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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Teenage surfing star granted Canadian citizenship, now sets her sights on Olympics – The Globe and Mail

2024/01/15 Leave a comment

Unclear whether this is a one-off decision or signals repeal of first generation cut-off. From the reporting, weak connection to Canada, one that appears to be more elite athlete driven and that she was reportedly searching for different citizenship options to allow her to compete in the olympics. Unclear why she didn’t compete with the American team:

…Canada’s citizenship laws are complex, with amendments changing the rules in 2009 and 2015. But essentially Bill C-37 in 2009 ended the extension of citizenship to second-generations born abroad.

In an October letter explaining its decision not to grant a “discretionary grant of citizenship,” Immigration, Refugees and Citizenship Canada says Brooks did not meet the requirements.

“The application is refused on the basis that the applicant is not stateless, has not experienced special or unusual hardship or provided services of an exceptional value to Canada which warrants a discretionary grant of Canadian citizenship,” the letter stated.

Source: Teenage surfing star granted Canadian citizenship, now sets her sights on Olympics – The Globe and Mail

Source: Chris Selley: An elite surfer finally gets rightful Canadian citizenship. Other ‘lost Canadians’ keep waiting

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Conservative filibuster threatens potential citizenship for children born abroad

2023/06/07 Leave a comment

Given the backdoor way this broader amendment was introduced to the focused bill, support the Conservatives in their filibuster, particularly that there are much more significant issues in immigration and citizenship policy.

While comment sections are not representative, it is striking how many have little sympathy for the cases cited:

Andrea Fessler found out her third daughter didn’t qualify for Canadian citizenship – even though her two older daughters did – when she arrived at the Canadian consulate in Hong Kong to register.

She’s one of many Canadians who were born abroad and whose children do not qualify for citizenship unless they are born in Canada because of a 2009 change to the law.

There is hope for a reversal of that change as members of Parliament debate amendments to the Citizenship Act. But an ongoing Conservative filibuster is threatening that hope.

Fessler was born in Israel while her father was completing a two-year post-doctoral degree in the country. Her family returned to Canada when she was two, where she grew up in Vancouver before moving to Ottawa to work as a page in the House of Commons.

All three of her girls were born abroad, but because of the legal change in 2009, Fessler’s youngest daughter, Daria, is the only one without legal ties to Canada.

“Had I known about the change of the law in 2009, it’s very possible that I would have gone to Canada to give birth, but I had absolutely no idea,” she said in an interview from her home in Hong Kong.

The NDP proposed a change that would make people like Daria eligible for citizenship if their Canadian parent can prove they spent at least three years in Canada.

The new rule, which is supported by the Liberals, was tacked onto a private member’s bill at the House of Commons immigration committee.

The committee has until June 14 to finish reviewing the amended bill, or else it will be sent back to the House of Commons without the new changes.

“I have been informing the girls of the legislative process, and how there is a hope and how hopeful I am that at some point Daria will be able to have a Canadian passport,” Fessler said.

Daria, who is now 12, dreams of going to university in Vancouver, where her family takes an annual vacation. But as it stands now, she would need to apply for an international student visa to return.

“She’s very hopeful” that that could change, Fessler said.

The private member’s bill was initially put forward by Conservative Sen. Yonah Martin to address a particular quirk in citizenship law.

The NDP and Liberals seized on the opportunity to pass amendments to the bill that would have much more wide-ranging implications for the citizenship of children born outside of the country.

That irked Conservative members of the committee, who feel the Citizenship Act is being rewritten without the appropriate study or due diligence.

“These are substantive amendments, which materially affect the Citizenship Act. So they deserve scrutiny, and we are scrutinizing them,” said Conservative MP Michelle Rempel Garner, who serves on the committee.

Ottawa grandmother Carol Sutherland-Brown said the NDP’s amendment gave her hope that her grandchildren will one day qualify for Canadian citizenship.

But that hope has dwindled with every meeting of the committee she’s watched since.

“I felt elated when the amendment went through for the connection test, and then it’s just dashed,” Sutherland-Brown said.

Sutherland-Brown met her husband in Canada before she moved to Saudi Arabia to work at a hospital with him when she was 26 years old. She was still living there when she had her daughter Marisa.

The family moved back to Canada when Marisa was two years old, and she lived there until she moved to Paris after her post-secondary graduation. There, she met her husband, and the two moved to the United Kingdom after that to start a family.

