Trump’s halting of asylum claims prompts fresh calls to suspend Safe Third Country Agreement

2025/12/04 Leave a comment

No surprise. Reactions below:

…But some experts have warned that suspending the agreement could open the door to an unknown number of asylum claimants who are currently ineligible for protection in Canada, at a time when the federal government is striving to reduce immigration because of pressure on housing.

Fen Hampson, president of the World Refugee & Migration Council and a professor of international affairs at Carleton University, said Mr. Trump’s decision “puts our government on the horns of a real dilemma.”

“The U.S is no longer providing equivalent protection and Canada faces a significant moral and potentially legal obligation to offer asylum to those who cannot get protection in the U.S.,” he said.

“The Canadian government must now decide whether it wishes to exercise its authority to suspend the agreement, create a broader exemption or stick with the status quo,” he said in an e-mail. “With tens of thousands of asylum claims still pending in Canada and fears that suspending the [agreement] could lead to increased irregular border crossing, the government may prefer to do nothing.” …

The Canadian Association of Refugee Lawyers and the South Asian Legal Clinic of Ontario have launched a judicial review of the Safe Third Country Agreement, seeking to declare it invalid. Maureen Silcoff, a lawyer who is representing plaintiffs in that case with lawyer Sujit Choudhry, said the agreement requires countries to follow the UN Refugee Convention, but the U.S. has chosen to stop adjudicating asylum claims. 

“The agreement itself anticipated that a situation may arise that requires a suspension,” Ms. Silcoff said.

“That day has arrived. The basis for the agreement has evaporated. It was predicated on the U.S. having a functional asylum system. The U.S. suspension of asylum determination means that the very foundation of the agreement has disappeared.”…

Lawyer James Yousif, who was policy director to former immigration minister Jason Kenney, said the U.S. government’s decision to halt all refugee claims would likely lead the Federal Court to strike down the Safe Third Country Agreement, which requires what he describes as a “functioning” asylum system.

“The extent of a President’s ability to halt asylum without legislation is unclear. But if asylum is halted and deportations begin, the consequences for Canada will be immediate,” he wrote in an e-mail.

If the pact is struck down, Mr. Yousif said, that would allow millions of people currently in the U.S. who are covered by the Safe Third Country Agreement to apply for asylum here.

“That would represent an existential threat to Canada’s immigration system,” he said.

Sharry Aiken, a professor at Queen’s University specializing in immigration and refugee law, said Mr. Trump’s latest edict on halting asylum claims is “the nail in the coffin” of the Safe Third Country Agreement.

She said other anti-migrant policies he has enacted should have already prompted the Canadian government to revisit whether it is still valid.

“If we had any doubts before, we shouldn’t now,” she said. “The agreement is predicated on responsibility sharing and that people have access to asylum in the U.S.”

Prof. Aiken predicted suspending the agreement is not going to lead to Mr. Trump being “upset with Canada” or a big influx of asylum seekers coming from the U.S.

“If necessary, we need to ensure that the IRB [Immigration and Refugee Board] is adequately resourced to deal with a potential increase in the number of claims,” she said.

Source: Trump’s halting of asylum claims prompts fresh calls to suspend Safe Third Country Agreement

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Senate urged to give children adopted from overseas the same citizenship rights as those born in Canada 

2025/11/17 Leave a comment

Perhaps I am a bit thick, but parents of foreign-born adoptees have to commit to raising their adopted child in Canada and thus would most likely meet the residency requirement of 1,095 days within a five-year period.  

The direct route to citizenship for adoptees was in response to parental pressure to have a faster route than PR sponsorship. But making that choice meant the adopted child was considered the first generation born abroad, like any naturally born child born abroad.

Appears more a matter of identity and convenience rather than fundamental practicalities to me:

….Two lawyers specializing in citizenship have submitted a briefing paper to the Senate committee, which will consider Bill C-3 this week. They argue that the bill should exempt children adopted from abroad from the substantial-connection test. 

The paper’s co-author, Toronto lawyer Sujit Choudhry, who filed the successful constitutional challenge to the Citizenship Act on behalf of Lost Canadian clients, said it is “deeply unfair to the families of these children to treat them differently than children adopted domestically.”

“It also violates Canada’s international treaty obligations and the Charter,” he said in an e-mail. 

