Palestinians living in Gaza lose lawsuits that would force Canada to process crisis travel visas

2025/11/15 2 Comments

Of note (inability to leave Gaza for biometrics):

Palestinians in Gaza who applied to join relatives in Canada two years ago under Ottawa’s crisis immigration policy but haven’t received travel visas lost their lawsuits trying to force officials to act despite security problems in the war-torn region.

Four similar court actions asked the Federal Court to order officials with Immigration, Refugees, and Citizenship Canada (IRCC) to process their temporary resident visa applications.

Justice Henry S. Brown said the stories of applicants in Gaza were “heartbreaking” but he could not issue the orders they sought.

The court cases stem from Ottawa’s announcement of a “temporary public policy to facilitate temporary resident visas for certain extended family affected by the crisis in Gaza,” which took effect on Jan. 9, 2024.

It was supposed to provide quick refuge for Palestinians with relatives who are either Canadian citizens or permanent residents and willing to be an “anchor relative” in Canada.

The Gaza policy was capped at 5,000 visas. Court heard that almost two years later there are about 4,200 unprocessed applicants.

The policy was similar in purpose to emergency policies for Ukrainians fleeing Russia’s invasion, Afghans fleeing the Taliban’s return to power, and those in danger zones after an earthquake in Türkiye and Syria. The policies remove some criteria normally needed to enter Canada to speed things up in a crisis.

…He agreed with the applicants that the government has a legal duty to process visa applications made under the policy. He also agreed with the government that officers did not have a duty to process applications within a particular timeframe.

“I am satisfied the Applicant has a legitimate expectation to his application being dealt with in a timely manner. However, this expectation only arises when the Applicant meets all the conditions of the Policy and provides biometric information (which he is unable to do),” Brown wrote.

Brown found that Canada’s policy did not allow visa officers to override other regulations on immigration, and those regulations require a biometric check. The government argued that Ottawa has a duty to maintain the integrity of Canada’s immigration system and Brown agreed.

“The root cause of the Applicant’s failure to provide his biometric data is of course the changed operational context, namely the closure of the Rafah crossing which made obtaining and submitting biometrics impossible.”

He said because of that, the applicants did not meet the threshold for a court order forcing the government to act because that required all elements of a process to be complete before unreasonable delay can be determined.

All cases were denied.

Source: Palestinians living in Gaza lose lawsuits that would force Canada to process crisis travel visas

Filed under Immigration Tagged with , ,

Judge halts non-binary person’s deportation to the U.S. as Trump dismantles trans rights

2025/07/21 Leave a comment

Conditions have changed and assessments need to be updated but with nuance:

A Federal Court judge halted a non-binary American’s deportation from Canada pending review. Advocates say the ruling sets “an important precedent” for 2SLGBTQ+ immigrants and refugees coming to Canada from, or through, the U.S.

…Jenkel was scheduled to be deported from Canada this month. But a Federal Court judge issued a stay of removal, arguing the immigration officer who examined their case failed to take into account their role in caring for their fiancé, or the “current conditions for LGBTQ, non-binary and transgender persons” in the U.S.

Advocates for 2SLGBTQ+ migrants say this could set a precedent for other cases like Jenkel’s, and help change the way Canada’s immigration system deals with applications from the U.S.

Immigration, Refugees and Citizenship Canada (IRRC) declined to comment on Jenkel’s case, citing privacy concerns.

…Deportation order ‘failed to reflect the current reality’

Jenkel was ordered to be deported on July 3 after an initial risk assessment determined they didn’t face a credible threat in the U.S.

But Justice Julie Blackhawk halted that deportation, pending review. In her ruling, she wrote Jenkel’s risk assessment was “flawed and unreasonable.”

That’s because the immigration officer conducting the review used outdated information — a government dossier on the United States that was last updated in January 2024, says Jenkel’s lawyer.

“It’s a marked recognition that the conditions have deteriorated … since the Biden administration has left office,” Sarah Mikhail, of Smith Immigration Law in Toronto, told As It Happens host Nil Kӧksal.

