Questions persist as Ottawa prepares  Citizenship Act amendments

2024/05/20 Leave a comment

We should know soon enough.

The legislation applying a first generation citizenship transmission limit included provisions for stateless provisions. However, IRCC citizenship operational statistics do not include a stateless category (standard table understandably is country of birth, not citizenship) and Statistics Canada does not capture how many stateless persons became citizens, which some certainly did.

However, IRCC operational statistics show a monthly average of about 90 stateless permanent residents since the pandemic and presumably most will apply and become citizens given their interest in having the security that citizenship provides.

The “lost Canadians” have mostly been found given successive lobbying and changes to the Citizenship Act to address gaps, even if the gaps were proven to the exaggerated as the number of total numbers of citizenship proofs were significant lower than the claims (22,000, 2007-22, data provided by IRCC).

Will see if the government uses the same residency requirements for children caught by the first generation cut-off as for immigrants, or whether it reverts to previous complex and contentious retention provisions:

The federal government is said to be preparing a bill to amend the Citizenship Act, but the details are still unclear – a concern for more than 3,500 stateless people who are in the country but have no access to critical services such as medical care.

They include former Canadians who had their citizenship revoked due to now-repealed provisions of the act. These nationless people are known as “Lost Canadians.”

The news comes after months of quiet on this issue. Last December, the Ontario Superior Court of Justice ruled the act unconstitutionally creates two classes of Canadians and gave the government until June 19 to amend the Citizenship Act. The government said it wouldn’t challenge the decision but shared nothing further on the work being done.

The court also found the act has uneven impacts on women, particularly under Section 3(3)(a) which prevents certain second-generation Canadian mothers who live abroad from passing citizenship to their children, unless they return to Canada to give birth.

On Saturday, The Globe and Mail reported that the government has drafted a new bill to respond to the court order amid frustrations over the lack of progress on Bill S-245, which attempts to achieve the same goals. NDP member Jenny Kwan blamed Conservative filibuster tactics for causing the delay.

A Commons committee completed its considerations of Bill S-245 nearly a year ago but an official website reports “no activity” on the file. Third and final reading of the bill in the Commons was scheduled in January but was cancelled, and there remains no new date for this.

If passed into law, Bill S-245 would reinstate citizenship for those born abroad to Canadian parents between 1977 and 1981, though critics have argued it doesn’t go far enough to help tens of thousands who fall outside of that category.

Word that the government is preparing its own legislation on the issue should bring hope to the families torn apart by the act’s outdated provisions, but questions remain about the possible continued use of a “substantial connection test.”

The legislation may require the parents in these families to prove their ties to Canada to be able to pass down citizenship to children born abroad. The criteria for this test are not publicly known.

Meanwhile, Lost Canadians whose fates have rested on the passing of Bill S-245 or similar legislation continue to be denied access to health care, education and employment as they await more information.

The federal government should not delay in sharing the steps it intends to take to amend the Citizenship Act. A lack of transparency and communication about past changes to the legislation created this problem in the first place – and keeping the public in the dark will only prolong it.

How citizenship is lost 

The Citizenship Act has been amended several times since it was enacted in 1947, including provisions introduced in 1977 and 2009 that stripped certain born-abroad Canadians of their citizenship.

Thousands lost their citizenship because they were born outside Canada or had lived abroad for six or more years. Dual citizenship holders at one point faced deportation, while those who possessed only Canadian citizenship became stateless. A 2007 CBC investigation revealed up to 200,000 people were impacted.

Other amendments to the act have consistently failed to help several categories of Lost Canadians, including children born out of wedlock to Canadian servicemen and a foreign mother during wartime, and citizens born abroad between 1977 and 1981.

Who “counts” as Canadian?

The definition of Canadian citizenship is complicated. The first iteration of the Citizenship Act created two classes of “natural-born Canadians” who could hold citizenship: people born in Canada or on a Canadian ship or aircraft, and children born abroad to a Canadian-born father before 1947.

When a 1977 amendment restored the legality of dual citizenship, those who had lost their Canadian status under the original legislation did not have it automatically reinstated.

That 1977 amendment also introduced a new provision: under Section 8, born-abroad Canadians would have to apply to keep their citizenship before turning 28 years old – and would also need to have resided in Canada for the year preceding their application. Most affected Canadians were not informed of these requirements.