Its other author, immigration lawyer Maureen Silcoff, suggested that unless Immigration, Refugees and Citizenship Canada addresses the issue it could face a legal challenge. 

“IRCC is fully aware of the issue. Adoptive parents and MPs have been advocating on their behalf for years. We do not understand their reluctance to address this issue at this moment, when C-3 is before Parliament. Amending C-3 would avoid unnecessary litigation.”

Don Chapman, a leading advocate for Lost Canadians, who is giving evidence to the Senate committee this week, said, “I don’t want to leave any child behind.” 

But he expressed concern that amending the bill in the Senate may lead to it being held up when it returns to the Commons. …

Source: Senate urged to give children adopted from overseas the same citizenship rights as those born in Canada

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Air Canada says she was being ‘loud, demanding and unruly.’ She says she was being stereotyped. Here’s what the human rights tribunal heard

2025/08/06 2 Comments

Will be interesting to see how the Tribunal rules. Incident dates from 2018 and don’t know whether the delay is normal for the Tribunal. As a business class passenger, she would have access to shorter check-in and boarding lines. As an DEI academic and activist, Francis would likely be more aware and sensitive to perceived discrimination and stereotypes:

It’s not an uncommon scene at any busy airport: A passenger needs help and approaches an airline agent who may come across as rude.

But what happened to a Jamaican Canadian at Vancouver International Airport on March 1, 2018 — as described last week over a five-day hearing at the Canadian Human Rights Tribunal — has highlighted the stark contrast in how a Black woman and airline staff viewed their encounter seven years ago.

The case of alleged discrimination for “Flying while Black” will test how far the Canadian Human Rights Act can go in awarding damages to air travellers for discrimination. Claims against carriers are governed by the Montreal Convention, an international pact that’s a standard liability regime for death and injury, damage or loss of baggage and flight delay only.

Business-class passenger June Francis had had her knees replaced six months before a trip to Toronto. She approached an Air Canada check-in agent for help amid an exceptionally long lineup, the tribunal heard.

She testified that the agent cut her off before she could request an accommodation, yelled at her and told her to “get in line.” Unsuccessful in getting the agent’s name or identification number, she took photos of the agent with her cellphone for identification so she could complain to Air Canada.

Francis, who is five-foot-10, was described as “loud,” “demanding” and “unruly,” the tribunal heard from Air Canada. A supervisor and security guard were dispatched and demanded that Francis delete the photos, or else she would be refused boarding.

Francis testified that the supervisor said to her, “I can see why you are a problem. You do not take directions. I can see why you were treated that way.” 

“It was a very demeaning comment,” Francis said. “It suggested that I needed directions from people to know how to behave.”

The now 70-year-old woman — a Simon Fraser University business professor and a King Charles III Coronation Medal recipient for her anti-racism work — said she felt afraid when she saw the airport security guard.

“I was shaken,” she testified. “I had done nothing wrong. I am a Black woman … I know what has happened from my community when law enforcement arrives.”

On the witness stand, the agent, later identified as Betty Liao, described Francis as rude and aggressive, but denied yelling at her to get in line or that the complainant ever mentioned her physical needs. She also testified she did not remember if Francis asked for her name or identification number to file a complaint, or if she refused. 

Liao did remember telling Francis to stop taking photos of her, and told the tribunal she felt unsafe. “This is too intimidating,” testified Liao, who is five feet tall. “And I have no right to say no?”

In laying out the complaint at the hearing, Francis’s lawyer Sujit Choudhry said this is the first case of flying while Black to reach a full hearing before the tribunal.

“Professor Francis, a grandmother, (then) 62-year-old, recovering from a knee surgery, posed no threat,” he told the tribunal….

Source: Air Canada says she was being ‘loud, demanding and unruly.’ She says she was being stereotyped. Here’s what the human rights tribunal heard



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Immigration advocates take Ottawa to court over refugee treaty with U.S. 

2025/05/27 Leave a comment

As was expected and they have a case, no matter how inconvenient, as it gets stronger day-by-day with clear incidents of USA and ICE over-reach and undermining protections:

The federal government is facing a legal challenge arguing that its oversight of a two-decade-old refugee treaty with the United States is “fundamentally flawed.”

The bilateral agreement is premised on both countries being safe for asylum seekers. It prevents refugee claimants passing through the U.S. from seeking protection in Canada and vice versa. 