“These changes are significant enough that, when assessing trans and non-binary individuals’ circumstances in Canada, this is something that needs to be taken into consideration.”

Source: Judge halts non-binary person’s deportation to the U.S. as Trump dismantles trans rights

Filed under Immigration, LGBTQ Tagged with ,

Court denies certification of $2.5-billion Black civil servants class action lawsuit

2025/03/20 1 Comment

Successful in raising the profile and issue, but ultimately failed at court. And the plaintiffs assertion that “they deserve real change” discounts the overall improvement among Black public servants in terms of hirings, promotions and separations:

A Federal Court judge on Monday dismissed a motion to certify a proposed class action lawsuit that was launched by Black public servants in 2020 who alleged there was systemic racism within the public service.

In an “order and reasons” document, Justice Jocelyne Gagne said the case did not sufficiently meet the class action requirement that the claims raise common issues.

Gagne also said the scope of the plaintiffs’ claim “simply makes it unfit for a class procedure.”

Filed in 2020, the class action sought $2.5 billion in damages because of lost salaries and promotion.

The Black Class Action Secretariat, a group created as a result of the lawsuit, is seeking long-term solutions to address systemic racism and discrimination in the public service, including compensation and the appointment of a Black equity commission.

Gagne said the court acknowledges the “profoundly sad ongoing history of discrimination suffered by Black Canadians” and that plaintiffs have faced challenges in the public service.

However, she said the plaintiffs didn’t present an adequate litigation plan and that they failed to present a ground for the court to assert jurisdiction over the case.

The document also said there are several class actions against individual federal departments and agencies alleging racial discrimination, which “overlap significantly with the present action.”

Proposed class members, the judge said, “would therefore be included in the class definition of these other class proceedings.”

The Black Class Action Secretariat said in a news release Monday that the ruling was a “major disappointment, but it is not the end of our fight for justice.”

“For five years, this has been a David vs. Goliath battle, and while today’s outcome is frustrating, it only strengthens our resolve,” the organization said.

The news release said systemic anti-Black racism has long been recognized by the federal government and that the plaintiffs will meet with their legal team to “explore next steps.”

In 2023, a grievance ruling by the Treasury Board Secretariat found that the Canadian Human Rights Commission discriminated against its Black and racialized employees. In 2024, an internal report found that public servants working at the Privy Council Office were subject to racial stereotyping, microaggressions and verbal violence.

“For decades, Black public service workers have faced systemic discrimination, and today’s decision does nothing to change that reality,” Thompson said.

A Federal Court hearing took place last fall to help determine whether the class-action lawsuit could proceed.

At the time, the federal government filed a motion to strike, asking the judge to dismiss the case. The government argued that Black public servants could file grievances or human rights complaints.

The government also called to remove Canadian Armed Forces and RCMP members, as well as Department of National Defence and Correctional Service Canada employees as class members because of similar class action lawsuits against those departments.

Thompson says the government used procedural barriers to “avoid addressing the merits of this case, rather than standing on the side of fairness and accountability.” The government has spent around $10 million fighting the class action.

“Black workers deserve more than recognition of past harms — they deserve real change,” he said.

Source: Court denies certification of $2.5-billion Black civil servants class action lawsuit

Filed under DEI, Government, Multiculturalism Tagged with ,

Jamie Sarkonak: Immigration needs to work for Canadians, not rule-breakers from abroad

2025/01/06 Leave a comment

Two minds on this decision. On the one hand, the judge was emphasizing the welfare of children, on the other hand, clearly fraudulent refugee case. And will the family be actually deported once the school year is over?

…Ministers have the power to step in and block deportations — I have no problem with that — but the government shouldn’t be obligated to carry out lengthy procedures designed to give those here illegally every shot at staying. In a country with supposedly fixed borders and social supports, it shouldn’t take this much state capacity to remove those who aren’t cleared to be here.