In 2009, attempting to resolve these complications, the Stephen Harper government repealed Section 8 by passing Bill C-37. However, the amendment came with two caveats:

  • First, those who had lost citizenship under the now-repealed provisions would not have it restored automatically. These former Canadians could apply for citizenship, but with no guarantee of approval. (The repeal also did not apply to Lost Canadians born abroad between 1977 and 1981.)
  • Second, a born-abroad Canadian could pass down citizenship only to children born in Canada. Children born abroad to second- or subsequent-generation Canadians would need to apply for immigrant or refugee status to follow their parents back to Canada. If born in a country without a birthright citizenship law, the children would be stateless – a major human rights violation, according to the United Nations.

Lost Canadians claim they were informed of the conditionality of their citizenship only when it was too late, such as when, after age 28, they applied for government pensions, driver’s licences, passport renewals or health care.

That was the case for Pete Giesbrecht. Born in Mexico in 1979 to born-abroad Canadian parents, the family returned to Canada when he was seven years old. But when Giesbrecht applied to renew his passport in 2015 – after living nearly 30 years in Canada – he was told he faced possible deportation.

Giesbrecht was officially stateless, without citizenship in another country to which he could be deported. When he reapplied for Canadian citizenship, he was required to prove his long-time connection to the country. After two years of uncertainty, Giesbrecht found a community of Lost Canadians to help advocate on his behalf and was re-granted citizenship.

Ontario court highlights sex discrimination

The Ontario Superior Court of Justice ruling in December found the Citizenship Act confers “a lesser class of citizenship” to Canadians born outside the country and echoed criticisms of the second-generation cut-off rule’s unjust impact on women.

Adoptees of foreign-born children, and second-generation, born-abroad Canadian mothers who gave birth abroad, are among those who have faced an undue burden. If a woman moved abroad for work and became pregnant in another country, she was required to return to Canada to give birth to pass down her citizenship.

Victoria Maruyama, a Canadian who gave birth while working in Japan temporarily, was told she had to apply to sponsor her two children as immigrants to Canada. On both occasions, her applications were rejected.

A few high-profile cases have succeeded in catching the attention – and intervention – of the immigration minister. One example is 16-year-old Olympic hopeful Erin Brooks, whose bid for citizenship has been successful. However, most families have been left dangling in uncertainty.

What now?

It’s not known whether the government will release more information about how it intends to modify the act before the June deadline.

As far as we know, the latest news does not guarantee Canadian citizenship for all applicants. The expectation that families will be required to pass a substantial connection test to bring their children into Canada means there’s a possibility their applications will be denied.

The lack of clarity leaves a cloud of doubt looming over Lost Canadians. How much longer will they have to wait?

After so many years of confusion and oscillation, it seems imperative for the government to share in greater detail how it plans to move forward.

Source: Questions persist as Ottawa prepares Citizenship Act amendments

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 , ,

Amended bill that would extend citizenship rights to some born abroad heads to House

2023/06/09 Leave a comment

CPC objections to process are valid. Practicality of implementing change is also in question as experience with previous retention provisions illustrates:

A committee of MPs approved Citizenship Act changes that allow some born abroad to adopt their Canadian parent’s citizenship Wednesday, despite objections from Conservatives about a lack of due process.

In 2009, the Conservative government changed the law to make it so that Canadian parents who were born abroad could not pass down their citizenship unless their child was born in Canada.

The NDP has proposed a change that would grant citizenship to the child if the 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 Conservative senator’s private member’s bill at the House of Commons immigration committee.

Conservative immigration critic Tom Kmiec called the amendments “vandalism” of the original spirit of the bill, because the changes were so drastic.

“That is a concern to me, that this might happen to any one of us with our bills in the future, where the content might be deleted and replaced with things we don’t agree with,” Kmiec said during debate earlier this week.

The Conservatives are now in the awkward position of sponsoring a bill in the Commons that they don’t support and won’t vote for.

The testimony and drawn-out debate over the bill and amendments at the committee went on for 12 meetings, sparking concerns the Conservatives would prevent the changes from reaching the House at all.

The committee had until June 14 to finish reviewing the amended bill, or else it would have been sent back to the House of Commons without the new changes.

In its original version, Conservative Sen. Yonah Martin’s bill would have granted citizenship to a small number of people who were stripped of their Canadian legal status between 1977 and 1981 because of a quirk in the law.

The NDP and Liberal amendments make much more sweeping changes, including tweaks to ensure that children adopted by Canadian parents from abroad would have the same citizenship rights as those who were born in or immigrated to Canada.

Conservative MP Michelle Rempel Garner says the bill will now face extra scrutiny and holdups because the proper process wasn’t followed.

