Canadian expatriates are up in arms about the recent amendment to the Citizenship Act, which came into effect on Friday, implementing a "one generation" rule limiting transmission of citizenship by Canadians born or adopted from outside Canada (section 3(3)).
Is this amendment really so terrible? Let's consider a few examples.
Jane Canuck is born in the U.S. of Canadian parents, while her family is living there briefly. When she is a month old, her family returns to Canada, where she grows up and lives.
Under which of the following circumstances will Jane's child be born a Canadian citizen?
(a) Jane moves to England as an adult, where she has a child by her English husband.
(b) Jane is living in Canada with her husband, a landed immigrant. She is scheduled to give birth in Toronto, but at the last minute is diverted to Buffalo because of a hospital bed shortage.
(c) Jane is living in Canada but working temporarily abroad for a Canadian NGO, when she becomes pregnant by her non-Canadian boyfriend. She plans to return to Canada to give birth, but the child is born prematurely, while she is still abroad.
If you answered "none of the above", well done. That's correct: Canadians who acquire citizenship by being born abroad to (or adopted abroad by) Canadian parents cannot pass along their citizenship to their children unless those children are born in Canada – regardless of how many years they live in Canada, the strength of their connection to this country, or the circumstances under which they gave birth to the second generation abroad (aside from military or diplomatic service). In all three scenarios, Jane's child would have to be sponsored by her mother as an immigrant, then be naturalized, in order to acquire Canadian citizenship.
The government insists that the "one generation rule" is merely to prevent indefinite transmission of Canadian citizenship across multiple generations, to people who were neither born nor have ever lived here, and have no connection at all to Canada other than ancestry: according to Citizenship Minister Jason Kenney, "we want to limit it to those people who have some kind of enduring presence or commitment to Canada." Not an unreasonable policy, on its face – but in my view section 3(3) is an ill-thought out way to go about it. I doubt many people would argue that the latter two examples above are the sorts of situations intended to be captured by the rule. Even the result in the first example seems inequitable, given that had Jane been born just a month later her child would automatically be a Canadian citizen.
Now let's consider another example: Sam Yankee is born in Canada of U.S parents, while his family is living here briefly. When he is a month old, his family returns to the U.S., where he grows up and lives, never returning to Canada. Should his children with a non-Canadian partner inherit Canadian citizenship? Under the new rules, they would. (One can understand if Jane, on hearing this, might feel more than a bit annoyed.)
In short, the new rule creates two tiers of citizenship: those who acquire citizenship by being born or naturalized here, regardless of their lack of connection to Canada, automatically pass citizenship to their children. Those who acquire citizenship solely by virtue of being born to (or adopted by) Canadians, however connected to Canada they may be, cannot pass citizenship to their children.
The government was certainly aware of the problem: it was discussed at length in committee, and the Senate committee also highlighted the problem in its report. Even the legislative summary of the bill prepared by the Library of Parliament, somewhat surprisingly, appeared to criticize the amendment – noting in particular the problem of rendering stateless many children born to Canadians abroad:
Bill C-37 cuts off citizenship by descent after the first generation born abroad. [...] The major problem with this approach is that it may result in some people not being Canadian citizens at birth even though they and their parents have a substantial connection with Canada.
A third criticism the bill is likely to attract arises because of the proposed cut-off described above. Under the bill, a person who is the second or subsequent generation born abroad to a Canadian parent may be stateless if he or she does not acquire citizenship of the state of birth, or through his or her other parent. Canada is a contracting state to the United Nations’ Convention on the Reduction of Statelessness. Under article 4 of that Convention, a contracting state is required to grant its nationality to a person not born in the territory of the contracting state, who would otherwise be stateless, if the nationality of one or both of the person’s parents at the time of the person’s birth was that of the contracting state. Such a grant of nationality may be subject to certain stipulated conditions, however. The provision included in Bill C-37 to deal with statelessness is compliant with the Convention, but only minimally so. [emphasis added]
What seems especially unfortunate to me is that there exists another model for addressing this problem, which the government was either unaware of, or chose not to follow. Section 301 of the U.S. Immigration and Nationality Act, 8 U.S.C. 1401 simply imposes a minimum residency requirement on any U.S. citizen parent who has children abroad, whether the U.S. citizen parent was born in the U.S. or not – thus both ensuring that expatriates demonstrate a connection to the U.S., and avoiding the "two-tier citizenship" problem created by the Canadian amendment. Section 301 provides in part as follows:
The following shall be nationals and citizens of the United States at birth [...]