On the criminal front, it’s just as bad. Due to court precedent, Canadian judges are obligated to consider “immigration consequences” when sentencing non-citizen offenders. In some cases, it results in a sentence discount: nightclub gropers and drunken burglars from abroad have received lighter sentences under this rule to give them a greater shot at remaining in Canada.

There are plenty more legitimate refugees, and otherwise law-abiding non-citizen newcomers who are eager to adapt to Canadian life and get on the path to citizenship. Let state resources go to supporting them, and not people who abuse our rules to harm others and extend their already illegal stays.

Canadians deserve a system that works for them, not outsiders. Let that be a change that graces us in 2025.

Source: Jamie Sarkonak: Immigration needs to work for Canadians, not rule-breakers from abroad

Filed under Immigration, Refugees Tagged with , , ,

Courts warn of ‘critical’ budget pressures as immigration cases delayed in Canada’s 3 largest cities

2024/12/10 Leave a comment

Yet another example where high levels of immigration have contributed to pressures on government services, in this cases, the courts. IRCC has about 80 percent of cases against the federal government:

Federal Justice Minister Arif Virani is set to meet with the chief justices of Canada’s four federal courts on Friday, after they warned of a budgetary shortfall creating “critical” pressure on their operations, including efforts to clear a backlog of immigration filings in three major cities.

The Federal Court alone is estimating that it’s on track for an almost 50 per cent increase in the filings this year.

The four courts also said they have an estimated $35 million annual gap in funding impacting court operations. The National Post first reported about the budgetary issues faced by the courts on Thursday.

“At a minimum, cases will take longer to be heard, and modernization efforts will be slowed down or stopped, to the detriment of litigants and access to justice,” the Courts Administration Service (CAS) said in a statement to CBC News. The arm’s-length federal body serves the Federal Court and Canada’s three other federal courts, the Federal Court of Appeal, the Court Martial Appeal Court of Canada and the Tax Court of Canada.

“Immigration cases are already being delayed and are not being heard within the statutory time limit,” the CAS said.

It noted that the Federal Court expects to reach 24,000 immigration and refugee case filings this year, an increase of 44 per cent over 2023, and quadruple the average number of filings it had in the pre-COVID days….

Source: Courts warn of ‘critical’ budget pressures as immigration cases delayed in Canada’s 3 largest cities

Filed under Immigration Tagged with , ,

Court grants Ottawa four more months to fix unconstitutional ‘lost Canadians’ law

2024/08/06 Leave a comment

Expected. Original deadline totally unreasonable given legislative processes:

A court has granted the federal government more time to amend unconstitutional legislation concerning so-called “lost Canadians.”

The deadline extension — to Dec. 19 — is the second the courts have given Ottawa to amend the law, which prevents some Canadians born abroad from passing on their citizenship to children also born abroad.

Bill C-71, which introduces sweeping changes to Canada’s citizenship laws, is set to become law by Dec. 19. The federal government says the legislation addresses the court’s concerns about constitutionality.

In her decision to grant the extension, Ontario Superior Court Justice Jasmine Akbarali said the government was able to address concerns about the hardship Canadians could face if the amended legislation is delayed again.

“The mechanism in place to address urgent cases of hardship is sufficient to ensure that an extension of the declaration of invalidity will not undermine confidence in the administration of justice,” the judge said in the decision.

Justice Akbarali initially gave Ottawa until June 20 to amend the current Citizenship Act after the Ontario Superior Court of Justice ruled in late 2023 that it violated the constitutional rights of some Canadians born abroad.

The Liberal government did not get the bill passed through the House of Commons before it rose for the summer a few days before the deadline.

The government appealed for a six-month extension. Justice Akbarali handed down a seven-week extension, to Aug. 9.

In granting the original extension, the judge said the government would only have until Aug. 1 to present arguments on why she should consider another extension until Dec. 19.