She repeatedly expressed concerns about making major changes to the Citizenship Act without consulting experts or even having an idea of how many people could be affected.

Conservatives also pushed for tougher requirements for parents who wish to prove their connection to Canada, but their ideas were dismissed by other members on the committee.

“We came into this all in agreement on passing this bill expeditiously,” Rempel Garner said during the debate earlier this week. “My sense is that is not going to be the case.”

The revised legislation will need to make its way through another vote in the House before the changes are deliberated by the Senate.

NDP immigration critic Jenny Kwan said she’s hopeful the changes will be realized, and children born abroad will have a chance at inheriting Canadian citizenship.

“I remain optimistic that at the end of the day, people will put aside the partisan politics,” she said.

Source: Amended bill that would extend citizenship rights to some born …

Filed under Citizenship Tagged with , ,

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

Filed under Citizenship Tagged with , , ,

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 …

Filed under Citizenship Tagged with , , ,

‘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

Filed under Citizenship Tagged with , , ,

Chris Selley: Asking a baby to get help from Russia is another Ottawa disgrace

2022/06/20 Leave a comment

These kinds of stories are showing up more regularly, given the (small) number of cases and the publicity of the court case and efforts by the lawyer and advocates to generate public attention.

The advantage of the first generation cut-off remains its clarity and simplicity to administer in a consistent manner, in contrast to the previous provisions which were not. But part of the “package” when the change was made over 10 years ago were provisions for statelessness whose implementation would take into account the particular circumstances, implicitly in an understanding if not compassionate manner.

This would appear to be one of those situations where IRCC could have shown more common sense in reviewing the case.

Unfortunately, we can’t be surprised by the obtuseness regarding Russia given Global Affairs and their Minister’s Office regarding the Russia Day embassy reception:

Recent events have called ever more into question Canada’s basic competencies on the world stage, both on the ground and especially in the back office. We made a hash of evacuating our Afghan friends as the Taliban retook the country, then forced many who escaped to wait for months while we churned through their paperwork. The same delays are plaguing many Ukrainians who accepted Canada’s offers of help. Speaking of Ukraine: A senior foreign affairs official’s presence at the Russian embassy’s garden party continues to boggle the national mind. On the much more mundane end of the spectrum: With six months’ notice, IRCC failed to approve a visa for popular Formula One reporter Karun Chandhok in time for this weekend’s Montreal Grand Prix.

Is it sloth? Understaffing? Active malice? It’s difficult to tell. But the story of the Burgess family — father and husband Gregory, mother and wife Viktoriya, and baby Philip, who currently live in Hong Kong — combines all these threads into a perfectly absurd package.

I first spoke to Gregory around six months ago. He is a 46-year-old Edmontonian with deep, permanent roots (and citizenship) in Canada and nowhere else — his great-grandparents immigrated to Alberta from Ukraine in 1894 — but who just happened to have been born in Connecticut. Because his infant son Philip was the second consecutive generation born on foreign soil, our citizenship law does not automatically recognize Philip as Canadian. Gregory and Viktoriya, who is Russian, nevertheless wish to relocate eventually to Canada and think it reasonable they be allowed to do so.

The bureaucrats at Immigration, Refugees and Citizenship Canada (IRCC) are having none of it.

Six months ago, the situation was approaching emergency: Gregory’s and Viktoriya’s work visas were soon to expire. Things have stabilized since, Gregory told me this week over Zoom while wrangling a seven-month-old at 6 a.m. “Hong Kong has been very humane to us,” he said, including issuing Philip a Hong Kong identity card. That’s at least proof that a government recognizes his existence, but it offers no path to citizenship.

The Burgesses and their lawyers and advocates quite reasonably insist Philip is stateless as defined in the 1954 UN Convention: “a person who is not considered as a national by any state under the operation of its law.” In keeping with Canada’s international obligations, the Citizenship Act compels minister Sean Fraser to unilaterally grant citizenship in some cases of statelessness, and invites him to in others.

But when Gregory filed an application for Philips’ citizenship on grounds of statelessness, he got an amazing answer: Basically, IRCC wants proof some other country won’t take the kid off their hands.

On June 3, “senior decision maker” E. Nguyen wrote to Burgess asking for “a resual (sic) letter and/or correpondence (sic) from the American authorities advising that Philip … does not have a claim to American citizenship.” (Refusal and correspondence are the mistyped words.)

