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Canadian Citizenship By Birth Abroad

by Henry J. Chang

Overview

Prior to January 1, 1947, there was no citizenship statute in existence. Canada was in the curious position of being a nation without citizens. This was corrected on January 1, 1947 with the Canadian Citizenship Act, S.C. 1946, c.15 (the "1947 Act"). The 1947 Act recognized Canadian citizenship for the first time.

The subsequent Citizenship Act, R.S.C. 1985, c. C-29 (the "1977 Act") replaced the 1947 Act on February 15, 1977. It contained various provisions designed to preserve the citizenship rights of citizens under the 1947 Act. It also recognized limited citizenship rights for persons born in Canada before the 1947 Act came into effect.

Amendments were made to the 1977 Act on April 17, 2009 (the "2009 Amendments"), as a result of Bill C-37. The 2009 Amendments retroactively restores Canadian citizenship to some Canadians who previously lost citizenship and gives Canadian citizenship to some individuals who never previously acquired it. However, it also limits Canadian citizenship to the first generation born abroad.

Persons Born Outside of Canada to a Canadian Father or Single Mother Prior to January 1, 1947

As stated above, prior to January 1, 1947 there was no citizenship statute in effect. The 1947 Act provided only limited citizenship rights to persons born prior to its coming into force.

As in the case of citizenship through birth in Canada, the right of citizenship through parentage was limited to the children of a father or, in the case of a person born out of wedlock, a mother who was not an alien. Section 2 of the 1947 Act defined "alien" as a person who was not a Canadian citizen, Commonwealth Citizen, British subject or citizen of the Republic of Ireland.

Specifically, Paragraph 4(1)(b) of the 1947 Act provided that a person born outside Canada (other than on a Canadian ship) who, on the January 1, 1947, was not an alien and was either a minor on that date or had, before that date, been lawfully admitted to Canada for permanent residence and his father or (in the case of a person born out of wedlock) his mother:

  1. Was born in Canada or on a Canadian ship and was not an alien at the time of that person's birth;

  2. Was, at the time of that person's birth, a British subject who had Canadian domicile;

  3. Was, at the time of that person's birth, a person who had been granted, or whose name was included in, a certificate of naturalization; or

  4. Was a British subject who had his/her place of domicile in Canada for at least twenty years immediately before the 1st day of January 1947, and was not, on that date, under an order of deportation

was considered a Canadian citizen.

According to Subsection 11(2) of the 1977 Act, a woman who

  1. Ceased to be a British subject by virtue of any law of Canada in force before January 1, 1947, by reason of her marriage or acquisition by her husband of foreign nationality; and

  2. Would have been a Canadian citizen had the 1947 Act come into force immediately before her marriage or acquisition by her husband of a foreign nationality

may automatically reacquire citizenship immediately upon filing a notice to the Minister that she elects to be a Canadian citizen.

Subsection 4(2) of the 1947 Act required persons who were minors on January 1, 1947 and who gained Canadian citizenship under Section 4(1)(b) of the 1947 Act to register within a certain period. It stated that such a person would cease to be a Canadian citizen three years after the date on which he or she attained the age of twenty-one, or on January 1, 1954, whichever was later unless he:

  1. Had his place of domicile in Canada at such date; or

  2. Had, before such date and after attaining the age of twenty-one, filed a declaration of retention of Canadian citizenship.

Persons Born After December 31, 1946 but Before February 15, 1977

Overview

Paragraph 5(1)(b) of the 1947 Act provided that a person born outside Canada (other than on a Canadian ship) could be considered a Canadian citizen if:

  1. His father, or in the case of a child born out of wedlock, his mother, was a Canadian citizen at the time of the person's birth; and

  2. The birth was registered, in accordance with the regulations, within two years after its occurrence or within such extended period as the Minister may, under the regulations, authorize in special cases.

Paragraph 3(1)(e) of the 1977 Act continued to recognize this right. It stated that a person who was entitled, immediately before February 15, 1977, to become a Canadian citizen under Paragraph 5(1)(b) of the 1947 Act was a Canadian citizen.

Children of Canadian Mothers Born in Wedlock Not Initially Entitled to Citizenship

Paragraph 5(1)(b) of the 1947 Act discriminated against children of Canadian mothers born outside Canada, unless the child was born out of wedlock. Consequently, children born in wedlock, outside of Canada, to an alien father and Canadian citizen mother, were not entitled to Canadian citizenship by parentage. However, according to Paragraph 5(2)(b) of the 1977 Act, a person who:

  1. Was born outside Canada before February 15, 1977;
  2. Whose mother was a Canadian citizen at the time of his or her birth; and
  3. Was not entitled, immediately before February 15, 1977, to become a citizen under subparagraph 5(1)(b)(i) of the 1947 Act

would be granted citizenship if, before February 15, 1979, or within such extended period as the Minister may authorize, an application for citizenship was made to the Minister by a person authorized by regulation to make the application. Paragraph 5(2)(b) of the 1977 Act therefore permitted children born before February 15, 1977, in wedlock to a Canadian mother and a non-Canadian father, to seek Canadian citizenship. However, the extended period during which such an applicant could seek Canadian citizenship expired on August 14, 2004.