The family realized Marisa’s son Findlay wouldn’t qualify for Canadian citizenship after she started filling out the paperwork.

“He would have been sixth-generation Canadian, and that’s all robbed now,” Sutherland-Brown said.

During the filibuster, Conservative members have also put forward other potential amendments far outside the scope of the original bill, including mandating in-person citizenship ceremonies, which have taken up hours of debate before being shot down by Liberal and NDP members.

The committee has extended meetings and scheduled extra time to debate the bill, but NDP immigration critic Jenny Kwan said it may not be enough to beat the filibuster.

“If this continues to carry on the way in which it has, (then) there is that real possibility that the bill would be reported back to the House without us completing the work,” Kwan said.

“I’m still somewhat hopeful – I don’t know why – that this will still manage to make it to the House with the necessary amendments. I’m holding on to that shred of hope.”

If the amendments make it through committee, the expanded bill would still need to clear the House of Commons and the Senate before families like Fessler’s and Sutherland-Brown’s would be able to make their case to pass on their citizenship.

Source: Conservative filibuster threatens potential citizenship for children …

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

2023/04/22 1 Comment

Useful account of the court proceedings and Justice Akbarali comments and questions. The definition of “lost Canadians” keeps on getting stretched. Agree, of course, on the need for better data, not just relying on personal stories and individual cases:

Government lawyers were challenged in court to justify the options for “lost Canadians” to be granted citizenship and the undue hardship endured by families affected by a rule that limits the passage of citizenship rights by descent for those born abroad.

At a hearing in Toronto on Thursday, federal government counsel argued there’s no charter right to citizenship and alternative pathways are available for children born overseas to foreign-born Canadians who can’t inherit citizenship under the second-generation cut-off rule.

“There’s simply one rule for passing on citizenship for the first generation born abroad, and that’s having a child born in Canada to continue the connection to Canada,” Hillary Adams, one of three lawyers for the government, told the Ontario Superior Court of Justice.

“Or they can have their children born outside of Canada and confirm the connection to Canada by establishing permanent residence here and apply for citizenship, like most immigrants to Canada … The end result is the same. Your child gets Canadian citizenship.”

The lawsuit was brought by 23 individuals from seven families that have been negatively affected by the cut-off rule, arguing the law discriminates against them based on their place of birth, violates their mobility and liberty rights, and disproportionately puts women at a disadvantage when they have to give birth outside of Canada due to circumstances beyond their control.

Government co-counsel David Tyndale said people make personal choices as to where to look for jobs, where to start a family or whether to pursue a career abroad, and the choices have “intersecting effects” on one another.

“They may be difficult. They may involve serious consequences in some area or others of the person’s life. But the fact that life imposes choices on people as to where they live and where they have children isn’t necessarily a breach of the charter,” Tyndale argued.

The government contended that there’s no “blanket prohibition” for the second-generation born abroad to restore their Canadian citizenship through a discretionary grant by the immigration minister or indirectly first as a permanent resident through a family sponsorship before they turn 22 years old. Refused applicants can appeal to the Federal Court.

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

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

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

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

But at what cost, the judge wondered.

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

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

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

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

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

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

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

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

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

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

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

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

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Standing committee votes to reconnect ‘lost Canadians’ with their #citizenship

2023/04/21 Leave a comment

In parallel with the court case.

The previous retention provisions (age 28) were complicated and difficult to administer consistently and many did not avail themselves of these provisions, whether due to not being aware or not important to them at the time.

Degree of connection tests, while possible, would likely prompt debate over the particular conditions.

And when I last did an analysis of Canadian expatriates using a variety of connection tests – paying non-resident taxes, maintaining a Canadian passport, etc – the number was significantly less than estimates of their overall numbers.

As always, practically impossible to reach all Canadians living abroad with messages regarding citizenship and other policies that may affect them.

When Emma Kenyon tried to file for her child’s Canadian citizenship after moving abroad for work, she was told to travel back to Canada to give birth in a hospital here.

Speaking at a press conference on Monday, Kenyon said this advice was offered at the height of Canada’s pandemic travel lockdown in 2020, and would have resulted in a significant salary loss and posed a health risk to her pregnancy.

Both Kenyon and her husband grew up in Canada, and wanted to pass down their Canadian citizenship to their expected child and the rest of their growing family. Their efforts have been met with lingering bureaucracy.

On Monday, April 17, the Standing Committee on Citizenship and Immigration voted to widen the scope of a new policy change to the Citizenship Act that aims to reconnect Canadians who were born abroad with their lost citizenship.