The answer is a bit complicated, but nevertheless U.S. citizenship rules are clear and easily Googleable: The simple answer is no.

It gets better: E. Nguyen wants the same refusal letter — no word of a lie — from the Russian authorities.

These are the Russian authorities raining death on Ukraine, heavily sanctioned by Ottawa, whose garden parties we must on no account attend. Canada’s travel advisory for Russia flashes bright red: “If you are in Russia, you should leave.”

Oh, and senior decision-maker E. Nguyen requires these documents within 30 days. IRCC would struggle to order a pizza in 30 days.

Even if the Burgess family were content to live in a pariah state run by a warmongering madman, Russia wouldn’t be a realistic option: Russian citizenship rules, also easily Googleable, stipulate Gregory would need to formally agree to Philip gaining Russian citizenship through his mother — but Gregory would have no immediate claim to citizenship himself. What parent would consent to the potential splitting up of his family?

When I wrote about this in January, two people with intimate knowledge of the IRCC bureaucracy and the Citizenship Act objected to my characterization of the second-generation-born-aboard rule as a “dumb law, easily fixed.” I remain convinced: Instead of judging prospective infant citizens by their parents’ accidental birthplaces, we should judge them by their parents’ substantial connection to Canada, just as we do for would-be naturalized citizens.

Admittedly, though, that’s only a fix in law. If it takes two or three or four years for IRCC to determine such “substantial connections,” families like the Burgesses will still be left in the lurch. And many will be in much more perilous situations than the Burgesses are.

In the meantime, there is an easy fix: Sean Fraser, the minister, can grant citizenship to anyone he chooses, any time he likes, as often as he likes. Unfortunately, with more than 24 hours’ notice, IRCC could not manage to respond to my questions, which included “why won’t he?”

Gregory is admirably equanimous about all this. “I don’t want to overdramatize things,” he told me. “It’s not terrible. … We’re OK here and everything’s fine.” But that uncertainty hangs over their heads, and they’re baffled. “I don’t know what the agenda is,” Gregory said. “I don’t know what’s achieved by this.”

Me neither.

There aren’t tens of thousands of Canadians in similar situations as the Burgesses, but there aren’t just dozens either. Whatever resources are being expended fighting seven-month-old Philip Burgess for Canadian citizenship — and a good few other children in the same situation — would surely be put to better use helping our various and shameful citizenship-and-immigration backlogs.

Source: Chris Selley: Asking a baby to get help from Russia is another Ottawa disgrace

And from the Star:

A Canadian with Ukrainian roots has been told his baby boy may have to apply — and be rejected — for Russian citizenship before he can become a Canadian.

“My son is not going to Russia and not becoming a Russian citizen when they’re killing Ukrainians,” says Gregory Burgess.

The bizarre situation has come about for a baby who is technically considered “stateless” because neither he nor his father was born in Canada.

Burgess, 46, has always considered himself a Canadian. He grew up in Edmonton and his Ukrainian great-grandparents arrived in what is today’s Alberta back in 1894.

But Burgess was born in the United States, where his father was then working, before coming to Canada at age seven. He acquired citizenship through his Canadian mother.

That, coupled with the fact that his son was born during the pandemic in Hong Kong, where Burgess is currently working, has meant the baby is not guaranteed Canadian citizenship.

It’s the result of a controversial policy change brought in by the Conservative government of Stephen Harper back in 2009 that was meant to curtail the number of “Canadians of convenience.”

“Canada is my home,” says Burgess. “I don’t have another home. It’s where my family has been for more than a hundred years.”

The so-called “second generation” citizenship cut-off against Canadians born abroad was introduced by the Conservative government after Ottawa’s massive effort to evacuate 15,000 Lebanese Canadians from 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.

It’s now complicating things for Burgess.

The expat spent his formative years in Canada and graduated from the University of Alberta.

“My mother got us citizenship. And as soon as my Canadian citizenship was taken care of, one wouldn’t assume that somewhere down the road you become a lesser citizen because of it.”

Starting in 2004, he took up jobs in Asia. He met his now wife, Viktoriya Kharzhanovich, in 2017 when he was working in Shanghai. The following year, she applied unsuccessfully for a Canadian visa to accompany him to his cousin’s wedding.

In 2019, he started to explore the spousal sponsorship process to bring his common-law wife to Canada, just before the pandemic was beginning in China.

The couple moved to Hong Kong from China in June 2020 when he got a two-year employment contract in building information management there. Meanwhile, he and his wife, now 41, decided to start a family.

