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ABSTRACT
Since 1947, the Canadian Citizenship Act has set out the laws that determine eligibility for Canadian citizenship. Throughout the Act’s various enactments, the Canadian government has recognised the right to citizenship by descent, meaning the right for a Canadian citizen to pass on his/her citizenship status to his/her child born outside of Canada. Citizenship by descent is a commonly recognised path to citizenship in many countries. Canada has recently changed its approach to citizenship by descent and has imposed a one-generation rule. This article examines the history of citizenship by descent, the current regime governing this type of citizenship acquisition and then examines how these laws comply with Canada’s international legal obligations and the rule of law. Ultimately, the article argues that Canada’s new approach to citizenship by descent has the potential to render children stateless, thus violating international law and the rule of law.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Mariette Brennan is an Associate Professor at the Bora Laskin Faculty of Law at Lakehead University. She holds a PhD (Law) from Osgoode Hall Law School, York University, an LLM (with distinction) in International Human Rights Law from the University of Essex (United Kingdom), and a JD from the University of Ottawa. Her main areas of research are constitutional and public health law.
Miriam Cohen is an Assistant Professor of International Law at the Faculty of Law, University of Montreal. Miriam Cohen is a graduate from the Université de Montréal (LL.B) and holds a PhD in International Law from Leiden University. She also holds graduate degrees in Law (LL.M) from Harvard Law School, and the Faculty of Law at the University of Cambridge and the Université de Montréal. Her teaching and research focus is on international human rights, international criminal law and victims’ rights. She is currently conducting research on reparations for international crimes and human rights violations funded by a prestigious SSHRC Insight Development grant. Her book on the development of reparative justice for international crimes is forthcoming with Cambridge University Press. In addition, she is co-authoring a book on legal and policy responses to human trafficking, under contract with University of Toronto Press.
Notes
1 Canadian Citizenship Act, 1946, SC 1946, c 15 (Citizenship Act or Act).
2 See The Immigration Act, 1910, SC 1910, c 27 as revised in RSC 1927, c 93; The Naturalization Act, 1914, SC 1914, c 44 as revised in RSC 1927, c 138; and an Act to define Canadian Nationals and to provide for the Renunciation of Canadian National, SC 1921, c 4 as revised in RSC 1927, c 21.
3 ‘Canadian Citizenship Act’, 2nd reading, House of Commons Debates, 20th Parl, 2nd Sess, No 1 (2 April 1946), 502–10 (Hon Paul J J Martin). (Hon Paul J J Martin (Sr.), Secretary of State of Canada when he moved for the second reading on 2 April 1946 of the Bill respecting citizenship, nationality, naturalisation and status of alien.) See also Taylor v. Canada (Minister of Citizenship and Immigration), 2007 FCA 349, [2008] 3 FCR 324 at para. 39.
4 States often limit who, even if they are born in the country, receives citizenship. This will be explained in more detail when examining individual countries.
5 See Australia, Commonwealth, Department of Immigration and Border Services, Recent Changes to Australian Citizenship Legislation, https://www.border.gov.au/Trav/Citi/Lear/Law-and-policy/legis-changes (Australia is in the process of amending its eligibility rules surrounding naturalisation. It is incorporating Australian values provisions, increasing residency requirements, altering English language comprehension, and so on. All of these changes are meant to strengthen and protect Australian citizenship).
6 See Australia, Commonwealth, New South Wales Government, Temporary Residents Program (last updated 20 November 2015), http://www.detinternational.nsw.edu.au/media-assets/trp/residency-status.pdf (if the child is born in Australia but the parent is neither a citizen nor a permanent resident, the child will be granted a temporary resident visa and will be eligible for Australian citizenship when he/she turns 10 years old, if they are still residing in the country).
7 Australia, Commonwealth, Department of Immigration and Border Protection, Citizenship by Descent-Eligibility, https://www.border.gov.au/Trav/Citi/pathways-processes/application-options/descent/eligibility.