As it stands, Bill S-245 — which was introduced by Conservative Senator Yonah Martin in May 2022 — only gives some people their citizenship back, but not others.

The NDP’s amendments tabled on Monday will also include people like Kenyon, who fall outside of the bill’s scope — as it stood, the bill only allowed people born abroad between Feb. 15, 1977 and April 16, 1981 to reclaim citizenship.

The amendments were passed with 64 per cent of the committee in favour, while all votes against it came from CPC members.

CPC members opposed to Kwan’s amendment said they would use it as a bargaining chip for the party to push for their own agenda items like the reinstatement of in-person citizenship ceremonies.

“The NDP wants to seize this opportunity to fix ‘lost Canadian’ issues once and for all,” Kwan said in an announcement before the committee meeting.

She spoke alongside subject expert and author Don Chapman, Canadian Citizens Rights Councilexecutive director Randall Emery, immigration lawyer Sujit Choudhry, and people who would be affected by the policy change.

A history of the lost Canadians

In 2009, the then-Conservative government repealed parts of a 32-year-old section of the Citizenship Act that automatically revoked the citizenship of some Canadians when they turned 28, unless they re-applied for it.

But the arcane age 28 rule had not been clearly communicated to Canadians when it took effect in 1977. As a result second-generation kids awoke on their 28th birthday years later without their citizenship and the threat of deportation.

Last year, Opposition Deputy Leader, Conservative Senator Yonah Martin, expedited Bill S-245 through the Senate, to address “a small group of Canadians who have lost their Canadian citizenship or became stateless because of [these] changes to policy.”

It encompasses a specific cohort of lost Canadians that had already turned 28 before the rule was revoked, including only those born within a 50-month window.

On Monday, Kwan and those who spoke with her said the scope of the bill is still too narrow. The NDP’s amendments would include people, like Kenyon, who are currently told not to give birth abroad if they want to pass their Canadian citizenship on to their children.

At Monday’s announcement, Chapman noted the previous changes in citizenship policy reflected a UK-based model of identity laws that used to be popular in British colonies.

“Canada is the last country defending these laws,” he said.

Source: Standing committee votes to reconnect ‘lost Canadians’ with their …

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

2023/04/21 Leave a comment

Will see what the court decides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The hearing resumes Thursday with arguments from the government.

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

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Chris Selley: A dumb citizenship law, easily fixed, is finally headed to court [not so easily, not so simple]

2022/01/08 Leave a comment

Whenever someone says “simple problem” or “easily fixed,” they don’t fully understand the policy and operational issues involved. Surprising from someone as seasoned as Selley, who normally does his homework before condemning an “idiot law.”

Over reliance on anecdotes, bereft of any understanding of the issues and practicalities involved. No discussion of the problems encountered in the previous retention provisions, which were difficult to administer fairly and transparently. And no discussion of the parliamentary discussions and report that discussed the provision.

Not in the Minister’s mandate letter but issue has been percolating for some time.

Will be interesting to see how courts respond to the lawyer’s argumentation (hopefully stronger than his overblown rhetoric as quoted in the article:

Gregory Burgess certainly presents as a full-blooded 46-year-old Canadian. He has long, deep roots in this country, and none anywhere else: His great-grandparents emigrated from Ukraine in 1894 and settled the Edna-Star colony in Alberta. He was born a Canadian citizen. He attended elementary, secondary and post-secondary institutions in Edmonton. He holds only a Canadian passport, he says, and has never had permanent legal status anywhere else.

But he was born abroad — in Connecticut, where his American father was working at the time. And much to his horror, he recently discovered what that means: His son, Philip, who was born three months ago in Hong Kong — where Burgess works in building information management — has no claim to Canadian citizenship. Indeed, because foreigners’ children have no official status in Hong Kong, Philip is currently stateless.

That’s been the law in Canada for 13 years: No matter how purely and unequivocally Canadian you might be, if you happen to have been born abroad to a Canadian parent, then you cannot pass your citizenship on automatically to your children unless they are born on Canadian soil.

Burgess can apply to sponsor Philip as a dependant-child immigrant to Canada, but there are no guarantees. (There are medical tests to be passed, for example.) And Burgess says the government has mooted timelines of up to two years to arrive at a solution. His Hong Kong work visa expires in six months.