Due to the arduous paperwork required, they didn’t submit their spousal application until last November. It was during their preparation for the application when his lawyer noticed he wasn’t born in Canada and raised the issue about the two-generation citizenship cutoff for the yet-to-be born Philip.

Kharzhanovich, who had already been refused a visitor visa before, was more than seven months into her pregnancy and did not have an obstetrician and gynecologist or health insurance in Canada. She was also not scheduled for her COVID vaccination until after giving birth to Philip.

“After consulting physicians, researching flights, examining visa options, and studying quarantine rules, we determined that it was not safe or possible to fly to Canada for Viktoriya to give birth there,” says Burgess, who has since joined six other Canadian families in a Charter challenge against the citizenship cut-off rules.

Since neither Burgess nor his wife is a Hong Kong citizen or permanent resident, Philip doesn’t have permanent status in the former British colony, now part of the People’s Republic of China.

“It’s a lot of sleepless nights,” Burgess says. “It’s very important to me that I never lose my job (in Hong Kong) and nothing ever goes wrong because if it does, then that’s catastrophic. And so there’s that stress.

“It’s just constantly trying to get on the paperwork and it seems endless. I keep putting in paperwork or talking to the embassy or consulate. And I’ve been at it for nine months basically.”

At the advice of the Canadian consulate, Burgess applied for a two-year “limited validity passport” for Philip in November, which was ultimately refused by Passport Canada. Burgess’s own parents weren’t abroad serving in the Canadian military or for the federal or provincial governments at his birth in the U.S., hence his baby didn’t qualify.

Earlier this year, as a last resort, Burgess filed an application for a grant of citizenship under section 5 (4) of the Canadian Citizenship Act that gives Immigration Minister Sean Fraser the discretionary power to do so to “alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada.”

In a response to the family’s request this month, the immigration department gave the couple 30 days to provide proof of Philip having been refused a claim to American and/or Russian citizenship.

“Following a review of his application and supporting documentation, it appears that Philip Alexander Burgess may have a claim to American citizenship through yourself and to Russian citizenship through his mother, Viktoriya Kharzhanovich,” said the letter prepared by the immigration case management branch.

There was no mention or concern raised about Burgess’s and the family’s expiring status in Hong Kong, and the urgency to resolve the crisis.

“I feel like I’m being asked to show that I’m in duress. It’s continually asking, ‘show us it’s a bad situation.’ And I’m like it’s not bad yet, but it’s only because I’m staying ahead of the game,” says Burgess, who does not have an American passport or meet the “substantial connection” requirement to convey citizenship to Philip.

Although Philip is not at the end of his rope and may still acquire Canadian citizenship by naturalization if his father can successfully sponsor his mother and him to Canada, Burgess says he has yet to get an acknowledgment of receipt of his sponsorship application and the family is running out of status in Hong Kong.

Their lawyer, Sujit Choudhry, says Philip’s statelessness is only one of the factors for the consideration of the immigration minister, who should not overlook the “special and unusual hardship” the family is facing under the circumstances.

“The government’s insistence that Gregory seek Russian citizenship for Philip is Kafkaesque,” says Choudhry, who is also representing the other families in the ongoing Charter challenge against the citizenship act before the Superior Court of Ontario. “Canada has advised its citizens to not travel to Russia for geopolitical reasons.

“If Philip becomes a Russian citizen, Gregory will not be able to travel to Russia to take care of him. Canada’s Citizenship Act will produce a profoundly unjust family separation. This law is clearly unconstitutional.”

Source: ‘Kafkaesque’: Will the infant son of a Ukrainian Canadian need to turn to Russia for citizenship?

Filed under Citizenship Tagged with , , ,

Am I a Canadian citizen if my parent is a Canadian?

2022/05/10 Leave a comment

Note: Revised article includes first generation limit (You might not have Canadian citizenship if you are in one of these situations).

Misleading article given that it leaves out the important qualification of the first generation limit on parents passing on their citizenship to their children if they themselves were born outside of Canada.

Surprising, given that this provision has been in place since 2009:

Canada allows the children of its citizens to apply for Canadian citizenship.

If you have at least one biological or legal parent who was a Canadian citizenship at the time of your birth, you can submit a Proof of Citizenship application to Immigration, Refugees and Citizenship Canada (IRCC). The fee is only $75 CAD.

You are able to claim Canadian citizenship at any time in your life. You are also able to apply for Proof of Citizenship even if your Canadian parent is deceased.

