenience Canadians

2024/06/01 Leave a comment

While there is a diversity of perspectives among right leaning media, Sarkonak represents the consensus:

…Applying the court’s logic to any other situation reveals the absurdity of it all. If withholding citizenship from Canadian spawn two generations removed from home is discrimination, why not three? Four? And if any rule somehow can be perceived by a judge to reinforce a negative stereotype, what else violates equality rights?

Any reasonable government would have appealed, but not our feds. This decision granted legalistic cover to hand out more passports Oprah-style, and a higher court may not have been so generous.

The PR campaign to advance C-71 has taken care to focus on the saddest, most sympathetic stories that can be found: the cases of Type-A parents whose children have high “Canadian-ness” — speak our language, participate in our culture, share our values — but can’t, for whatever administrative reasons, obtain citizenship. These individual cases could be resolved through ministerial intervention today by Miller, which he knows and admits, but his government wants a rule so broad to include all.

On the other hand, there are others who barely have a Canadian connection at generation zero. Some are passport babies, whose mothers travelled to Canada for the purpose of obtaining citizenship for their children. According to Canadian Institute for Health Information data, compiled by analyst Andrew Griffiths for Policy Options magazine, there have been more than 40,000 of such births from 2010 to 2022.

Others have obtained Canadian privileges but have returned home. This was especially apparent in 2006, when the Lebanon civil war broke out that July. Some 40,000 people in Lebanon were registered with the Canadian embassy at the time, and $94 million was spent to evacuate about 14,000 of them to Canada; by September, the government estimated that 7,000 of those evacuees had returned to Lebanon, providing the catalyst for the Harper government to tighten citizenship rules in the first place.

New conflicts shake out new numbers. After fighting erupted in Sudan last year, prompting Canada to evacuate 175 Canadian citizens and permanent residents, Post columnist John Ivison spoke with a government source who estimated that up to half of the evacuees were “refugees who were granted status in Canada and then returned to Sudan, with some continuing to claim welfare and child benefits.”

“Most of these people have been living in Sudan for years,” said the source. “Sometimes they never really lived in Canada and don’t speak English or French.”

And who knows what the tally in Gaza is; in November, the foreign affairs department estimated that 600 Canadians, permanent residents and family members were in the strip. Some of these no doubt include aid workers, but by news reports, they also include young families who are clearly being raised intentionally abroad.

Those children can grow up elsewhere, without learning any English or French, without becoming attuned to our ways of life, our common sense of right and wrong; without ever paying Canadian taxes. Without giving anything in return, they can turn to the Canadian state for help — rescue, health care, and so on. The same can be said for their children, who only need to spend a few years in Canada to be eligible to pass on the same to their children.

The Liberal bill would ensure that the rest of Canada — those of us who have received the Canadian tradition and intend to preserve it for our children, who have a direct interest in our state’s success, who pay income taxes throughout our lives — could be obligated to support three whole generations of convenience-citizens as if they were our countrymen the whole time. It would do so under the guise of helping a narrow group of expats who can, at best, receive help from the minister, and, at worst, have their children apply for citizenship the normal way.

Source: Jamie Sarkonak: Liberals water down citizenship for grandkids of convenience Canadians

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Ottawa veut étendre la citoyenneté aux enfants nés à l’étranger de Canadiens, Chris Selley: Finally, an easy fix to the Citizenship Act, 18 years in the making

2024/05/25 Leave a comment

Limited commentary to date:

…Professeur en droit de l’immigration, des réfugiés et de la citoyenneté à l’Université d’Ottawa, Yves Le Bouthillier accueille favorablement le nouveau projet de loi, affirmant que les nouveaux changements pourront encourager la mobilité internationale des Canadiens.

« Pour les femmes, si elles voulaient vraiment préserver le droit de leurs enfants de transmettre leur citoyenneté, il fallait rester au Canada pour accoucher », donne-t-il comme exemple.

Les parents nés à l’extérieur du pays devront avoir passé au moins 1095 jours cumulatifs (trois ans) au Canada avant la naissance ou l’adoption de leur enfant pour lui transmettre leur citoyenneté canadienne.

« Je pense que c’est une limite raisonnable à ce qui constitue un lien substantiel avec le Canada », a expliqué le ministre.

Le professeur Le Bouthillier indique que le seuil de 1095 jours est assez souple comparativement aux critères d’autres pays. Aux États-Unis, par exemple, un parent doit être un citoyen américain et avoir passé au moins cinq ans physiquement aux États-Unis avant la naissance de l’enfant pour lui transmettre la citoyenneté. Au moins deux ans de cette présence physique doivent être après le 14e anniversaire du parent.

