Legal Research

?One generation abroad? rule for citizenship is now law

By Alex Manevich

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:

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?

Full post as published by Slaw.ca on April 20, 2009 (boomark / email).