8 The Australian government requires a person (other than those eligible as a first-born abroad generation) to have resided for two years in Australia prior to being able to pass on his/her citizenship by descent. Ibid.
9 British Nationality Act, 1981 (UK) c 61, s 1.1. See also UK, UK Visas and Immigration, Nationality Instructions, 1 (2 December 2013), Ch. 1, https://www.gov.uk/government/collections/nationality-instructions-volume-1.
10 British Nationality Act, 1981 (UK) c 61, s 1.1. See also UK Visas and Immigration, Nationality Instructions, Ch. 4. Similar to Canadian law, the United Kingdom does allow an exception if the child was born abroad because the parent was working or employed with the United Kingdom government (including its armed forces).
11 Jon Feere, ‘Birthright Citizenship in the United States: A Global Comparison’ (Center for Immigration Studies, August 2010), 15, Table 1, http://www.cis.org/sites/cis.org/files/articles/2010/birthright.pdf.
12 US, US Citizenship and Immigration Services, Citizenship Through Parents, 10 November 2015, https://www.uscis.gov/us-citizenship/citizenship-through-parents.
13 Taylor v. Canada (Minister of Citizenship and Immigration), 2007 FCA 349, [2008] 3 FCR 324 at para. 42 (Taylor). ‘The Citizenship Act was designed to be an all-encompassing law on citizenship and was meant to deal with all possible scenarios of who had a right to Canadian citizenship. The breadth and significance of this piece of legislation have since been recognised: “The 1947 Act is a complete code for Canadian citizenship. It deals with persons born before January 1, 1947, as well as with those born thereafter. It deals with persons born in Canada as well as with those born outside Canada. It determines which of these persons are Canadian citizens as of right, and with respect to those persons who are Canadian citizens as of right, it determines which may apply for a grant of Canadian citizenship, and how, and subject to what requirements. The 1947 Act also determines when or how Canadian citizens lost their citizenship.”'
14 Citizenship Act, RSC 1985, c C-29, s 5 (Citizenship Act, 1985) (in order to acquire citizenship through naturalisation, an individual must meet the requirements of section 5 of the Citizenship Act, 1985). See generally Jamie Chai Yun Liew and Donald Galloway, Immigration Law, 2nd ed. (Toronto: Irwin Law, 2015), 445.
15 Ibid., s 3(1)(a) (individuals born on Canadian soil are granted citizenship pursuant to section 3 (1) (a) of the Citizenship Act). But see Ibid., s 3(2) (there are exceptions to this for individuals whose parents reside in Canada for the purposes of diplomatic services). See generally Liew and Galloway, Immigration Law, 439–40.
16 Acquisition of citizenship by descent means that any child born to a Canadian citizen automatically has a right to become a Canadian citizen, even if that child has never resided in or even visited Canada. See Citizenship Act, s 4; Citizenship Act, 1985, at s 3(1)(b) (the right to citizenship by descent is also granted in section 3 (1)(b) of the current Citizenship Act, 1985). See generally Liew and Galloway, Immigration Law, 440–45.
17 Citizenship Act, s 4(2) (this retention provision underwent a series of changes, but the net result was always the same: if the individual did not fulfil the statutory requirements of retention, he/she would lose his/her citizenship). See also Henry Chang, ‘Canadian Citizenship by Birth Abroad’, Chang and Boos’ Canada – U.S. Immigration Law Center (blog), 29 June 2009, http://americanlaw.com/canadiancitizenshipbirthabroad.html.
18 Citizenship Act, s 4(3) (pursuant to section 4(3), the government allowed registration under this provision until 14 August 2004 (for all individuals who were entitled to make a citizenship claim under the provision); this meant that an individual who was born in 1950, if they met the criteria of the section, had until 14 August 2004 to register his/her citizenship. After that date, the government would no longer grant citizenship through this section).
