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

2024/05/24 Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

According to the proposed amendment to the citizenship law, parents born abroad who have or adopt children also born outside Canada will need to have spent at least 1,095 cumulative days of physical presence in Canada prior to the birth or adoption of their child to pass on citizenship.

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

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

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

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

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

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

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

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

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

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

The press backgrounder:

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

From: Immigration, Refugees and Citizenship Canada

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

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

On December 19, 2023, the Ontario Superior Court of Justice declared that the first-generation limit for those born abroad is unconstitutional. The Government of Canada did not appeal the ruling because we agree that the law has unacceptable consequences for Canadians whose children were born outside the country.

The government is introducing legislation to make the citizenship process as fair and transparent as possible. Bill C-71 would

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

Substantial connection test

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

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

Lost Canadians

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

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

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

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Liberals, NDP urge Conservatives not to stall citizenship rights for ‘lost Canadians’

2023/11/16 Leave a comment

The original bill, S-245, focused on the narrow remaining group and small number of “lost Canadians”, born between 1977 and 1981 who failed to reaffirm their citizenship by the age of 28.

The NDP and Liberals abused the regular process by expanding to the scope to essentially gut the first generation cut-off, without the committee being able to go through the normal review process for effectively was a new bill, with far vaster implications for citizenship given the larger number of people affected.

The Conservatives are right to engage in delaying tactics on process as well as substantive grounds given that the government and the NDP initiated “playing political games” by using this backdoor shortcut:

But the NDP’s immigration critic Jenny Kwan accused the Conservatives of stalling its progress and “playing petty political games,” including filibustering debate at committee, to reduce its chances of becoming law.

She accused the sponsor of the Senate bill in the Commons, Conservative MP Jasraj Singh Hallan, of slowing the bill’s passage in the House by twice switching its scheduled third reading debate with another bill. Mr. Hallan and Tom Kmiec, the Conservative immigration critic, would not comment.

“Canada needs to fix the lost Canadians issue once and for all. The Conservatives were wrong to strip the right of parents to pass on their Canadian citizenship to their second-generation-born-abroad children 14 years ago,” she said. “In the case of William and Jack Cowling, it means they do not have the legal status to work in Canada and the family farm that has been in their family for six generations is now in jeopardy.”

Source: Liberals, NDP urge Conservatives not to stall citizenship rights for ‘lost Canadians’

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Can new legislation help ‘Lost Canadians’ be found again?

2022/09/27 Leave a comment

Disappointing article on S-245 and “lost Canadians” that essentially uncritically take the position of Don Chapman and his assertion that “thousands” have lost their citizenship when the data does not support that and that the vast majority of cases were addressed in previous legislation.

S-245 addresses a gap: “Bill C-37 of 2008, which repealed the age-28 provision and grandfathered all those Canadians who had not yet turned 28 to be included in the policy change, left out a small group of Canadians who had already turned 28, specifically those born in the 50-month window between February 15, 1977, to April 16, 1981. This small cohort of lost Canadians is the group for whom this bill was brought forward in this Parliament once again.”

At a minimum, the CBC should have noted this rather than just taking Chapman’s statement at face value. CBC could also have asked CBC for data on the special procedures for persons caught in this situation (the data that I have seen on requests for proofs of citizenship indicates that the numbers of persons for which this is an issue has been consistently overstated).

There is, of course, the broader issue of the first generation cut-off where again, CBC should have provided more context for that decision (e.g., Lebanese Cdn evacuation of 2006 and the number of evacuees who had minimal to no connection to Canada).

Future stories on S-245 should address this imbalance by including outside experts, whether legal, academic or former citizenship officials, and ensure a diversity of views.

And articles need to be more data and evidence-driven, rather than relying on personal stories and advocates, a tendency that CBC appears to be increasingly relying upon (have provided these comments to CBC and will see if any substantive reaction):

When Pete Giesbrecht was summoned to his local police station on Halloween 2015, he had no idea he was 30 days away from being deported.

His crime? He had not reaffirmed his Canadian citizenship before the age of 28 under a complicated, confusing and not well publicized section of the Citizenship Act.

“They said, ‘No, actually, you have 30 days to leave the country. And if you do not leave willingly, we will fly you out with bracelets and all,’ ” Giesbrecht recalled recently from his home in southern Manitoba.

He’s one of thousands of so-called “Lost Canadians” — people who, because of where and when they were born, are caught up in confusing sections of the Citizenship Act. It can result in a loss of citizenship that forces them to leave Canada for countries they’ve never really known. Others become stateless.