Justice Akbarali ordered the government to file a plan to address the hardship experienced by parents under the existing law during the extended period and to “ideally” file a report on the steps required to get the bill passed before mid-December.

Sujit Choudhry, the lawyer who represented the families challenging the law, estimates that the current law violates the rights of at least 1.48 million Canadians here and abroad.

An estimated 170,000 women born abroad who are in the age range when people often start families are still being affected by the current law, the judge said in her June decision.

Justice Akbarali added 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 the 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.”

Until Bill C-71 is passed, the government can grant citizenship to lost Canadians at Immigration Minister Marc Miller’s discretion.

Source: Court grants Ottawa four more months to fix unconstitutional ‘lost Canadians’ law

Filed under C-71, Citizenship Tagged with ,

Ottawa prepares bill to reinstate citizenship rights of ‘lost Canadians’

2024/05/13 Leave a comment

Hard to see that bill will make it through both houses by the June 19 deadline, likely meaning no restrictions pending the Bill becoming law:

Ottawa is preparing a bill to reinstate rights for “lost Canadians” after an Ontario court ruled it is unconstitutional to deny citizenship to children born overseas to Canadians also born outside the country.

The bill is expected to require a Canadian parent born abroad to demonstrate substantial ties to Canada before they can pass on citizenship to a child born outside Canada.

The bill would reverse a change by Stephen Harper’s government in 2009 which stripped children of a Canadian parent born outside Canada of their automatic right to citizenship.

The 2009 change was designed to crack down on what Conservatives called “Canadians of convenience.” It followed an outcry after Canada spent more than $80-million to evacuate 15,000 Canadian citizens from Lebanon in 2006 during the Israel-Hezbollah war….

Source: Ottawa prepares bill to reinstate citizenship rights of ‘lost Canadians’

Filed under Citizenship Tagged with ,

Canada’s controversial ban on adoptions from several Muslim countries sparks court challenge

2024/01/23 Leave a comment

Another case to watch (hard to understand rationale for difference with USA, UK and Australia which allow the practice, when government does not appear to have articulated the reasons):

A major challenge of Canada’s ban on adoptions from several Muslim countries is set to play out in the Federal Court — a move some legal observers say wouldn’t be necessary if the government wasn’t upholding what they call a “discriminatory” policy.

The case, which could be heard as early as April, comes more than five years after the federal government promised to review the ban introduced when the Conservatives last held office. Since then, the Liberal government has refused to say whether that review took place or what it involved, despite repeated inquiries from CBC News.

In 2013, Canada suddenly put a stop to adoptions from Pakistan, arguing Shariah law doesn’t allow for birth ties between a parent and child to be severed and that the Islamic principle of guardianship (kafala) could no longer be recognized as the basis for adoption. The United States, United Kingdom and Australia all continue to allow adoptions from Pakistan, despite Canada’s claim that doing so would violate its commitment to the Hague Convention.

While on paper the ban applied only to Pakistan, an investigation by CBC’s The Fifth Estate found that in practice, immigration officials quietly extended it to other Muslim-majority countries, including Iran, Sudan, Iraq, Qatar, Afghanistan and Algeria.

An access-to-information request on the ban turned up dozens of redacted pages, including a June 25, 2013, memo marked “secret,” titled “Canadian programming to counter the terrorist threat from Pakistan” — raising questions about what national security might have to do with the adoption of children.

One legal observer said that not only is the ban discriminatory, but it unfairly puts the burden on individual families to argue the validity of their religious traditions.

“Frankly, I’m shocked that the government has not revisited this legislatively,” said Faisal Bhabha, an associate professor at York University’s Osgoode Hall Law School in Toronto. “A case like this should really not fall on the shoulders of a family.

“The last thing they need is for their government to be telling them what their religion prescribes or doesn’t prescribe…. I don’t see how this case could not be successful.”

Pakistani court gives permission for adoption

At the centre of the court challenge is a Toronto woman who became the caregiver to her sister’s three children while living in Pakistan after her sister’s death. Since 2012, Jameela Qadeer has cared for her sister’s son and two daughters as if they were her own, with their father unable to do so.