19 Citizenship Act, SC 1974-75-76, c 108, s 5(2)(b) (Citizenship Act, 1977).
20 The retention requirements were not particularly arduous; the individual had to: (1) make an application to retain citizenship and (2) be ‘registered as a Canadian citizen and either reside in Canada for a period of at least one year immediately preceding the date of application or established a substantial connection with Canada’. See section 8 of the Citizenship Act, 1977 (regulations defined a ‘substantial connection’ as: ‘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 of the Royal Canadian Mounted Police or as a Canadian representative to the United Nations or one of its affiliated agencies; or [t]he person has an adequate knowledge of one of the official languages 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’).
21 According to the amendments, anyone who meets any of the five new proposed grounds of citizenship are considered citizens: 1. ‘A person lost citizenship for any reason other the three prohibited reasons (renunciation of citizenship; revocation for false representation, fraud or concealment of material circumstances; or failure to retain citizenship by that age of 28 (for second and subsequent generation Canadians born abroad)’; 2. ‘A person was born abroad before 15 February 1977 to a Canadian parent but never became a citizen’; 3. ‘A person was born abroad before February 1977 to a Canadian parent and who did not become a citizen by descent but went through the process to “immigrate” to Canada and become a Canadian citizen through naturalization’; 4. ‘A person had been a citizen other than by way of grant, ceased to be citizen for a reason other than one of the three prohibited reasons listed in situation 1 above, but regained citizenship under the current Citizenship Act, 1985’; and, 5. ‘A person had been a citizen other than by way of grant, ceased to be a citizen for a reason other than of the three prohibited reasons listed in situation 1, above, but resumed his or her Canadian citizenship under a provision from prior legislation’. The changes were adopted into the Citizenship Act, 1985, through section 3(1)(f)–(j). See also Bill C-37, An Act to amend the Citizenship Act, 2nd Sess, 41st Parl, 2014, http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?Language=E&ls=C37&Mode=1&Parl=39&Ses=2&source=library_prb (Revised Bill C-37 by Penny Becklum of the Law and Government Division on the 20 February 2014) (Bill-37).
22 Citizenship and Immigration Canada, ‘History of Citizenship Legislation’, 6 July 2015, http://www.cic.gc.ca/english/resources/tools/cit/overview/hist.asp (according to the background documents for Bill C-37, there are four distinct groups of ‘lost Canadians’: 1. ‘People Naturalized to Canada who subsequently lived outside the country for more than 10 years prior to 1967’; 2. ‘People born abroad to a Canadian parent prior to the enactment of the Citizenship Act, 1977; 3. People who lost citizenship because they (or their parent) became a citizen of another country during the period of 1 January 1947 and 15 February 1977’; and, 4. ‘Second and subsequent generation Canadians born abroad since the Citizenship Act, 1977’. This last group of individuals have not necessarily lost citizenship but are at risk of losing citizenship if they fail to take the necessary steps to retain citizenship by their 28th birthday. While many so-called ‘lost Canadians’ officially became citizens in 2009 (due to legislative amendments), those ‘who were born before the Canadian Citizenship Act took effect [in] … 1947 … as well as … their children who were born outside Canada in the first generation’ did not obtain the benefit of the 2009 amendments); ‘As Many “Lost Canadians” Gain Citizenship, Others Are Left in Limbo’, CBC News, 17 April 2009, http://www.cbc.ca/news/canada/as-many-lost-canadians-gain-citizenship-others-are-left-in-limbo-1.786957 (this oversight was corrected with the enactment of the Strengthening Canadian Citizenship Act. This new Act is responsible for granting citizenship to an estimated 95% of the remaining ‘lost Canadians’). See also Bill C-37, s 3(1)(f)-3(7)(d).
23 See Nicholas Keung, 'B.C. woman fights to get citizenship back after obscure rule leaves her stateless', The Toronto Star (28 August 2016), https://www.thestar.com/news/immigration/2016/08/28/bc-woman-fights-to-get-citizenship-back-after-obscure-rule-leaves-her-stateless.html. See also note 13. Despite all the amendments made to the Citizenship Act, the retention requirements have remained in place for all individuals who acquired citizenship through section 8.