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years [...]
I think one can reasonably debate what should be required to establish a connection to Canada. Perhaps five years is not enough, or the parent should be required to have resided in Canada recently, for example. (Though it's worth noting that the Act requires a permanent resident, to obtain citizenship, to live in Canada for only three years within the four years preceding the application.) Alternatively, perhaps any residency rule alone is too strict, and should provide for other ways to show connection to Canada, depending on the circumstances.
I personally don't have a problem with the principle of drawing a line limiting the transmission of citizenship to subsequent generations lacking any real connection to this country. I do, however, think the approach the government has adopted to do so is quite arbitrary and unfair. The only justification I have heard so far relies on the (relative) simplicity of sponsoring a dependent child to come to Canada as a permanent resident, and the fast-track under section 5(2) of the Act for obtaining citizenship in such cases – an argument that in my view really misses the point. Maybe Slawyers have a better idea?
I am extremely angry about this relegation of my (offshore-born) infant daughter to a second-class citizen status. I would be very interested in participation, on her behalf, in any legal challenge being pursued to this unjust law.
Please advise via this website as to how we may participate as a family in any serious challenge to this law. It sickens me that my daughter's future offspring will be regarded as aliens unless they happen to be born on Canadian soil.
Andrew,
I'm not aware of any pending legal challenges, though with the number of people angry about the changes it would not surprise me were it to happen.
I am aware that there are people, including MPs, advocating further amendments to the Citizenship Act to modify or reverse the "one generation rule". Jim Karygiannis, the Liberal MP for Scarborough-Agincourt, has been one of the more vocal on this issue.
If any Slaw readers are aware of ongoing lobbying efforts or potential legal challenges, please post here and let us know about them.
A bit more information, for Andrew or anyone else who is interested: I have seen reports that Citizenship Minister Jason Kenney is open to reexamining the law, though at present the focus appears to be on foreign adoptees. There is some useful and reasonably well-informed discussion on some of the expat websites, such as the Canadian Expat Association.
An interesting statistic cited by the website above, by the way, is that an estimated 2.7 million Canadians live abroad. With fairly few exceptions (again, diplomats and military), none of these Canadians can vote in federal elections. One wonders whether the government would have designed the "one generation rule" with more care were they concerned about alienating a bloc of voters that, if it were a province, would have the fifth-largest population in Canada. Just a thought.
I have heard about this new bill. I myself am a second generation of Canadian descent. Grandfather born in Canada 1903, Father (first generation Canadian descendant) born in 1950. Both are desceased. I myself born in 1975. I understand that Canada also limited the retroactive provision to those who were born in Canada and living there on January 1st, 1947. I have an uncle born in states in 1941. I found out that this is the only other child from my grandfather. I do believe that Canada was trying to use this bill as a way of "trying to right a wrong", by not making dual citizenship retroactive when it was first allowed. However since The Dominion of Canada was established on July 1st, 1867; should Canada have made citizenship retroactive for those born after July 1st, 1867 and all their descendants who were alive the same day C-37 was passed. Also I should point out that on September 22nd, 1988 Canada allowed Japanese-Canadians who were deported between 1941 and 1946 as well as all of their descendants citizenship, provided that descendants were alive on September 22nd, 1988 regardless if the person deported was alive or not, I point this out since Canadian citizenship did not exists until 1947, therefore I also believe that this creates a contradiction by the Canadian goverment on which Canadians and their descendants they want to give citizenship to. You can feel free to email me at chrisin1975@yahoo.com and tell me your opinion of my post. For those who read my post thank you for you time and I wish you a nice day.
Thank you,
Chris M
Update: NDP MP Olivia Chow has just introduced a private member's bill (Bill C-397) to repeal the "one generation rule". Like most private member's bills, however, its chance of passage is uncertain.
Thank you for the interesting essay. You mention the exemption in S. 3(5) for diplomatic and military service. In fact, that exemption is more narrow than people are realizing – there is in fact no real exemption for the children of military or diplomatic families, such as the thousands born over the decades at CFB Lahr, or every year to diplomats and other federal/provincial civil servants world wide. A lot of those who refer the exemption make it look like the government is looking out for its own. It actuallu should do so, but is not.
Allow me to re-tool your scenario above.
Jenny Maple is born to two Canadians who are posted in Tokyo as diplomats. It's not really a "choice" for the Canadian diplomats, since their parents in Canada are elderly and our diplomats have no place to stay; a good hospital is available in Tokyo and that is where their temporary rotational home is, plus it's a long flight to Canada for the expectant mother and the couple fears complications. So Jenny is born in Japan.
