Second Generation Canadian?

[subzer0]

My child was born in the US in 2023. My wife is a Canadian citizen who was born outside if Canada to a Canadian parent who got citizenship by birth. I read about the December ruling of the superior court and I am wondering what became of that? Is it worth applying for my kid's proof of citizenship before the dust settles or we need to wait to see what the bew law will be?

My wife has her Canadian passport and proof of cutizenship.

 

[Simba112]

My child was born in the US in 2023. My wife is a Canadian citizen who was born outside if Canada to a Canadian parent who got citizenship by birth. I read about the December ruling of the superior court and I am wondering what became of that? Is it worth applying for my kid's proof of citizenship before the dust settles or we need to wait to see what the bew law will be?

My wife has her Canadian passport and proof of cutizenship.

I would wait until 6 months lapses from original date of ruling and or after 30days of appeal. That is coming close either May or June this year to make changes to legislation and update new framework

 

[hawk39]

I would wait until 6 months lapses from original date of ruling and or after 30days of appeal.

The government said they would not appeal the ruling.

My child was born in the US in 2023. My wife is a Canadian citizen who was born outside if Canada to a Canadian parent who got citizenship by birth. I read about the December ruling of the superior court and I am wondering what became of that? Is it worth applying for my kid's proof of citizenship before the dust settles or we need to wait to see what the bew law will be?

My wife has her Canadian passport and proof of cutizenship.

The planned amendment by Parliament is a non-consecutive three-year residency test for the parent before the birth of the child for children born after the 2009 Act was enacted. This means that your wife needed to have lived in Canada for at least 1095 days at any time before your child was born in order for that child to be eligible for citizenship by descent.

 

[subzer0]

The government said they would not appeal the ruling.


The planned amendment by Parliament is a non-consecutive three-year residency test for the parent before the birth of the child for children born after the 2009 Act was enacted. This means that your wife needed to have lived in Canada for at least 1095 days at any time before your child was born in order for that child to be eligible for citizenship by descent.

I was hoping there would be no such stipulation. I read somewhere that it may get challenged still. We do have many ties to Canada and travel there all the time, however my wife will not meet residency requirements as she never really lived there but visited for months at a time when she was young.

 

[scylla]

I was hoping there would be no such stipulation. I read somewhere that it may get challenged still. We do have many ties to Canada and travel there all the time, however my wife will not meet residency requirements as she never really lived there but visited for months at a time when she was young.

You'll need to wait and see if there is further challenge and legislation changes. The rules Canada has proposed are somewhat similar to the US (although more lenient). It will be interesting to see what happens.

 

[hawk39]

I was hoping there would be no such stipulation. I read somewhere that it may get challenged still. We do have many ties to Canada and travel there all the time, however my wife will not meet residency requirements as she never really lived there but visited for months at a time when she was young.

The judge's ruling completely removed the generational limit; in theory, this could retroactively make anyone with a Canadian ancestor that did not renounce their citizenship a citizen. The 2009 Act basically did this with 3(1)(b) and (g), but with the built-in generational limit stopping it from going beyond the first generation and getting out of control from the potential piggybacking. Most countries have similar rules as @scylla mentioned to prevent such abuse.

So far, the proposal states 'physical presence' as opposed to established residency, so visits might potentially count towards the cumulative 1095 days; I'm sure when the amendment is finalized, there will be a clear definition of what constitutes physical presence to demonstrate a substantial connection. Like any claim, the applicant will have to provide evidence, so showing evidence of residency (such as school records and mortgage statements) would be much easier than requesting years of passport and customs records for cumulative visits.

 

[subzer0]

This is extremely confusing. So if someone who wasn't eligible due to 2009 law prior to the ruling applied on January 1st of 2024. What is the government doing with those applications now?

 

[Simba112]

The judge's ruling completely removed the generational limit; in theory, this could retroactively make anyone with a Canadian ancestor that did not renounce their citizenship a citizen. The 2009 Act basically did this with 3(1)(b) and (g), but with the built-in generational limit stopping it from going beyond the first generation and getting out of control from the potential piggybacking. Most countries have similar rules as @scylla mentioned to prevent such abuse.

So far, the proposal states 'physical presence' as opposed to established residency, so visits might potentially count towards the cumulative 1095 days; I'm sure when the amendment is finalized, there will be a clear definition of what constitutes physical presence to demonstrate a substantial connection. Like any claim, the applicant will have to provide evidence, so showing evidence of residency (such as school records and mortgage statements) would be much easier than requesting years of passport and customs records for cumulative visits.

Then there'll be another litigation if they implement "Physical presence Criteria" in my opinion. Ideally is to remove 2 tier system..