The House of Commons will vote on new legislation this fall meant to solve the problem faced by Giesbrecht, although it doesn’t address a different issue affecting second-generation Canadians born abroad.

Cut off from Canada at age 28

Giesbrecht hopes the changes are passed — he and his family felt a mix of disbelief and anger over his impending deportation.

“I had carried a citizenship for 29 years. So now to find out that that was done didn’t mean anything. That was a bit of a shock,” he said.

At the time, Giesbrecht was a commercial truck driver living near Winkler, Man. He crossed the border more than 100 times a year for work.

He had a Canadian passport, which he received before turning 28, but let it lapse because he had a FAST card, which certified he’d been pre-cleared to cross the U.S.-Canada border.

His case was flagged when he re-applied for the card in August 2015.

Since 1977, second-generation Canadians born abroad had an automatic right to citizenship, but those children had to meet certain conditions and apply to retain their citizenship by the time they turned 28. If they didn’t, they automatically and unknowingly lost citizenship.

Legislative amendments in 2009 were supposed to fix that, but the changes didn’t apply to everyone and created new problems for others.

Bill C-37 introduced a rule limiting citizenship by descent to the first generation born abroad. People born abroad in subsequent generations now have to become immigrants, or in some cases they can apply for a grant of citizenship, which can take years, and there’s no guarantee they’ll be accepted.

The changes only affected people who had not yet turned 28 and didn’t help anyone who’d already lost citizenship.

That’s where Giesbrecht got caught — he was born on Aug. 11, 1979, in Mexico. His parents were Canadian, but they were born in Mexico to Mennonites who had moved there to have less government interference in their lives. However, when he was seven, his family moved back to Manitoba near where his Canadian grandparents were born.

Don Chapman, head of the Lost Canadians Society in B.C., says the problem was compounded because those affected weren’t told about the retention requirement.

“Here’s the problem: He got a citizenship certificate. There was no mention on that citizenship certificate that he had to reaffirm,” Chapman said.

New legislation aims to fix age-28 rule

New legislation coming before Parliament this fall is meant to reinstate those affected by the age-28 rule who weren’t covered by Bill C-37.

Bill S-245 has already passed in the Senate and passed first reading in the House of Commons before it recessed for the summer. If it becomes law, it will eliminate the requirement for people to reaffirm their citizenship by age 28. Those affected would be considered Canadian back to their dates of birth.

“These are individuals who were born to Canadian parents and who only know Canada as their country,” said Sen. Yonah Martin, who represents British Columbia and is currently the deputy leader of the opposition in the Senate. She introduced Bill S-245.

“They’re taxpayers. They had lived their lives as Canadians until this age-28 rule caught up to them because it wasn’t clearly communicated.”

Giesbrecht’s Canadian-born wife started the process to sponsor him for citizenship. As a permanent resident, he had to prove a long-time connection to Canada. He’d spent thousands on lawyers when he heard about Chapman and the Lost Canadians Society from other Mennonites going through the same process.

Chapman started advocating on his behalf and on Oct. 17, 2017, Giesbrecht received his Canadian citizenship — for a second time.

“It means security. It means a future. It means hope for the children and a place that we are free,” he said.

Pete Giesbrecht was told he had 30 days to leave the country after he unknowingly lost his Canadian citizenship due to a problem with the Citizenship Act.

Giesbrecht knows of others he says are afraid to come forward, worried they’ll be deported and lose everything.

“They have a life. They also have families. They have work. They have to give that all up,” he said. “That’s a very risky, very difficult thing to do.”

Chapman says many Lost Canadians don’t find out about their status until they apply for a passport, move provinces and apply for health benefits or a driver’s licence, or are convicted of a crime.

“Pete, he’s one of the lucky ones,” Chapman said.

“There are thousands of people, actually many thousands of people in Canada, that are affected and might still not know it. And this [legislation] will make it so they are whole, as though they never lost their citizenship.”

New rule created new Lost Canadians

But, there’s another category of Lost Canadians the new legislation won’t address.

The “second-generation cut-off” is a rule under Bill C-37 that permanently denies the first generation born abroad the ability to automatically pass on citizenship to their children if they are also born outside Canada.

It also eliminated the ability to gain citizenship by showing a “substantial connection” to Canada. Now, those second-generation children have to be sponsored by their parents to come to Canada as permanent residents, then apply for citizenship like any other immigrant.

Critics say it has created two classes of Canadian citizenship — one for Canadians born in Canada and one for those born abroad.