Requirement to Register Citizenship

Subsection 4(3) of the 1977 Act stated that a person who was entitled to Canadian citizenship in accordance with Section 5(1)(b) of the 1947 Act remained so entitled, notwithstanding that his birth was registered, after February 14, 1977, in accordance with regulations made under the 1947 Act:

  1. Within two years after the occurrence of his birth; or
  2. Within such extended period as the Minister may authorize after February 15, 1977 or has authorized before that date.

The extended period remained in effect until August 14, 2004. As the extended period has now expired, a person who would have had a claim claim under Section 5(1)(b) of the 1947 Act is no longer permitted to seek Canadian citizenship.

Retention Requirements for Applicants Born Between January 1, 1947 and February 14, 1977

According to Paragraph 5(1a) of the 1947 Act, a person born abroad between January 1, 1947 and February 14, 1977, who acquired Canadian citizenship pursuant to Paragraph 5(1)(b) of the 1947 Act by registering his or her birth abroad, would cease to be a Canadian citizen the day after his or her 22nd birthday unless he or she filed a Declaration of Retention between his or her 21st and 22nd birthday. The provision was later amended so that the individual could comply with the retention requirement by either:

  1. Having a place of domicile in Canada on his or her 24th birthday; or
  2. Filing a Declaration of Retention between his or her 21st and 24th birthday.

However, loss of citizenship could not occur if:

  1. The birth had not been registered; or
  2. The person had not reached his or her 24th birthday on February 15, 1977 (the date that the 1977 Act became effective).

Persons Born to a Canadian Parent Outside Canada After February 14, 1977

Overview

Subsection 3(1)(b) of the 1977 Act provided that a person born outside Canada after February 14, 1977 is a Canadian citizen if, at the time of birth, one of the parents (other than an adopting parent) was also a Canadian citizen. According to Subsection 4(2) of the 1977 Act, for the purposes of Section 3(1)(b), where a child was born after the death of a parent, he or she was deemed to have been born before the death of that parent.

Retention Requirements for Second and Subsequent Generation Applicants born after February 14, 1977

Under the 1977 Act, a retention requirement existed for second generation children whose Canadian parent was also born abroad. According to Section 8 of the 1977 Act, if a person was born outside Canada after February 14, 1977 and was a Canadian citizen by reason that, at the time of his/her birth, one of his/her parents was also a Canadian citizen by virtue of Subsection 3(1)(b) or 3(1)(e), the person would cease to be a Canadian citizen upon attaining twenty-eight years of age, unless that person:

  1. Made an application to retain citizenship; and

  2. Registered as a Canadian citizen and either resided in Canada for a period of at least one year immediately preceding the date of the application or established a substantial connection with Canada.

"Substantial connection" was defined in the regulations as follows:

  1. The person has been employed, for at least two of the four years immediately preceding the date of his application, in the public service of Canada or of a province or as a member of the Canadian forces or the Royal Canadian Mounted Police or as a Canadian representative of the United Nations or one of its affiliated agencies; or

  2. The person has an adequate knowledge of one of the official languages of Canada, of Canada and the responsibilities and privileges of citizenship, determined in accordance with the criteria set out in the regulations and, since attaining the age of fourteen years of age, has spent more than one year in Canada with a parent, brother, sister, aunt, uncle, or grandparent or in attendance at a recognized secondary or post-secondary educational institution.

Resumption of Lost Citizenship

Where a person subject to Section 8 of the 1977 Act ceased to be a Canadian citizen for failure to comply with the retention requirements, it was still possible to apply for resumption of Canadian citizenship. According to Subsection 11(1) of the 1977 Act, the Minister would be required to grant citizenship to any person who, having ceased to be a citizen:

  1. Made an application for resumption of citizenship;

  2. Was not the subject of an order of or a declaration by the Governor in Council made pursuant to Section 10 (fraud) or Section 20 (matters of security) of the 1977 Act or Section 18 of the 1947 Act;

  3. Was not under a deportation order; and

  4. Had been lawfully admitted to Canada for permanent residence after having ceased to be a citizen, has not ceased since that admission to be a permanent resident, and has resided in Canada since that admission for at least one year preceding the date of his application.

The 2009 Amendments

Remedial Provisions Contained in the 2009 Amendments

The 2009 Amendments sought to restore Canadian citizenship to the certain individuals who had either lost Canadian citizenship or who had never been Canadian citizens and to ensure the retroactive grant of citizenship to persons who had lost citizenship and then regained it through a grant or resumption under a previous remedial provision. It did so by adding additional provisions to Subsection 3(1), which describes persons who are now considered Canadian citizens.