 

[hawk39]

This is extremely confusing. So if someone who wasn't eligible due to 2009 law prior to the ruling applied on January 1st of 2024. What is the government doing with those applications now?

Technically, the generational limit is still in effect because the judge suspended her ruling for six months. My guess would be that IRCC could be processing them and holding off on sending citizenship certificates until the suspension expires, setting them aside, or they could be returning them with the processing fee refunded; the first option would seem to be the fairest as it wouldn't create a backlog.

 

[hawk39]

Then there'll be another litigation if they implement "Physical presence Criteria" in my opinion. Ideally is to remove 2 tier system..

How do you believe it is unfair if a substantial connection test is required? The change mostly, if not all, affects first-generation born abroad parents born after 1977 who were raised in Canada as minors and moved abroad as adults for career or family; they already have a substantial connection to Canada. A citizen who doesn't have a substantial connection nor intention to establish a connection is a strong indicator that they view their citizenship as just a mere convenience, which is what caused the creation of the first-generation limit in the first place.

 

[Simba112]

How do you believe it is unfair if a substantial connection test is required? The change mostly, if not all, affects first-generation born abroad parents born after 1977 who were raised in Canada as minors and moved abroad as adults for career or family; they already have a substantial connection to Canada. A citizen who doesn't have a substantial connection nor intention to establish a connection is a strong indicator that they view their citizenship as just a mere convenience, which is what caused the creation of the first-generation limit in the first place.

I did not point to how system is unfair but I believe they need to get rid of 2 two system. Same way it happened from the original litigation, someone else will do the same if legislative framework include some restrictions. Next move is what i am interesting to see.....

 

[armoured]

The change mostly, if not all, affects first-generation born abroad parents born after 1977 who were raised in Canada as minors and moved abroad as adults for career or family

Why born after 1977? Seems to me the limit also affected those born before then as well.

 

[armoured]

I did not point to how system is unfair but I believe they need to get rid of 2 two system. Same way it happened from the original litigation, someone else will do the same if legislative framework include some restrictions. Next move is what i am interesting to see.....

Someone will challenge, sure. But keep in mind - the 2009 legislation was in force for ~15 years. And even then it was not a given that the challenge would succeed, nor that the government wouldn't appeal.

So it would be foolish to believe that it's inevitable it would not be accepted, or that it would happen in a timeframe which would be meaningful to those affected.

(If the amendments to the law go ahead as expected, I'd have been covered - but overtaken by events as we moved to Canada with children in the interim. I regret that I didn't try to challenge the law / join the suit in some way, but the plan was to return to Canada anyway)

That said: I'd argue that one alternative would be to have the law amended along the lines you suggest, but to require the physical presence test for ALL children of citizens born abroad (i.e. no difference for Canadians born in Canada/out of Canada). Reality is that this would still mostly affect Canadians born abroad (exceptions mostly being those born in Canada 'by accident' / parents visiting). That change would almost certainly meet any fairness test.

The reason I think this won't happen is that a) it won't be popular as imposing more restrictions but arguably more importantly (from government perspective) b) would make administration MUCH more complicated for IRCC - they'd have to require residence information for ALL cases of children born to Canadians abroad.

And in practice, again, since most citizens born in Canada continue to live in Canada for 3+ years, it would be only mildly more restrictive. Therefore the primary 'policy' reason to do it this way would be to meet legal fairness tests, and I'm not sure the fairness requirements would be sufficiently strong to result in a court ruling as with the 2009 Act. (I mean I do not know, it's a legal quesiton that seems to me not at all clear)

 

[subzer0]

The government said they would not appeal the ruling.


The planned amendment by Parliament is a non-consecutive three-year residency test for the parent before the birth of the child for children born after the 2009 Act was enacted. This means that your wife needed to have lived in Canada for at least 1095 days at any time before your child was born in order for that child to be eligible for citizenship by descent.

Unfortunately, she still won't hit 1095 days. That is basically 3 years. Unless you live there it is difficult to meet. One side of her family all live in Canada and we visit them frequently. Her Canadian father does too, in fact he never naturalized in the US where he lives. In a sense my kid could very well decide to live there when he is all grown up. One can argue that is not good enough reason to be awarded the citizenship but the fact that there is family there whom we visit a lot, own property up there and thinking about our family member's future residency in Canada probably should account for something. Heck, he could not even get a PR status without us (his mother in particular) meeting the residency requirements in Canada. If he had a clear path to the PR status I'd be content with that.

 

[Copingwithlife]

I was hoping there would be no such stipulation. I read somewhere that it may get challenged still. We do have many ties to Canada and travel there all the time, however my wife will not meet residency requirements as she never really lived there but visited for months at a time when she was young.

Damned if you do , damned if you don’t
Basically free for all . No rules . No stipulations
PPC all the way