Le projet de loi canadien favorise ainsi la rétention et l’acquisition de la citoyenneté à travers le parent, analyse le professeur.

Un nouveau test pour les enfants nés après l’entrée en vigueur de la réforme sera aussi mis en oeuvre pour « évaluer les liens manifestes » avec le Canada….

Source: Ottawa veut étendre la citoyenneté aux enfants nés à l’étranger de Canadiens

Chris Selley in the NP has a valid point regarding exercising ministerial discretion, rather than arguably broader measures than needed to address particular cases:

….If citizenship ministers had been willing to exercise their broad discretion and grant citizenship to people like the infant Burgess son, it might not have been a problem. There aren’t thousands of these cases, though there are more than a few. I know two Canadian children who (as it stands) won’t be able to pass on Canadian citizenship to their children, should their children be born abroad. One of them has a brother who will be able to pass on Canadian citizenship to his children, should they be born abroad, because he happened to be born after his parents moved back to Canada.

This is not coherent. Bill C-71 offers the promise of coherency.

Source: Chris Selley: Finally, an easy fix to the Citizenship Act, 18 years in the making

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Canada to extend citizenship to children born abroad, restoring rights of ‘lost Canadians’

2024/05/24 Leave a comment

As largely expected following the Court decision and the government’s decision not to appeal, the residency requirement has emerged as the least objectionable and easiest connection test to manage among the available options. However, it is strange that Bill C-71 isn’t fully consistent with the standard physical residency requirement for new Canadians: “must have been physically in Canada for at least 1,095 days (3 years) during the 5 years before the date you sign your application.” This means a weaker connection test than warranted IMO and curious to see how the government justifies this difference and assesses the impact on the number of people affected.

At least the government is following the normal legislative process in making the change rather than the backdoor shortcut of S-245, to allow for proper committee consideration and debate. It remains to be seen how the Conservatives react on the substance given their legitimate opposition to the S-245 approach.

The number of persons potentially affected is large. Out of the estimated 4 million Canadian expatriates, about half are by descent (i.e., born abroad). Two-thirds of expatriates are living in the USA, with another 15 percent in UK, Australia France and Italy (2017). The number living in other countries has increased from 14 percent in 1990 to 20 percent in 2017.

As we have seen in previous efforts to respond to “Lost Canadians,” the actual number of those who request citizenship proofs is relatively small: an average of 1,500 per year, 2009-22. So while the impact is potentially large, the actual numbers are likely smaller given that for second and subsequent generation expatriates in the USA and EU, largely integrated into their country of residence, Canadian citizenship may not be a priority. On the other hand, it is likely a higher priority for those in other countries with less secure conditions, with Hong Kong being a prime example, and where we see growth in expatriates.

Of course, all of these expatriates will have voting rights, another reversal by this government of the previous government’s five year cut-off. However, despite the talk about the right to vote, actual interest in voting in Canadian elections is minimal among expatriates.

It will be interesting to see what analysis, if any, IRCC provides on the potential impact on its citizenship operations.

Having become a grandparent to a child born abroad, I look at how our the change affects our grandson. Under the current first-generation cut-off, he would not be able to transmit his Canadian citizenship to any future child. Under C-71, he would have to 1,095 cumulative days of physical presence in Canada. So the obvious and easiest strategy for him would be to attend university in Canada and thus start the clock again. Personally, the first generation cut-off did not concern us as we accept that family trajectories and trees evolve and change.

It would be helpful for the government and CIMM to look at my and other scenarios to understand the potential impact of the lack of a timeframe for the physical residency requirement, particularly for temporary workers (TFWP and IMP) which are less straightforward that the situation of my grandson.

Following a court order, the federal government has introduced new legislation to restore the citizenship rights of “lost Canadians” born outside Canada and ensure it doesn’t happen to others in the future.

This legislation would automatically confer Canadian citizenship to persons born abroad to a Canadian parent who is also born abroad beyond the first generation if the parents can pass a “substantial connection test.”

“It will be the first time that the Citizenship Act is actually charter compliant,” said Don Chapman, a staunched advocate for lost Canadians, after Bill C-71 was tabled in Parliament on Thursday. ”It’s monumental. And it has huge ramifications.”

As a result of the first-generation limit, Canadian citizens who were born outside Canada cannot pass on citizenship to their child born outside Canada; neither can they apply for a direct grant of citizenship for a child born outside Canada and adopted, creating generations of so-called “lost Canadians.”