Canada is legally required to regularly review its neighbour’s human-rights record and refugee protections as part of the treaty, the Safe Third Country Agreement, or STCA. Ottawa has not publicized its findings since 2009. 

In January, U.S. President Donald Trump ordered a sweeping immigration crackdown that has heightened asylum seekers’ risk of detention and deportation. Immigration rights groups have asserted that migrants and asylum seekers have been held in “secret” detention at the northern border. 

In an application for judicial review, the Canadian Association of Refugee Lawyers (CARL) and the South Asian Legal Clinic of Ontario (SALCO) argue that the lack of publicly available information about Ottawa‘s refugee monitoring process shields the government from accountability − and could violate the Constitution.

“This is so crucial because what we see happening at the Canada-U.S. border is quite troubling,” said lawyer Maureen Silcoff, who is representing CARL in the legal challenge.

Advocates in Canada have long maintained that cracks in American refugee protections leave asylum seekers at risk, raising concerns about the legality of the STCA treaty. Executive orders issued by the U.S. President in January, which initiated drastic immigration changes, have heightened fears over detention conditions for asylum seekers and rapid deportation without due process. 

Sujit Choudhry, who is representing SALCO in the case, said that without detailed evidence of how Ottawa determines its neighbour is safe for asylum seekers, it is impossible to know if Canada is complying with its legal obligations to refugee claimants.

An inaccurate designation – one that results in refugee claimants at the Canadian border being returned to the U.S. and then deported to a country where they would face torture – would violate the Canadian Constitution, he added. …

Source: Immigration advocates take Ottawa to court over refugee treaty with U.S.

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‘An ordeal that doesn’t end’: Lost Canadians’ citizenship at risk with Parliament suspended

2025/01/14 Leave a comment

More on C-71 and impact of prorogation:

Shortly after Prime Minister Justin Trudeau suspended Parliament on Monday, Carol Sutherland-Brown’s phone started ringing.

The calls were coming from other people whose families have been caught up in the longstanding “lost Canadians” fiasco and are concerned about the fate of the highly anticipated citizenship reforms proposed in Bill C-71.

The Ottawa grandmother and others have been fighting to reclaim the citizenship rights taken away from their families under Canada’s current second-generation cut-off rule, which denies automatic citizenship to children born abroad because their parents also happened to be born overseas.

More than a year ago, an Ontario court found the law unconstitutional and gave the federal government six months to change it to make it Charter-compliant. The Liberal government introduced Bill C-71 to fix the problem, but the deadline has already been extended three times, to March 19.

This legislation would automatically confer Canadian citizenship on people born abroad before the changes are enacted to a Canadian parent who was also born abroad. Anyone born outside the country subsequently would need to prove their foreign-born Canadian parent had a “substantial connection” with Canada by meeting a residency requirement.

With the prorogation of Parliament until March 24, the bill has now died on the order paper, and a new one would have to be tabled when the House returns. It would be subject to the legislative process from scratch again.

The lost Canadians’ families fear that if a confidence vote follows, as expected, it will topple the Liberals and usher in a Conservative government. It was a Conservative government that brought in the second-generation citizenship cut-off in 2009 to begin with.

“This has been an ordeal for me and for the other families, an ordeal that doesn’t end,” said Sutherland-Brown. Her daughter was born in Saudi Arabia, and two grandchildren were born in the U.K. As a result, the grandchildren lost their Canadian citizenship rights by descent. “We don’t know what a new government will do.”

Lawyer Sujit Choudhry, who represented lost Canadians in the successful court challenge, said the government has two options: to go before the court for another extension or let the citizenship law be declared unconstitutional.

However, both are problematic.

While there have been similar precedents where the government was granted extensions to comply with court orders, he said the requests were made because Parliament was dissolved and an election was called, and not due to prorogation.

“The question in March will be whether this is the time for this to come to an end , or whether, given the unique political circumstances, some more time should be given,” said Choudhry. “What will the government say in court? Well, they’d say a dissolution is imminent, but it hasn’t happened yet.” 

If Ottawa lets the deadline lapse and the two-generation cut-off is thus voided, affected lost Canadians could just come reclaim their citizenship. If the court cuts the government some slack and grants another extension in light of the circumstances, the uncertainty will continue.

“During that extension period, we could very well be in an election, in which case, no bills could be passed,” said MP Jenny Kwan, immigration critic of the opposition NDP, and a staunch supporter of the bill.