“What’s discriminatory about the Citizenship Act is that there is no way that people can rid themselves of this second class status no matter how close and deep their ties to Canada are,” said Sujit Choudhry, a constitutional lawyer in Toronto representing seven families living in Canada, Dubai, Hong Kong, Japan and the United States, who are all affected by this rule.

Choudhry filed a constitutional challenge in December 2021, asking that his clients’ children be granted citizenship and that this section of the Citizenship Act be struck down. The case will be before court in April 2023.

‘I’m not Canadian enough’

Victoria Maruyama is angry about the way her family has been treated because of where she and her children were born.

“I grew up [in Canada] like everybody else. Why am I being treated this way? Why are you treating my children this way? And why can’t we just come home like everybody else?” Maruyama, one of Choudhary’s clients, asked in a recent interview from her home in Nagoya, Japan.

Maruyama was born in Hong Kong and received Canadian citizenship through her father, who had previously immigrated from Vietnam. When she was a toddler, the family returned to Edmonton, where she attended school. She later got a degree at the University of British Columbia.

When she was 22, she moved to Japan temporarily to teach English and met her husband, a Japanese national. They married in 2007.

She was seven months pregnant with their first child when Bill C-37 took away her right to pass on citizenship to her children unless they were born in Canada.

“The shock of it, like, ‘Oh my God, I’m not Canadian enough,’ ” Maruyama said.

Their second child was also born in Japan two years later. The family has moved back to Edmonton from Japan several times so she could apply for citizenship for her children and sponsor them as immigrants.

All of those applications have been denied.

“Their grandparents helped build the stupid railroad … It makes me angry. Really angry.– Victoria Maruyama, whose children aren’t considered Canadian because they, and Maruyama, were born abroad”

A 2018 letter from Immigration, Refugees and Citizenship Canada said the children were rejected because “they are not stateless, will not face special and unusual hardship if you are not granted Canadian citizenship and you have not provided services of exceptional value to Canada.”

They returned to Japan in July 2019 because her husband had a job offer, but she says the family would like to live in a more multicultural and accepting society and be closer to her aging parents.

The children are “very aware that Canada is rejecting them,” Maruyama said. “[But] they feel Canadian. It’s just part of their identity.”

“Their grandparents helped build the stupid railroad … It makes me angry. Really angry.”

Stateless babies

In an even more extreme case, if a Canadian born abroad has a baby in a country that doesn’t provide citizenship at birth, that child is stateless.

This means no country is responsible for their legal protection and they can’t get a passport. They have no right to vote and they often lack access to education, employment, health care, registration of birth, marriage or death and property rights.

That’s the situation for Gregory Burgess, who was born in the U.S. to an American father and Canadian mother. He got citizenship through his mother, grew up and went to school in Alberta where his ancestors settled after fleeing what is now Ukraine many generations ago.

“It’s basically bureaucratic terrorism … I believe Canada is better than this.– Gregory Burgess, on the various applications needed to get his infant son Canadian citizenship”

He and his wife, a Russian citizen, are on work visas in Hong Kong. Their son was born there last October. Since neither parent is a citizen or permanent resident of Hong Kong, their son has no status.

“The children are the victims,” Burgess said recently.

Burgess says because he was born outside Canada — and can’t automatically give his child Canadian citizenship — he was told by an IRCC agent that his wife should apply for Russian citizenship for the baby. If that is rejected, he can then go through the process with Canada. However, there are no guarantees it would be successful.

However, Burgess doesn’t want his son to have Russian citizenship; he wants him to be Canadian.

“It’s basically bureaucratic terrorism. It’s horrible. It’s adversarial,” he said of the various applications he’s already made on behalf of both his son and his wife. “I believe Canada is better than this.”

Burgess is one of Choudhry’s clients and part of the constitutional challenge. The lawyer says Canada could fix the family’s situation if it would add back the ability for a second-generation child born abroad to prove a “substantial connection” to the country.

“This law creates hierarchies of Canadians based on where they were born,” Choudhry said.

In the meantime, he said Citizenship and Immigration Minister Sean Fraser could grant Burgess’s son citizenship by acknowledging the “special and unusual hardship” the family is facing.

CBC requested an interview with Fraser several times, but a spokesperson said he was unavailable.

However, in a statement, his department said there is a “discretionary mechanism” for anyone who doesn’t qualify for citizenship, including a special process if someone is stateless. The department said those cases are assessed individually.

Source: Can new legislation help ‘Lost Canadians’ be found again?

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