“We want our citizenship to be fair, accessible, with clear and transparent rules. Not everyone is entitled to it, but for those who are, it needs to be fair,” Immigration Minister Marc Miller told reporters.

“We wanted to take this opportunity to continue to minimize differential outcomes as much as possible for children born abroad…compared to children born to Canadians (in Canada).”

According to the proposed amendment to the citizenship law, 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.

Lost Canadians and their families launched a constitutional challenge in court last year of the two-generation citizenship cutoff rules. Click here to post your thoughts

In December, the Ontario Superior Court of Justice ruled that it’s unconstitutional for Canada to deny automatic citizenship to children born abroad because their parents also happened to be born abroad. It gave the federal government six months, until June 19, to repeal what’s known as the “second-generation cut-off” rule and amend the Citizenship Act.

With the looming court-stipulated June 19 deadline to roll out the new scheme, Miller said the government is unlikely to receive royal assent to the bill in time and will have to go before the judge to ask for an extension, which will cause further delays for affected children and grandchildren of Canadians to acquire citizenship and join families in Canada.

“We are still looking at a number of options. We don’t want an extension ad nauseum because there are people that are being prejudiced by this,” Miller explained.

“I have a very uncomfortable role in the interim at applying a test that really should be legislative. But it’s something that will have to speak to the court about. Again, we hope that this can be passed at all stages.”

In 2009, the then-Conservative government changed the citizenship law and imposed the second-generation cut-off on Canadians born abroad, after Ottawa had faced a massive effort to evacuate 15,000 Lebanese Canadians stranded in Beirut during Israel’s month-long war in Lebanon in 2006.

The $85-million price tag of the evacuation effort sparked a debate over “Canadians of convenience” — referring to individuals with Canadian citizenship who live permanently outside of Canada without “substantive ties” to Canada, but who were nonetheless part of the government’s liability.

As a result, the government abolished the then existing “substantial connection” regime and adopted a blanket rule that denies the first generation born abroad the right to pass on citizenship by descent outside Canada to the second generation born abroad.

In January, Ottawa decided not to challenge the court decision, but instead would repeal the existing law and put forward a new bill that’s compliant with the Canadian constitution.

Source: Canada to extend citizenship to children born abroad, restoring rights of ‘lost Canadians’

The press backgrounder:

Bill C-71: An Act to amend the Citizenship Act (2024)

From: Immigration, Refugees and Citizenship Canada

The Citizenship Act contains a first-generation limit to citizenship by descent, which means that a Canadian citizen parent can pass on citizenship to a child born outside Canada if the parent was either born in Canada or naturalized before the birth of the child. Canadians born or naturalized in Canada before adopting a child born abroad can apply for a direct grant of citizenship for the adopted child.

As a result of the first-generation limit, Canadian citizens who were born outside Canada cannot pass on citizenship to their child born outside Canada, and cannot apply for a direct grant of citizenship for a child born outside Canada and adopted.

On December 19, 2023, the Ontario Superior Court of Justice declared that the first-generation limit for those born abroad is unconstitutional. 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 government is introducing legislation to make the citizenship process as fair and transparent as possible. Bill C-71 would

  • automatically remedy the status of any person already born who would have been a citizen were it not for the first-generation limit
  • establish a new framework for citizenship by descent going forward that would allow for access to citizenship beyond the first generation based on a substantial connection to Canada

Substantial connection test

Bill C-71 would allow a Canadian parent born abroad who has a substantial connection to Canada to pass on citizenship to their child born abroad beyond the first generation. It would also provide them with access to the direct grant of citizenship for their child born abroad and adopted beyond the first generation.

To demonstrate a substantial connection to Canada, a Canadian parent who was born abroad would need to have a cumulative 1,095 days of physical presence in Canada before the birth or adoption of the child.

Lost Canadians

The term “Lost Canadians” has generally been used to describe those who lost or never acquired citizenship due to certain outdated provisions of former citizenship legislation.

Most cases were remedied by changes to the law in 2009 and 2015. These changes allowed people to gain Canadian citizenship or get back the citizenship they lost. Despite this, additional amendments are needed to include other categories of Lost Canadians and their  descendants who did not benefit from the 2009 and 2015 changes.

Bill C-71 will restore citizenship to any remaining “Lost Canadians,” their descendants and anyone who was born abroad to a Canadian parent in the second or subsequent generations before the legislation comes into force. This includes people who lost their citizenship as a result of requirements under the former section 8 of the Citizenship Act.

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