“After the election, whoever forms government would have to take further actions to be compliant with the court decision. We have to remember that it was the Conservatives who brought in this unconstitutional provision 15 years ago.”

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 against Hezbollah in 2006.

The $85-million price tag of the evacuation effort sparked a debate over “Canadians of convenience.” The government abolished the 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. 

Tunisian-born Majda Dabaghi, whose two children were born in France and hence can’t be Canadian citizens by descent, is concerned about a Conservative return to power given the party’s efforts to block C-71 and a similar bill previously. (The Conservative party didn’t respond to a request for comment.)

The cut-off rule “was a racist response to the evacuation of dual nationals out of Lebanon,” said Dabaghi, who has continued to vote in Canadian elections after she left Canada in 2007 for a job in international law in the U.K. 

“They have done everything humanly possible to filibuster the passing of the legislation, both in the form of Bill C-71 and earlier in the form of Bill S-245. They have put their own politics and political gamesmanship above sound policy, people’s lives and our Constitution.”

Calling Bill C-71 “a crucial piece of legislation,” Immigration Minister Marc Miller also blamed the Conservatives for stalling it. While his office would not say if the government will request that the court grant another extension, it said “Minister Miller is confident that a Liberal government would reintroduce this important bill to the House once resumed.”

Although Christina Matula’s two children — born in England and Hong Kong — are Canadian citizens, she said she’s fighting for their rights to explore the world and work abroad without having to worry about where to start a family.

And she said both the Liberals and Conservatives are at fault because the former also failed to prioritize and expedite the introduction and passing of the bill despite the court order in December 2023.

Her children, now 17 and 14, have attended Canadian international schools, participated in Terry Fox runs and visited family in Canada every summer and Christmas, said Matula, whose family now lives in Finland.

“My children are Canadian by descent and have strong ties to Canada,” she said “I want them to have clear and fair criteria to prove their connection to Canada, so they can have the same rights as Canadian-born and naturalized citizens.”

Source: ‘An ordeal that doesn’t end’: Lost Canadians’ citizenship at risk with Parliament suspended

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

2024/08/05 Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Court grants Trudeau government extension to fix ‘lost Canadians’ citizenship rules — with a catch (3 slightly different reports)

2024/06/22 Leave a comment

Appears that Justice Akbarali is being activist, not only in her interpretation citizenship rights but also with respect to setting an unreasonably short timeline for compliance.

She certainly would know that developing, passing and implementing legislation takes longer than six months and a month extension, over the summer months when Parliament sitting, is meaningless. Given the possibly large numbers involved and the policy and operational implications (judges tend to underestimate the latter), thorough review will be needed.

The numbers we have are provided that the advocates indicate a likely upper limit of 1.5 million, not negligible in terms of impacts. It is striking that IRCC has not yet provided its estimates of the number of persons affected, including those of women first-generation born abroad of child bearing age (estimates of the total number of expatriates are imprecise with StatsCan settling on 4 million).

Of course, like so many of these initiatives, there is an assumption than many, if not most, “lost Canadians” want to be “found.” Whenever the government makes a change to address “lost Canadians” or expand voting rights to expatriates, the actual numbers are relatively small as seen through citizenship proofs and expatriate voting rights.

More to come over coming months:

Starting with The Star:

The federal government has been given a last-minute reprieve to roll out a new law to restore the citizenship rights of “lost Canadians” born outside Canada.

That’s despite its failure to have a proper plan in place to address urgent cases affected by the delay.

Six months ago, Ottawa was ordered by an Ontario court to repeal what’s known as the “second-generation cut-off” rule and amend the current Citizenship Act by June 20, after a judge ruled it’s unconstitutional for Canada to deny automatic citizenship to children born abroad because their parents also happened to be born overseas.

On Wednesday, at the eleventh hour, the government pleaded for a six-month extension of the deadline, arguing that it had already introduced an amendment bill, C-71, in May to confer citizenship to those affected by the current law and address the legislative gaps to ensure others won’t fall through the cracks in the future.

Officials contended that the legislative process takes time and it is a “complex undertaking” that would involve preparing training materials for immigration staff, forms, website pages and co-ordination, among other things.

However, Judge Jasmine Akbarali only agreed to grant the government seven weeks’ relief, until she can reassess the progress made to create an interim plan to handle urgent citizenship requests by lost Canadians and to push for the passage of Bill C-71 by Dec. 19.