24 Citizenship Act, 1985, s 3(3). It has been suggested that the catalyst for the ‘first generation rule’ was the government-funded evacuation of Canadians (many of whom had allegedly never been to Canada before) from Lebanon in the midst of the war that occurred in that region in 2006. See Lois Harder and Lyubov Zhyznomirska, ‘Claims of Belonging: Recent Tales of Trouble in Canadian Citizenship’, Ethnicities 12, no. 3 (2102): 293 at 294–300; Elke Winter, ‘Impossible Citizens: Canada’s “Citizenship Bonanza” and its Boundaries’, Citizenship Studies 18, no. 1 (2014): 46 at 56; Liew and Galloway, Immigration Law, 441. It is reported that a general sense of unfairness arose in that individuals (sometimes referred to as ‘citizens of convenience’) who had no ‘real connection’ to Canada should be able to rely on the Canadian ‘taxpayer to subsidize their flight from danger’. Harder and Zhyznomirska, ‘Claims of Belonging’, 294; Liew and Galloway, Immigration Law, 441. In light of this, the official reason for the change, according to then Minister of Citizenship and Immigration Jason Kenney, was in order to ‘protect the value of Canadian citizenship for the future’ (Winter, ‘Impossible Citizens’, 47). As such, the general sentiment behind the ‘first generation rule’ was that it should be limited to ‘those people who have some kind of enduring presence or commitment to Canada’ (CBC News, ‘Lost Canadians’).
25 Citizenship Act, 1985, s 3(5).
26 When examining the proposed Bill C-24, the Canadian Bar Association noted that the proposed amendments failed to address the issue of statelessness created by restricting acquisition by descent to the first generation. The Canadian Bar Association called on the government to reconsider Bill C-24 to address this issue. Canadian Bar Association (National Immigration Law Section), ‘Bill C-24, Strengthening Canadian Citizenship Act’, Legislative Comment on Bill C-24 (2014), 28–29. The Canadian Bar Association again requested the government to review this issue when it considered Bill C-6. See Canadian Bar Association (National Immigration Law Section), ‘Bill C-6, Citizenship Act Amendments’, Legislative Comment on Bill C-6 (2017), 5 (CBA, ‘Bill C-6’). For a general discussion on the problems associated with the amendments limiting citizenship by descent to the first generation, see Diana Mehta, ‘New Citizenship Limits Baffle Canuck Dad as Baby Boy Not Considered Canadian’, The Toronto Star, 26 September 2010, https://www.thestar.com/news/canada/2010/09/26/new_citizenship_limits_baffle_canuck_dad_as_baby_boy_not_considered_canadian.html. Those who would otherwise be Canadian citizens if not for the ‘first generation rule’ are entitled to apply for permanent resident status and then Canadian citizenship (pursuant to s 5 of the Citizenship Act). In short this means that these individuals, while they may be stateless when born, can apply for permanent resident status and then, after meeting the time period, can apply for citizenship. This does not rectify the problem that an individual will be left stateless for a number of years while this method of citizenship acquisition occurs.
27 It has also been noted that only 30 countries grant automatic citizenship to an individual born on their soil. The rest of the world bases citizenship on the jus sanguinis model that means parental citizenship rights dictate whether the child, born in the country, will receive citizenship. Feere, ‘Birthright Citizenship in the United States’; Ronald Rizzo, ‘Born in the USA But Not a Citizen – How the Birth Visa Can Solve Today’s Immigration Challenges’, Journal of Civil Rights and Economic Development 27, no. 2 (2013–2015): 393 at 397.
28 Amnesty International Canada, ‘Bill C-24; Amnesty International’s Concerns Regarding Proposed Changes to the Canadian Citizenship Act’, Legislative Comment on Bill C-24 (9 June 2014), 2; Canadian Centre on Statelessness, ‘Stateless Persons in Canada’, http://www.statelessness.ca; Catherine Dauvergne, ‘How the Charter has Failed Non-Citizens in Canada: Reviewing Thirty Years of Supreme Court Jurisprudence’, McGill LJ 58, no. 3 (2013): 663. The causes and consequences will be further developed in the next section of the article.