“When their biological mother died, I knew that I would do anything I could to make sure that they never felt motherless,” she told CBC News, recalling how they’d sleep in one bed together so they wouldn’t feel alone.

A major challenge of Canada’s ban on adoptions from many Muslim countries is set to play out at the Federal Court. Jameela Qadeer took in her sister’s three children after her death more than a decade ago. A Pakistan court recognized her as their adoptive mother but after an abrupt 2013 change, Canada says the Islamic legal principle of guardianship Pakistan and other countries use doesn’t meet the bar of a parent-child relationship.

Now separated from the children, she said, “I think about that now and as I’m going to sleep.”

As an Ahmadi Muslim facing persecution in Pakistan, Qadeer moved to Canada more than six years ago with her biological daughter, first with protected status and now as a permanent resident. But she soon learned Canada wouldn’t recognize her sister’s children as her own.

Pakistan has no official adoption law. Instead, like many other Muslim countries, it relies on the principle of guardianship, which preserves lineage to protect inheritance rights, for example.

To facilitate adoptions abroad, Pakistan’s courts routinely grant permission for those with guardianship orders to complete adoptions in other countries. That was the case with Canada until the 2013 ban.

Qadeer, whose husband has been working in South Africa, formalized her guardianship of the children in Pakistan in 2017. In 2019, after Canada’s refusal to recognize the children as her own, she turned to a Pakistani court, which declared her their adoptive mother.

Canada still refused the children’s application to join her, with an immigration officer saying that “the guardianship arrangements confirmed by the courts in Pakistan do not create a legal parent-child relationship.”

When Qadeer first applied in 2017 to bring the children to Canada, all three were minors. Today, they’re 19, 23 and 25 years old. Asked if their ages could hurt the case, their lawyer said what matters is the date the application was filed.

Qadeer said Canada’s refusal to recognize the children as her own means they could be ripped away from a mother for a second time.

“I would feel like I’ve gotten heaven on Earth” if the children were here, she said.

‘I believe the law is discriminatory’: lawyer

Qadeer’s Toronto-based lawyer, Warda Shazadi Meighen, said she believes the constitutional challenge is the first of its kind.

“I believe the law is discriminatory,” she said in an interview.

The crux of the case, Shazadi Meighen said, is that if the children had been adopted through a legal system not based in Islamic law, Canada would recognize their adoptions — meaning their very identities prevent them from being together as a family.

The children “are unable to reunite with their adoptive mother in Canada and unable to access permanent residence, unlike adopted family members of protected persons in Canada who do not follow Islamic law and/or are not of Pakistani origin and based in Pakistan,” Qadeer’s court filing says.

The filing says Canada’s refusal to recognize Qadeer’s relationship with the children violates the Charter of Rights and Freedoms, specifically Section 15 (equality rights), Section 2(a) (freedom of religion) and Section 7 (right to security of the person).

“The bottom line is there is no other parent for these children,” Shazadi Meighen said.

In 2018, Pakistan’s High Commission in Ottawa said the claim that Pakistan’s legal system did not allow for adoptions was false. “We believe that the ban from the Canadian government is unjustified,” spokesperson Nadeem Kiani said then.

At the time, then-immigration minister Ahmed Hussen’s press secretary told The Fifth Estate: “We have asked the department to initiate a review of this policy and begin consultations with Pakistan as well as provincial and territorial governments to determine a path forward to regularize adoptions from Pakistan.”

Government not commenting on case

Asked by CBC News if that review ever happened, Immigration, Refugees and Citizenship Canada would not say. The department also said it could not comment on active litigation cases.

“We understand and sympathize with prospective parents who have experienced hardships while trying to bring children under guardianship placement from Pakistan to Canada,” spokesperson Mary Rose Sabater said in an emailed statement.