“If my son doesn’t have citizenship, and I have to leave in six months, and my son technically does too — because he will be connected to me; that’s the only reason he would be allowed to stay here — (then) I don’t know exactly what the (Canadian) government expects,” says Burgess, exasperated. “Like, where he’s supposed to go and where I’m supposed to go.”

Philip may have a claim to Russian citizenship through his mother: Burgess met Viktoriya Kharzhanovich in 2017 in Shanghai, where she was a student, later becoming a translator and a quality-assurance manager in the textiles industry; they married in September. But Gregory isn’t sure about his own claim. He and Viktoriya are only just now wrapping their minds around this dilemma, on top of caring for an infant.

In any event, they don’t want to move to Russia — and there is no earthly reason they ought to have to. But Ottawa has already denied their application for a temporary passport for Philip. And in the meantime, even if some country is willing to provide Philip with travel documents, it’s entirely possible they will have to be separated.

In theory, Citizenship Minister Sean Fraser could intervene in a case like this on humanitarian grounds. In practice, citizenship ministers rarely do that.

Now-retired airline pilot Don Chapman has been advocating on behalf of “Lost Canadians” in this situation — and many other equally bizarre situations — for many years. Seemingly no one in Ottawa is willing to go on record in support of the status quo. But despite various tweaks to Canada’s utterly byzantine citizenship laws over the years, this simple problem never gets solved. And now it has finally landed in the courts.

The Burgess family will soon be joining seven others as applicants to a constitutional challenge filed in December in the Ontario Superior Court of Justice. Lawyer Sujit Choudhry, who represents the families, argues the law discriminates unjustifiably not just on grounds of national origin, but of gender as well. “It’s quite frankly insulting to my women clients to be told to basically stop working, to arrive in Canada without health insurance, to not have an obstetrician or gynecologist (and have a baby)” just to avoid this ridiculously overbroad and arbitrary law, Choudhry convincingly argues.

The “second generation born abroad” problem dates back to the 2006 war between Israel and Hezbollah. After the then-Conservative government helped evacuate Canadian citizens from Lebanon, a few of the evacuees turned up in the news kvetching about the quality of the service. Some had tenuous connections to Canada. People got angry about “citizens of convenience,” and the government hatched this very blunt solution: Henceforth, no Canadian citizen who wasn’t born in Canada could pass on citizenship to any foreign-born children of their own.

The absurd results are particularly visible within families. Burgess has a younger sister who was born in Edmonton; if Philip was her Hong Kong-born baby, he would automatically be eligible for a passport. And it doesn’t even solve the issue that the Lebanon situation flagged. If Gregory and Viktoriya had made a three-week trip to Canada to give birth and returned immediately to Hong Kong, precisely nothing useful would have been accomplished vis-à-vis Canadian citizenship.

Luckily, there is an obvious solution other than simply letting Canadians pass down citizenship in perpetuity, no questions asked: Part of the process of naturalizing as a Canadian citizen is proving your substantial ongoing connection to the country. Why not simply ask the same of Gregory Burgess and other Canadians who have done nothing wrong except take a job overseas, fall in love and make what they assumed would be a brand-new Canadian?

The lawsuit is one last opportunity for the government finally to pull its thumb out and fix the problem. Arguing for the status quo in court would be especially humiliating for a Liberal government, wedded as it is to the internationalist vision of Canada in the world. But having followed this file for some years now, I’m sorry to say that’s the most likely outcome. If so, I intend to write more about this idiot law and its victims in the new year.

Source: https://nationalpost.com/opinion/chris-selley-a-dumb-citizenship-law-easily-fixed-is-finally-headed-to-court

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‘If we are not Canadian, what are we?’ How a 2009 law is leaving some children stateless

2021/12/14 Leave a comment

Not unexpected but the Act does have a provision to address statelessness. Would be interesting to have the data on the extent of its its application rather than just highlighting individual cases (which highlight issues).

The previous retention provisions were hard to administer consistently and fairly (“substantial connection” not as simple as it sounds), and there are advantages to clarity provided by the first generation limit.

From a policy perspective, the focus was on providing equal treatment for those born in Canada and immigrants who became naturalized Canadians.

And ironic that some expatriate Canadians complain about having to pay for healthcare should they return to Canada to give birth to “restart the clock” when more than a few thousand foreign women do so as “birth tourists.”

But a useful reminder that expatriates need to consider citizenship implications more closely when planning to have children.