29 Canadian Centre on Statelessness, ‘Stateless Persons in Canada’, http://www.statelessness.ca/who-is-stateless-in-canada.html.
30 CBA, ‘Bill C-6’, 13.
31 Bill C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act, 1st Sess, 42nd Parl, 2016.
32 Citizenship Act, 1985, s 5. See Citizenship and Immigration Canada, ‘Archived – Strengthening Canadian Citizenship Act: A Before and After View of the Key Changes to the Citizenship Act’ (5 June 2015), http://news.gc.ca/web/article-en.do?nid=985219 (specifically, prior to the new Act, one was required to reside within Canada for three out of the four years immediately preceding the application date. Furthermore, one’s time spent in Canada prior to becoming a permanent resident counted towards the three-year requirement). See Brief of The Canadian Association of Refugee Lawyers, ‘Bill C-24, An Act to Amend the Citizenship Act and to Make Consequential Amendments to Other Acts’, Legislative Comment on Bill C-24 (5 May 2014), 4 (according to the new Act, one must reside (which is newly defined unambiguously as physical presence) in Canada ‘at least 183 days in each calendar year for four out of six years’ immediately preceding the application date); CIC, ‘Strengthening Canadian Citizenship’ (furthermore, one’s time spent in Canada prior to becoming a permanent resident no longer counts towards the four-year requirement); Liew and Galloway, Immigration Law, 448 (closely related to the new residency requirements is the introduction of a new (somewhat ambiguous) ‘intent to reside’ provision. Essentially, this obligates applicants to declare/demonstrate their intention to reside in Canada prior to receiving Canadian citizenship).
33 Citizenship Act, 1985, s 5. See also Elke Winter, ‘Report on Citizenship Law: Canada’ (2015) EUDO Citizenship Observatory, 17 (in a similar vein, prior to the new Act, only individuals between the ages of 18 and 54 were required to meet certain language requirements and pass a knowledge test. Following the new Act, this has been extended to individuals between the ages of 14 and 64).
34 Citizenship and Immigration Canada, ‘Changes to the Citizenship Act’ (8 December 2014), http://www.cic.gc.ca/english/citizenship/cit-changes.asp (other changes include a new requirement that applicants file Canadian income taxes (in accordance with the Income Tax Act), as well as ‘strengthened’ penalties for fraud). See also CIC, ‘Strengthening Canadian Citizenship’, 39 (a ‘fast track’ mechanism has also been created for those serving with the Canadian Armed Forces in addition to new rules making Canadian citizenship less accessible to individuals convicted of criminal offences abroad).
35 Citizenship Act, 1985, s 5 (4). See also Audrey Macklin, ‘Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien’, Queen’s LJ 40 (2014–2015): 1 at 29.
36 See Bill C-6.
37 In domestic legislation, the term ‘citizenship’ is often used, whereas under international conventions, the term ‘nationality’ (and its derivatives) is the norm. See in this regard, Elspeth Guild who posits ‘citizen: this group is defined by national law, commonly contained in constitutions; as a term, it is most evident by its absence in international human rights conventions … ’; and ‘national: in this concept there is an inference that the relationship between the individual and the state is recognised beyond the borders of the state; the national is the citizen viewed from outside the state … ’. See Elspeth Guild, The Legal Elements of the European Identity: EU Citizenship and Migration Law (The Hague: Kluwer Law International, 2004), 20–1. See also Daiva Stasiulis, ‘The Extraordinary Statelessness of Deepan Budlakoti: The Erosion of Canadian Citizenship Through Citizenship Deprivation’, Studies in Social Justice 11, no. 1 (2017): 1–26 at 1.
38 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) art 15(1) (while this is not a binding treaty, it helps inform the rights in the treaties discussed in this section).