Source: Canada’s controversial ban on adoptions from several Muslim countries sparks court challenge

Filed under Immigration Tagged with , ,

Feds won’t appeal landmark #citizenship ruling for ‘Lost Canadians’

2024/01/23 Leave a comment

sigh….

Will see how the government intends to meet the required change, whether through the short-cut of S-245 or a separate bill that would follow established parliamentary committee hearings:

The federal government will not appeal a court ruling that found part of Canada’s Citizenship Act to be unconstitutional.

Last month, an Ontario Superior Court justice found the federal government violated Charter rights with its “second-generation cut-off” rule, which denies automatic citizenship to children born abroad if their Canadian parents were also born abroad.

In an interview with CBC News Sunday, lawyer Sujit Choudhry confirmed federal government representatives informed him last week that there would be no appeal.

Ottawa had 30 days to appeal the ruling — a deadline that passed on Thursday.

“My clients are relieved. It’s been a long, hard fight,” said Choudhry, who is representing families affected by the law.

Choudhry filed a constitutional challenge in December 2021, suing the federal government for denying his clients the right to transmit their citizenship to their foreign-born offspring.

Critics have long said the law creates two tiers of citizenship, creating different rules for Canadians depending on whether they were born abroad.

In her December ruling, Ontario Superior Court Justice Jasmine Akbarali agreed, writing that foreign-born Canadians born abroad hold “a lesser class of citizenship because, unlike Canadian-born citizens, they are unable to pass on Canadian citizenship by descent to their children born abroad.”

The case is lauded as a win for up to 200,000 “Lost Canadians” — groups of people not considered citizens because of gaps or contested interpretations of citizenship law.

The second-generation cut-off was created in 2009 as part of a crackdown by Prime Minister Stephen Harper’s government on Canadian citizens who lived permanently outside of the country. The move came in response to an $85-million evacuation of 15,000 Lebanese Canadians stranded in Beirut during the 2006 conflict between Israel and Hezbollah.

In her ruling, Akbarali noted public anxiety over the Beirut evacuation, but wrote “the highest the evidence goes is to show that some people were concerned about it… there is no evidence to demonstrate that there are citizens without a connection to Canada, nor that if any such citizens exist, that their existence or citizenship creates any kind of problem.”

Federal government must act

The federal government has six months to repeal the second-generation cutoff in the law — a move that will require either fresh legislation, or potentially the passage of a bill already being debated.

Senate Bill S-245 was amended in committee to remove the second-generation cut-off rule and replace it with a “substantial connections test” to pass on citizenship to the children of foreign-born Canadians who were born abroad.

In her ruling, Akbarali described S-245 as a “head start” for Parliamentarians to amend the Citizenship Act law to make it fully constitutional within six months.

How the federal government will respond is unclear. The office of Immigration, Refugees and Citizenship Canada Minister Marc Miller declined to comment.

The court also ordered the federal government to grant citizenship to the four foreign-born children of three Canadian families involved in the case. Choudhry says they received certifications of their citizenship last week.

“They’re beyond elated,” he said.

Source: Feds won’t appeal landmark citizenship ruling for ‘Lost Canadians’

Filed under Citizenship Tagged with , , ,

What a recent court ruling on Canada’s Citizenship Act means for ‘lost Canadians’

2024/01/11 Leave a comment

Useful and reasonable analysis and we will see if the government chooses to appeal or not on the basis of the reasoning used:

In December 2023, Ontario’s Superior Court determined that what’s known as the “second-generation cut-off rule” in the federal Citizenship Act violates the Canadian Charter of Rights and Freedoms by discriminating on the basis of national origin and sex. 

The second-generation rule was adopted in 2009 under Stephen Harper’s Conservative government. 

It limited Canadian citizenship to the first generation born abroad in an effort to create a clear and simple rule, and, according to Diane Finley, the minister of citizenship and immigration at the time, to “protect the value of Canadian citizenship by ensuring that our citizens have a real connection to this country.”

The concern with connection makes sense. Members of a political community — citizens — should have a relationship to that community. But what does connection mean, and how do we know when it exists? 