She grows up and meets Jean Habitant, a young man who was born to a Canadian air force sergeant and his wife at CFB Lahr in the 1980's.
In all the three scenarios you mention in the post above, the answer is the same for this couple's child. In the US scenarios, of course, the child gets US citizenship so is at least not stateless. But what if they are working in Austria (not posted by the government or military)? The grandchild of a Canadian soldier and a Canadian diplomat will be stateless! Conversely, in your scenarios in the post above, the children of other expats, if – and only if – they chose to join the military or public service and happened to be abroad when they started the family, would "benefit" from the exemption. But imagine if your Jane Canuck were posted to another country and subject to the Vienna convention on diplomatic relations – her child would be stateless. You would have stateless children of diplomats and military popping up everywhere. So C-37 really did the least it could possibly do for exemptions. I also have to wonder wonder why young people who know that their country has made them second class would be motivated to serve that same country…
CIC has pointed out that the UK and NZ have similar 1st generation provisions. But they have a broader set of terms than citizens born inside or outside the territory of the country – their laws speak of "citizenship acquired by descent" and "otherwise than by descent". This allows more flexibility than Canada's law, and you can bet that their soldiers and diplomats will not fall into this trap.
The US approach is even more equitable, since it does not so much "exempt" military or diplomats, but "credits" service with the government, military, certain NGOs as time spent in the US.
In a nutshell, Canada has now given anyone who was thinking of serving overseas either in the military or public service abroad something to think about seriously before joining.
It's also a kick in the teeth to anyone who already is serving, and had a child on posting, for whatever reason.
Those who are going to have children on posting will definitely (correctly) be demanding to be sent back by their employer (funded by the taxpayer) to Canada for accouchement (or join their spouses who are sent back), leading to more time off work, advances for accommodation, per diems, air fare, hospital bills (since they are not residents of provinces in most cases and not normally covered by provincial health) and so on.
So let's be clear – under C37 first generation kids are first generation kids, period. There is no meaningful exemption that covers military and diplomats' children, making Canada an oddball indeed.
One last note. CIC has published, in its FAQ, a real zinger entitled \Can the grandchildren of Canadian diplomats born outside Canada after April 17, 2009, obtain citizenship if they are not automatically Canadian citizens at birth? How?\
If you're a diplomat with a stateless grandchild, read the following: http://www.cic.gc.ca/english/information/faq/citizenship/cit-rules-faq11.asp
CIC ALSO PUBLISHED: FAQ
13.My children were born before April 17, 2009, in the second generation outside Canada, but I haven’t yet applied for their proof of citizenship (also called citizenship certificate). Now that the new law is in effect, does this mean that they are not Canadian?
Answer:No. Anyone who was a citizen when the law came into force will keep their citizenship, regardless of the generation in which they were born, and regardless of whether they were ever issued a proof of citizenship. You can apply for a proof of citizenship for your child at any time, from inside or outside Canada.
What they mean is anyone with a canadian grandfather: since those with grandmothers had no choice under 47 act. That changed in 77 but they ALLOWED late registration to anyone not registered EXCEPT..Those who had a canadian mum were given proactive citizenship and those with canadian father were given retroactive citizenship.
AMAZING! considering the 1977 act was supposed to wipe out the gender issue of passing citizenship on both to the late registration date of aug 2004 OR the fact you may not be 28 until AFTER 2009.
If your parent registered before your birth you were ok as long as you retained citizenship. If not why did they allowed late registration that was proactive? making all granchildren born to a grandmother unable to claim whilst the grandfathers passed on citizenship and under the 09 rule still can as long as they were born before 09.
The CIC question clearly states that if your were a citizen at birth (even if your parent registered late and you have a canadian grandfather) you can claim your heritage.
09 act gives those whos parents received proactive citizenship by gender discrimination and dates..the right to have retroactive citizenship but as its given from 09 onwards the rule states 09 onward you cannot pass citizenship down so it look like all non registered granchildren to a female lose out.
Absolutley wrong!! should not be allowed to happen..retroactive parents of females should be covered by the fact their children were born under 1977 act.
IF this is correct and not im not sure then it also means in some cases the parent who did not register before the birth of their child could have passed on citizenship if they had forseen having kids.In some cases children were born in 78/79 giving their grandma rights to pass citizenship on as long as the parent registered within that time frame. Again for granfathers wether their children registered late or not did not matter their citizenship was always retroactive under 77act.