In reaching her decision, the judge said she had to balance the government’s need to properly fix the problems and the hardship affected Canadians will continue to suffer as a result of the delay.

“While it has been working on the legislation, the respondent has not proceeded with any sense of urgency to rectify the unconstitutional aspects of the legislation,” Akbarali in her decision released Wednesday evening. 

“It does not propose an effective mechanism to address the hardship that a further six-month suspension will cause to people whose constitutional rights are being violated day after day.”

An estimated 170,000 women in the first generation born abroad, who are in the age range at which people often choose to start families, are still being affected by the current law when making those important life decisions, the judge noted.

In chiding the government for its tardiness, the court referred to a couple of other bills that officials successfully pushed through recently, including Bill C-62, an Act respecting medical assistance in dying, which went from first reading to royal assent within the month of February.

“There is no explanation as to why this bill is languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire,” said Akbarali.

“The unconstitutional law remains on the books, and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved.”

She said it’s insufficient for the government to grant citizenship to lost Canadians at the immigration minister’s discretion, as proposed, during the interim before the amended bill is enacted, supposedly by Dec. 19, because that process is “ineffective, and also poorly communicated.”

Toronto lawyer Sujit Choudhry, who represented the six lost Canadian families in the constitutional challenge, said his clients are pleased with the court decision, which also included granting three of the families the sought-after citizenship and $35,064.47 in partial indemnity costs.

“They now have the full benefit of the court’s judgment,” Choudhry said in an interview. “They are not second-class citizens anymore. It was very important for them that there be accountability. They led this fight not just for themselves, but for everyone like them.”

The parties are to reconvene on Aug. 1 to hear the government’s updates on its interim plan to deal with pending citizenship applications of lost Canadians and steps to pass Bill C-71 by the proposed extended deadline. The court will then make a final decision on the full extension to Dec. 19.

The “second generation” cut-off against Canadians born abroad was first introduced by the then Conservative government, which also removed the so-called “connection test” for these descendants to reclaim citizenship based on their ties to Canada. Despite several amendments to the act, there remain many lost Canadians.

Source: Court grants Trudeau government extension to fix ‘lost Canadians’ citizenship rules — with a catch

CBC:

So-called “lost Canadians” will have to wait longer to obtain their right to citizenship now that a court has granted the federal government more time to fix legislation it ruled was unconstitutional.

The courts initially gave the federal government until today to replace legislation that prevents Canadians born abroad from passing on their citizenship to children also born abroad.

In May, the Liberals introduced Bill C-71, which introduced sweeping changes to Canada’s citizenship laws. The government says the legislation addresses the concerns of the court.

But the Liberals did not get the bill through the House of Commons before it rose for the summer on Wednesday. MPs will not return to the Commons until mid-September.

In handing down the extension to Aug. 9 on Wednesday, Ontario Superior Court Justice Jasmine Akbarali slammed the pace of the legislation’s passage through the House. She noted that other pieces of government legislation moved swiftly to the Senate, while a citizenship bill responding to the violation of a legal right still remains in its early stages.

“I am troubled by the fact that, after taking over five months to introduce Bill C-71, in the almost-month that has passed since then, the bill has not reached second reading,” Akbarali said.

“There is no explanation as to why this bill has been languishing since May 23, 2024, when the government was aware of the date on which the suspended declaration of invalidity was set to expire.”

In the meantime, Akbarali added, Canadians’ rights are being violated.

“The unconstitutional law remains on the books and continues to interfere with the Charter rights of Canadians to make important decisions about where to live, and where and when to have children, all of which have implications for the financial, physical and emotional health of the people involved,” the justice wrote.

Akbarali said 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 her 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.”

In a previous ruling, Akbarali said the current law forces women in their reproductive years to choose between travel, study and career opportunities abroad, and passing citizenship on to their children.

Thousands of so-called “Lost Canadians” have lost their citizenship, and in some cases been deported, due to a complicated section of the Citizenship Act. Now, the federal government is trying to pass new legislation to prevent people from falling through the cracks.

In December, Ontario’s Superior Court struck down Canada’s old citizenship law, Bill C-37, which prevented parents born outside Canada from passing on their citizenship to children also born abroad. The court ruled that it violated their rights under the Canadian Charter of Rights and Freedoms. It gave the government six months to enact Charter-compliant legislation.