After numerous failed attempts to conceive a child, including a lost pregnancy through in vitro fertilization, Emma Kenyon and her husband were grateful and thrilled for the arrival of their first baby.

On Dec. 5, healthy six-pound, two-ounce Darcy was born at a public hospital in Hong Kong. However, a bureaucratic nightmare for his Canadian expatriate parents has just begun.

As new parents, the nursing mother and her husband, Daniel Warelis — both foreign-born Canadian citizens who grew up in Greater Toronto — must fight to find a way to bring their stateless child home.

“I don’t think any country, especially a country like Canada, should allow little babies to be born stateless to Canadian citizens. It’s a travesty,” said Kenyon, 35, who was born in Tokyo while her father was working there for the Bank of Nova Scotia.

“The most important thing for us is that Darcy is not stateless as soon as possible.”

This week, the couple joined five other Canadian families to launch a Charter challenge against a rule in Canada’s citizenship act that denies the transmission of citizenship by descent to these foreign-born kids if both their Canadian parents also happened to be born overseas.

The previous Conservative government changed the law in 2009 and imposed the so-called “second generation” cut-off against Canadians born abroad after Ottawa’s massive effort to evacuate 15,000 Lebanese Canadians stranded in Beirut during a month-long war between Israel and Lebanon in 2006.

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

“Citizenship is about more, far more than a right to carry a passport or to vote. It defines who we are as Canadians, including our mutual responsibilities to one another and a shared commitment to the values that are rooted in our history like freedom, unity and loyalty,” former federal immigration minister Jason Kenney said then.

“That’s why we must protect the values of Canadian citizenship and must take steps against those who would cheapen it.”

Although the law included limited exemptions for children born overseas if their parents are abroad serving in the Canadian military and for the government, critics had warned it would create two tiers of citizenships — those born by birth in Canada and those by descent — and that children of some Canadians might end up stateless.

Now, a generation later, according to the lawsuit filed on Thursday, the impacts of the law passed 12 years ago are felt by Canadians such as Kenyon and Warelis.

“We never imagined, even if there were different rules for second generation Canadians, that two people who are Canadians and grew up in Canada, and there’s no direct pathway for their children to become citizens,” said Warelis, who was born in New York while his father was working there for a global public relations company.

“As time goes on, there will be more and more Canadians who potentially can’t pass on their citizenship,” added the 36-year-old, who worked for the federal government before travelling to Hong Kong for an international career in 2016 with his wife.

“Citizenship is about more, far more than a right to carry a passport or to vote. It defines who we are as Canadians, including our mutual responsibilities to one another and a shared commitment to the values that are rooted in our history like freedom, unity and loyalty,” former federal immigration minister Jason Kenney said then.

“That’s why we must protect the values of Canadian citizenship and must take steps against those who would cheapen it.”

Although the law included limited exemptions for children born overseas if their parents are abroad serving in the Canadian military and for the government, critics had warned it would create two tiers of citizenships — those born by birth in Canada and those by descent — and that children of some Canadians might end up stateless.

Now, a generation later, according to the lawsuit filed on Thursday, the impacts of the law passed 12 years ago are felt by Canadians such as Kenyon and Warelis.

“We never imagined, even if there were different rules for second generation Canadians, that two people who are Canadians and grew up in Canada, and there’s no direct pathway for their children to become citizens,” said Warelis, who was born in New York while his father was working there for a global public relations company.

“As time goes on, there will be more and more Canadians who potentially can’t pass on their citizenship,” added the 36-year-old, who worked for the federal government before travelling to Hong Kong for an international career in 2016 with his wife.

Under the citizenship law in Hong Kong, now part of China, Warelis said his son is ineligible for citizenship by birth on the island because neither he nor his wife are citizens there.

Prior to 2009, the second generation born abroad automatically obtained Canadian citizenship by descent, but ceased to be Canadian citizens at age 28, unless they applied to retain their citizenship and register as a citizen, and either had lived in Canada for at least a year before or established “a substantial connection with Canada.”

However, Ottawa abolished the “substantial connection” regime and replaced it with the second generation cut-off as 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.

“This case is about modern Canadian families, who are deeply Canadian and have travelled to pursue opportunities to work and study or have fallen in love and had children. And they just want to come home and bring their children with them,” said Sujit Choudhry, lawyer for the litigants.

“And this very blunt law, which is completely unnecessary, is standing in their way.”