IRCC requires evidence of your Canadian parent. This can come in the form of your parent’s birth certificate, Canadian citizenship card, or citizenship certificate.

Once IRCC receives your application, it will send you an “acknowledgment of receipt.” They will then send you a Canadian citizenship certificate once your application has been approved.

Becoming a Canadian citizen is beneficial for many reasons. Canada is a stable country with a diverse society and strong economy. The country offers safety, security, universal healthcare, and high quality education. In addition, the Canadian passport is one of the world’s strongest, offering visa-free travel to 185 countries.

An experienced and trusted Canadian immigration lawyer can help submit your Proof of Citizenship application. They will use their expertise to ensure you submit a complete and accurate application. This is important since the pandemic has slowed down IRCC’s processing. Pre-pandemic, it took IRCC five months to process Proof of Citizenship applications. Now its website is reporting an average processing time of 17 months. A lawyer can help you avoid waiting any longer than necessary to gain Canadian citizenship.

The good news is Canada is making greater investments in technology to improve its immigration processing. Moreover, the wait to get Canadian citizenship is worth it in the end, due to the plethora of advantages Canada has to offer.

Source: Am I a Canadian citizen if my parent is a Canadian?

Filed under Multiculturalism Tagged with

‘Lost Canadians’ case challenges ‘discriminatory’ citizenship law | CTV News

2022/03/15 Leave a comment

Inevitable that the first generation limit would be eventually challenged (there was considerable and careful legal analysis when it was introduced more than 10 years ago).

And of course, citizenship and immigration legislation and policy, in setting the criteria and conditions for becoming a citizen or resident, have inherent elements of discrimination, with the issue being whether the discrimination is reasonable from a policy, program and societal perspective:

Patrick Chandler is Canadian, but he can’t pass his citizenship on to his children.

While working in China in 2008, Chandler fell in love with a Chinese woman named Fiona. The pair got married and had two kids. Then, in 2017, Chandler landed a job in British Columbia. The young family planned to move to Canada together, until they learned their children didn’t qualify for Canadian citizenship.

Chandler was born in Libya to Canadian parents. Although he’s Canadian and has spent most of his life in Ontario, his kids don’t qualify for citizenship. It’s due to a citizenship law enacted by the federal Conservatives in 2009, which prevents Canadians born abroad from passing citizenship to their children, if they too were born outside of Canada.

“The rules – the way they are set up – creates two tiers of citizens,” said Chandler. “A tier that can pass on citizenship and a tier that cannot pass on citizenship.”

The intent of the 2009 law was to prevent citizenship from being continually passed down in families with no legitimate connection to Canada. For Chandler, who grew up, studied, and works full-time in Canada, the law makes him feel like a second-class Canadian.

“(The law) devalues citizenship because it shows Canadian citizenship does not mean equality,” said Chandler. “Unless we get that fixed, it’s going to hang over Canada’s head, and I don’t want that. And at the same time, I don’t want other people to have to go through this.”

Now, he and several other Canadian families have launched a Charter challenge, and are calling on the current federal Liberal government to change the rules.

“The law is discriminatory,” said Sujit Choudhry, a Toronto-based constitutional lawyer representing the families in the Charter challenge.

According to Choudhry’s research, there are 173,000 Canadian citizens living in Canada who were born abroad to other Canadian citizens. He said those people should have the right to start families abroad and give their children Canadian citizenship just as Canadians born in the country can. Choudhry said the current citizenship law is far too broad, causing families to fall through the cracks of bureaucracy.

“There are many other ways for the government to reinforce the value of Canadian citizenship and address the problem of indefinite generations of Canadians passing on citizenship abroad, without using such a blunt instrument,” said Choudhry.

When Chandler moved back to Canada in 2017, his wife and kids stayed behind in China. They were reunited in B.C. more than a year later, after the sponsorship process was approved and his children arrived in Canada as immigrants. In that year, all Chandler could do was keep in touch through video calls.

“It was absolutely difficult. As a parent, you want to be there for your kids. You want to be there to guide them, to educate them, to play with them,” Chandler said.

Just over three years since his kids arrived in Canada, one of them has been granted citizenship. Still, Chandler says, government red tape should never have got in the way of his role as a father. He hopes the Charter challenge will be successful, so no other Canadian families abroad find themselves in the same predicament.

Source: ‘Lost Canadians’ case challenges ‘discriminatory’ citizenship law | CTV News

Filed under Citizenship Tagged with , ,

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

Filed under Citizenship Tagged with , , ,

← Older posts