As a result of the 2009 Amendments, the following individuals are now considered Canadian citizens:

  1. A person who lost Canadian citizenship for any reason other than the following three reasons:
    1. The person renounced his or her Canadian citizenship;
    2. The person's Canadian citizenship was revoked for false representation, fraud, or concealment of material circumstances; or
    3. The person is a second or subsequent generation Canadian born abroad after enactment of the 1977 Act and who lost citizenship for failure to retain by age 28 [Paragraph 3(1)(f)];

  2. A person who was born abroad to a Canadian parent before the 1977 Act but who never became a Canadian citizen [Paragraph 3(1)(g)];
  3. A person who was born abroad to a Canadian Parent before the 1977 Act and who went through the process of immigrating to Canada and then naturalizing to become a Canadian citizen [Paragraph 3(1)(h)];
  4. A person who who had been a citizen by way of grant, ceased to be a citizen for a reason other than one of the three reasons listed in Paragraph 3(1)(f), but regained citizenship under the 1977 Act [Paragraph 3(1)(i)]; and
  5. A person who had been a citizen other than by way of grant, ceased to be a citizen for a reason other than one of the three reasons listed in Paragraph 3(1)(f), but resumed his or her Canadian citizenship under a provision from prior legislation [Paragraph 3(1)(j)].

The first two provisions are clearly intended to restore Canadian citizenship to individuals who have lost it. The last three provisions are intended to retroactively fill in gaps of time in the past when these individuals were not considered Canadian citizens; without these provisions, any children born during the gap in time would not otherwise acquire Canadian citizenship (since the parent would not have been a Canadian citizen at the time of their birth).

Although these remedial provisions will be beneficial to many individuals, they do not restore Canadian citizenship to all individuals (see below).

Undesirable Consequences of the 2009 Amendments

The primary issue of concern arising from the 2009 Amendments is that the ability to transmit Canadian citizenship to children born abroad will be limited to the first generation [Paragraph 3(3)(b)]. In other words, a person born abroad to a Canadian citizen who was born in Canada will still be considered a Canadian citizen. However, if that Canadian citizen born abroad subsequently has children born abroad, those children will not be considered Canadian citizens. An exception to this limitation exists for individuals who are born to a Canadian parent who is working abroad in or with the Canadian Armed Forces, the federal public administration, or the public service of a province, unless the parent is a locally engaged person.

Fortunately, this provision only applies to persons born after the effective date of the 2009 Amendments (April 17, 2009). According to Subsection 3(4), persons born before that date who are second or subsequent generation Canadians continue to have Canadian citizenship.

In addition, the 2009 Amendments repeal the
previous retention requirement that was imposed on second and subsequent generations by the 1977 Act. However, they do not restore Canadian citizenship to persons who previously lost their citizenship as a result of this previous retention requirement (because they failed to register before the age of 28).

A related issue of concern is that limiting Canadian citizenship to the first generation may render some children of Canadians born abroad stateless. This can occur if the child is born in a country where the concept of jus sanguinis (citizenship through ancestry) applies rather than jus solis (citizenship through birth in a specific country); where jus sanguinis applies, the child would not acquire the citizenship of his or her country of birth.

The 2009 Amendments provide only limited relief to such stateless children. According to Subsection 5(5), Canadian citizenship shall be granted to a person born outside of Canada after April 17, 2009, to a parent who was a Canadian at the time of the person's birth if, at the time the person applies for Canadian citizenship, he or she:

  1. Is less than 23 years old;
  2. Has resided in Canada for at least three years during the four years immediately preceding the date of the citizenship application;
  3. Has always been stateless; and
  4. Has not been convicted of certain national security offences.


About The Author

Henry J. Chang is a partner of Chang & Boos, who is a multinational relocation law firm practicing exclusively in the field of corporate immigration, specifically Canada Immigration law and US immigration law. Mr. Chang obtained his law degree from Osgoode Hall Law School in 1990. He is a member of both The State Bar of California and The Law Society of Upper Canada ("LSUC"). Mr. Chang is also licensed as a Foreign Legal Consultant by the Law Society of Upper Canada, which is a requirement for all Ontario lawyers who provide advice on the law of a foreign jurisdiction. A recognized authority in the field of United States and Canadian immigration law, Mr. Chang lectures extensively on the subject in both the United States and Canada. His articles have appeared in numerous nationally- and internationally-recognized publications. A partial list of recent publications and speaking engagements appears below. Mr. Chang also mentors other lawyers in the practice of immigration law in the United States and Canada. Mr. Chang has been extensively involved with the American Immigration Lawyers Association ("AILA") since 1993. He has held a position on the chapter executive of the Canadian Chapter of AILA Canada ("AILA Canada") every year since 1996. Mr. Chang was the Chapter Chair of AILA Canada and a member of AILA's Board of Governors from 1996 - 1998, 1999 - 2002, 2004 - 2006, and 2008-2009.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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