The lawsuit — including applicants who currently live in Canada, Dubai, Hong Kong, Japan, and the U.S. — claims the law created two classes of Canadian citizenship: one for Canadians born here and one for Canadians born abroad.

While Canadians born in Canada could pass their citizenship to their children born abroad, Canadians born abroad could not similarly do so.

As a consequence, it argues, the first generation born abroad have a second-class citizenship because of the circumstances of their birth, which “were entirely beyond their control” and which they are powerless to change.

The litigants are asking the Ontario Superior Court of Justice for an order to rule the second generation citizenship cut-off unconstitutional and that the same citizenship rights be afforded to them and their foreign born kids.

According to the 2016 census, 32 million of Canada’s 34.5 million population were Canadian citizens, including 8.2 million who weren’t born in Canada. Of those, said Choudhry, 183,000 were born abroad and obtained citizenship by descent.

Unlike Canada, he said, in the U.S., the U.K. and Australia, the first generation born abroad can themselves pass on citizenship to their kids born abroad if they meet a “substantial connection” requirement, usually satisfied by some period of residence in their home country. The idea is to restrict the indefinite transmission of citizenship abroad by non-resident citizens.

“None of them would have had this blanket ban,” said Choudhry.

Litigant Roy Brooke, who was working for the United Nations in Geneva when he and his wife had their first child in 2010, was unaware of the second generation citizenship cut-off until a year later when he got a letter from immigration officials that his child would have no right to pass on citizenship to offspring born outside Canada.

He said there wasn’t a choice for the family to return to Canada at the time and for the baby to be delivered in the country because, as non-resident Canadians, they had no provincial health insurance here and didn’t have an obstetrician or gynecologist.

Fortunately, Brooke, 51, and his wife, 48, were both born in Ontario — him in Toronto and her in Goderich — and their child was granted Canadian citizenship by descent. The family returned and settled in Victoria, B.C., in 2011 to raise the child in Canada, as the couple had always planned.

Brooke said the second generation cut-off will make it more difficult for his child to follow his and his wife’s footsteps and “must trade off career against family.”

The concern over second class citizenship status for his family and others prompted Brooke to lobby the federal government, reaching out to the offices of Prime Minister Justin Trudeau and the immigration minister for legislative changes to amend the citizenship cut-off rules.

Both former cabinet ministers Lloyd Axworthy and Allan Rock were on board for the amendment, said Brooke in his affidavit filed in the Charter challenge.

“Everybody that I have spoken to knows that this is a flawed piece of legislation. Everybody knows that this is a legislative overreach. Everyone knows that this is a series of perverse and unintended consequences. Yet here we are,” said Brooke, an executive director of a not-for-profit organization that works on environmental issues.

“It’s going to affect millions of people. And once people start finding out, it’s also going to put a chill on people’s ability and interest in living, travelling and working overseas and all to no purpose.”

While Kenyon and Warelis are still unsure of what future may hold for their newborn, Victoria Maruyama, another litigant, has already had an uphill battle trying to acquire Canadian citizenship for her two children, both born in Japan, where she met her Japanese husband, an Air Force pilot, while she was teaching English there in 2002. The couple married in 2007 and have two kids, both Japanese citizens.

Born in Hong Kong to Vietnamese and Hong Kong parents, Maruyama moved to Canada with her family in 1980 when she was a year old. She got her Canadian citizenship by descent through her father and grew up in Edmonton.

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

When the kids’ visas expired in 2018, they left. A few months later, they returned from Japan just to show the family’s commitment to settle in Canada. After the immigration minister refused her citizenship plea, she applied to sponsor her children to Canada as permanent residents at the advice of immigration officials. They went back to Japan to wait for the decision.

A refusal letter came in early 2020 from an immigration officer, who wrote: I am not satisfied that your sponsor will reside in Canada if a permanent resident visa were to be issued and as a result, it would be contrary to the regulations to issue you a permanent resident visa or allow you to become a permanent resident.

“There is no doubt that I have a substantial connection to Canada. I lived in Canada for 21 years, including my formative years,” sighed Maruyama, who is still teaching English in Tokyo.

“My two younger sisters do not face the same legal restrictions that I do in passing on citizenship abroad because they were born in Canada … Our substantial connection to Canada is the same. I am as Canadian as they are. Yet, they have more rights than I do, simply because of their place of birth.”

Warelis agrees, “If we are not Canadian, what are we? We don’t have another home.”

Source: ‘If we are not Canadian, what are we?’ How a 2009 law is leaving some children stateless

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