The Liberal government said in May its legislation to respond to the judgment, Bill C-71, would fix those problems and automatically confer citizenship rights on children born since 2009 once enacted.

In granting the extension, Justice Akbarali said the government would only have until Aug. 1 to present arguments on why she should consider another extension until Dec. 19. The judge ordered the government to file a plan to address the hardship experienced by parents under the existing law during the extended period and “ideally” file a report on the steps required to get the bill passed before mid-December.

Sujit Choudhry, the lawyer who fought the constitutional case for the families, called for these conditions. Choudhry estimates that the current law violates the rights of at least 1.48 million Canadians at home and living abroad.

Source: Court grants government another extension to fix unconstitutional citizenship law

CTV:

An unknown number of young people born abroad to Canadian parents could wait until at least December to be eligible for citizenship.

Last year, the Ontario Superior Court ordered Ottawa to reverse restrictions imposed by the previous Conservative government in 2009, which limited citizenship by descent to children born in Canada if their Canadian parents were born outside the country.

The court declared the 2009 change unconstitutional for creating two classes of citizens and gave Ottawa until June 19 to implement a solution. On Wednesday, the court granted the government’s request to extend that deadline to Aug. 9.

In a statement to CTVNews.ca, an Immigration, Refugees and Citizenship Canada (IRCC) spokesperson explained there were conditions attached to the new Aug. 9 deadline.

“The Judge also ordered a hearing on August 1, 2024 to determine if an extension to December 2024 would be appropriate,” the IRCC spokesperson told CTVNews.ca. “She has asked to be presented prior to the hearing with a report explaining the progress made on Bill C-71 since May 23, 2024 ‘and ideally, intended next steps to pass the bill by December 19, 2024.'”

Bill C-71(opens in a new tab), An Act to Amend the Citizenship Act, was introduced in late May(opens in a new tab). If passed, citizenship would automatically be granted to anyone affected by the 2009 change. Going forward, Canadian citizens who were born abroad will also have to spend at least three years in the country before a foreign birth or adoption to be able to pass on citizenship rights to their children.

“There’s no doubt that Canadian citizenship is highly valued and recognized around the world,” Immigration Minister Marc Miller previously said. “We want citizenship to be fair, accessible, with clear and transparent rules.”

With the House of Commons adjourning for the summer on Wednesday(opens in a new tab), the bill is expected to remain on hold until members of Parliament resume legislative business in mid-September, likely necessitating another court extension.

“Many individuals who considered themselves Canadian were excluded from citizenship simply due to their place of birth,” Toronto-based immigration consultant Al Parsai told CTVNews.ca. “By declaring it unconstitutional, the court recognized the adverse impact on Canadian families and their ties to their heritage.”

The government has no idea how many so-called “Lost Canadians” are impacted. All are aged 15 and younger.

NDP immigration critic Jenny Kwan helped draft the bill alongside the Liberals. She attempted to push it through by asking for unanimous consent from MPs, but Conservatives voted against it twice.

“I’ve talked to family members who’ve been separated from their loved ones because of this unjust law that Conservatives brought in 15 years ago,” the Vancouver East NDP MP said last month(opens in a new tab). “I’ve talked to family members where their children are deemed stateless, lost in the system, because of this unjust, punitive, unconstitutional law.”

If the federal government is not given another court extension before Bill C-71 passes, it may be up to the immigration minister himself to decide individual citizenship cases.

“If it doesn’t come through we’re sort of in no man’s land,” Miller said before Wednesday’s court extension. “Basically, it’s my discretion deciding who’s Canadian or not. Obviously, that shouldn’t be up to the discretion of a minister.”

If the bill does pass, anyone affected by the 2009 change would be able to apply online for a Canadian citizenship certificate(opens in a new tab). The government also has a digital tool that can help you find out if you are Canadian(opens in a new tab).

Parsai expects to see a surge in citizenship applications, which could strain government resources.

“The Ontario Superior Court’s ruling in 2023 was a pivotal moment, acknowledging the unfairness of the 2009 policy,” Parsai said. “This change will be immensely positive for Canadians and their families, restoring their sense of belonging and legal recognition.”

Source: Canada’s new citizenship rules for kids born abroad delayed

Filed under C-71, 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

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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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‘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

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