Secure claim to citizenship?

Canada, like many other countries in the world, uses birth as a proxy for connection. If you’re born in Canada or you’re born abroad to a parent who’s a Canadian citizen, you too are a citizen. 

In many cases, birth appears to offer a secure claim to citizenship since the facts of someone’s birth are generally unassailable. But as the second-generation cut-off rule demonstrates, governments can shift the legal meaning of those circumstances with significant repercussions.

The Bjorkquist et al. v. Attorney General of Canada case heard in Ontario in December involves seven families. Their children were born abroad and denied Canadian citizenship because their Canadian parent or parents were also born abroad. 

In each family, the parent has lived in Canada for many years, views Canada as their home and/or intends to return to Canada if they aren’t currently living here. The parents, all Canadian citizens, argued their inability to pass on their citizenship to their children, despite their connection to Canada, imposed second-class citizenship status upon them. The court agreed. 

Back when the law was changed, the House of Commons Committee on Citizenship and Immigration unanimously endorsed the second-generation cut-off. Effectively, the clause was the cost for passing a larger package of reforms to the Citizenship Act.

For several years, people known as the “lost Canadians” — those who have fallen through the cracks of complex citizenship law — had been advocating for changes that would address discriminatory provisions in the act. 

These people considered themselves Canadians, but had been denied citizenship because of their age, and/or the sex and marital status of their Canadian parent at the time of their birth. 

For example, prior to 2009, a child born abroad before Feb. 15, 1977, to a Canadian woman married to a non-Canadian would not be entitled to Canadian citizenship. The reform package removed the sex and wedlock status of the Canadian parent as conditions for citizenship for children born abroad after Jan. 1, 1947, when Canada’s first Citizenship Act came into force. 

Inconsistently enforced

Another challenge leading to those reforms was a requirement that second-generation children born abroad affirm their citizenship by the age of 28. They also had to demonstrate one year of residency in Canada immediately prior to applying or some other substantial connection to the country.

In practice, though, many Canadians born abroad were unaware of this provision, and it was inconsistently enforced.

Limiting citizenship to the first generation born abroad offered a simple, if blunt, solution to this problem. Parliamentarians were also assured that an expedited immigration sponsorship processwould address situations like those faced by the Bjorkquist et al.families. 

Unfortunately, that process has proven unreliable — so much so, in fact, that the judge in the Bjorkquist case described it as “error-riddled, highly discretionary, and inequitable in …application, and as such … unsatisfactory.”

It’s clear that the second-generation cut-off rule excludes children whose parents have a demonstrable connection to Canada, and who have a high likelihood of being connected to Canada as well. So how might that connection be established? 

Parliament is currently considering Bill S-245, that would amend the Citizenship Act. Its original draft proposed reinstating the second-generation affirmation and one-year residency requirement. 

It now includes an amendment requiring a more rigorous connection test, drawing from Canada’s requirements for permanent residency. The Canadian parent of a child born abroad would need to have lived in Canada for 1,095 days (three years) in total prior to the birth of their child. 

Relying on proxies

In this way, the Citizenship Act could address concerns about what Finley referred to as “endless generations living abroad”that spurred the creation of the second-generation cut-off rule in the first place. As well, Canadians would be able to pursue opportunities around the world while maintaining their connection to Canada.

Ultimately, what’s at issue is what’s considered the threshold for citizenship. Canada doesn’t require citizens or those claiming citizenship to pass civics tests or commit to substantive engagement in governing. Instead, it relies on proxies like birth, residency and time since they appear less vulnerable to political manipulation.

These proxies may be imperfect. Yet the Bjorkquist case suggests that when thoughtfully constructed, they can ensure Canadian citizenship is bestowed upon those whose attachment and contributions to Canada are real.

Source: What a recent court ruling on Canada’s Citizenship Act means for ‘lost Canadians’

Filed under Citizenship Tagged with , ,

← Older posts