39 But see Report of the International Law Commission, UNGAOR, 67th Sess, Supp No 10, UN Doc A/67/10 (2012) 9 at 32–33, cited in Macklin, ‘Citizenship Revocation’, 12 (on the meaning of ‘arbitrariness’: ‘The Commission is of the view that such a deprivation of nationality, insofar as it has no other justification than the State’s desire to expel the individual, would be abusive, indeed arbitrary within the meaning of article 15, paragraph 2, of the Universal Declaration of Human Rights … It should be clarified, however, that [draft Article 8] does not purport to limit the normal operation of legislation relating to the grant or loss of nationality; consequently, it should not be interpreted as affecting a State’s right to deprive an individual of its nationality on a ground that is provided for in its legislation’).
40 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 art 24 (entered into force 23 March 1976).
41 Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49, Article 7.
42 UN Doc A/6014, (1965) 47 at 48–9.
43 Certain Questions Relating to the Conflict of Nationality Laws, 13 April 1930, 179 LNTS 89 art 1.
44 Nottebohm (Liechtenstein v. Guatemala), (1955), Judgment, [1955] ICJ Report 4.
45 Foreword to the first edition, in Paul Weis, Nationality and Statelessness in International Law, Vol. 28 (Leiden: Brill Academic Publishing, 1979).
46 Yean and Bosico Children v. Dominican Republic (2005), Judgment, Inter-Am Ct HR (Ser C), No 130 at para. 140 (emphasis added) (Yean and Bosco).
47 James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), 28.
48 Convention relating to the Status of Stateless Persons, 28 September 1954, 360 UNTS 117 (1954 UN Convention) (adopted on 28 September 1954 by a conference of plenipotentiaries convened by Economic and Social Council resolution 526 A(XVII) of 26 April 1954. Entry into force 6 June 1960, in accordance with article 39).
49 Convention on the Reduction of Statelessness, 30 August 1961, 989 UNTS 175 (1961 UN Convention) (adopted on 30 August 1961 by a conference of plenipotentiaries which met in 1959 and reconvened in 1961 in pursuance of General Assembly resolution 896 (IX) of 4 December 1954. Entry into force 13 December 1975, in accordance with article 18).
50 1954 UN Convention, art 1.
51 Gregg Erauw, ‘Compatibility of the 1954 Convention Relating to The Status Of Stateless Persons With Canada’s Legal Framework and its International Human Rights Obligations’ (Report of UN High Commissioner for Refugees, 2015).
52 ‘Statelessness in the Canadian Context: An Updated Discussion Paper’ (Report of UN High Commissioner for Refugees, 2012), 32, http://www.refworld.org/docid/4facb7a62.html. See also generally on the 1954 UN Convention, Nicole LaViolette, ‘The Principal International Human Rights Instruments to Which Canada has not Acceded’ (2006) 24 Windsor YB Access Just 267 at 278.
53 ‘Convention Relating to the Status of Stateless Persons’ (15 May 2017) UNTC Status of Treaties, https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-3&chapter=5&Temp=mtdsg2&clang=_en.
54 See generally UNHCR, ‘Statelessness in the Canadian Context’, 33–4.
55 ‘Summary Conclusions of the Expert Meeting on Interpreting the 1961 Statelessness Convention and Preventing Statelessness among Children’ (Report of UN High Commissioner for Refugees, 2011), para. 37.
56 Canadian Centre on Statelessness and Institute on Statelessness and Inclusion Joint Submission to the Human Rights Council at the 30th Session of the Universal Periodic Review, 5 October 2017.
57 Ibid.
58 Citizenship Act, 1985, art 3(3).
59 Ibid., art 5(5).
60 One relevant case that deals with the ‘first generation rule’ and touches briefly on statelessness is Kinsel v. Canada (Citizenship and Immigration), 2014 FCA 126, which we will discuss below.
61 Craig Forcese, ‘A Tale of Two Citizenships: Citizenship Revocation for “Traitors and Terrorists”' (2013–2014) 39 Queen's Law Journal 551 at 559–561.
62 See for example, Yean and Bosico, para. 140.
63 See Robin Elliot, ‘References, Structural Argumentation and the Organizing Principles of Canada’s Constitution’, Canadian Bar Review 80, no. 1–2 (2001): 67.