Citizensip by Descent from parent with retroactive citizenship

[Bob2]

My mother received Canadian citizenship retroactive to 1947 due to the changes in the Citizenship Act that took place in 2015.
She was born in the USA to a Canadian mother.
I was born in the USA in 1962. Does the fact that her citizenship is retroactive to 1947 mean that I can apply to citizenship?

 

[zardoz]

My mother received Canadian citizenship retroactive to 1947 due to the changes in the Citizenship Act that took place in 2015.
She was born in the USA to a Canadian mother.
I was born in the USA in 1962. Does the fact that her citizenship is retroactive to 1947 mean that I can apply to citizenship?

After putting in your information to the Am I a Canadian Citizen? tool.


You are probably not a Canadian citizen.

Based on the answers you gave us, you are most likely not a Canadian citizen.

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[hawk39]

My mother received Canadian citizenship retroactive to 1947 due to the changes in the Citizenship Act that took place in 2015.
She was born in the USA to a Canadian mother.
I was born in the USA in 1962. Does the fact that her citizenship is retroactive to 1947 mean that I can apply to citizenship?

Sorry, but you are considered the second generation born abroad and are ineligible for citizenship by descent. The fact that your mother's citizenship was restored retroactively does not help you because of the first-generation limit imposed by the previous legislation that restored your mother's citizenship.

 

[CVURIBE]

What’s the point of retroactive citizenship then?

According to this legislative summary of Bill C-37, published in the library of parliament, the whole point of retroactivity is precisely to grant citizenship to other Canadians who should’ve been citizens by descent:

https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/392LS591E#bornabroad

More specifically, section B of the Analysis reads that:
“In general terms, Bill C-37 ensures that citizenship is restored to “lost Canadians” retroactively, either to the time it was lost, or for those who never have been citizens in the first place, to birth. These retroactive provisions fill in “gaps” of time in the past when lost Canadians were not citizens. Legally recognizing the continuous citizenship of Canadians is important for those who had children born abroad. A person must be a Canadian citizen at the time of his or her child’s birth in order to pass citizenship by descent to the child born abroad.”

As to the generation issue, my understanding is that it was only effective AFTER 2009 and not retroactive for those “lost Canadians” who had children before 2009 and who could’ve passed citizenship to second and subsequent generations.

Therefore, my opinion is that Bob2 has a solid case to claim Canadian citizenship... BUT I might be mistaken. Maybe someone can clarify this.

 

[hawk39]

What’s the point of retroactive citizenship then?

According to this legislative summary of Bill C-37, published in the library of parliament, the whole point of retroactivity is precisely to grant citizenship to other Canadians who should’ve been citizens by descent:

https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/LegislativeSummaries/392LS591E#bornabroad

More specifically, section B of the Analysis reads that:
“In general terms, Bill C-37 ensures that citizenship is restored to “lost Canadians” retroactively, either to the time it was lost, or for those who never have been citizens in the first place, to birth. These retroactive provisions fill in “gaps” of time in the past when lost Canadians were not citizens. Legally recognizing the continuous citizenship of Canadians is important for those who had children born abroad. A person must be a Canadian citizen at the time of his or her child’s birth in order to pass citizenship by descent to the child born abroad.”

As to the generation issue, my understanding is that it was only effective AFTER 2009 and not retroactive for those “lost Canadians” who had children before 2009 and who could’ve passed citizenship to second and subsequent generations.

Therefore, my opinion is that Bob2 has a solid case to claim Canadian citizenship... BUT I might be mistaken. Maybe someone can clarify this.

For reference, here is the current Canadian citizenship act and here is the easier-to-read version from the Canadian government website.

Based on what little information Bob2 provided, his grandmother was probably born in Canada, but moved to the US, married, then had Bob2's mother before the commencement of Canadian citizenship in 1947. However even though it seems that his grandmother got citizenship in 1947, his mother was never eligible for Canadian citizenship because the 1947 Act did not allow married women to pass on citizenship to their children.

Bob2's mother became a citizen under paragragh 3(1)(q), which is if the person was born outside Canada before 1947 and did not become a citizen to a parent who did became a citizen in 1947.

Bob2 would be described under paragraph 3(1)(g), which is the first generation born outside of Canada but was never eligible for citizenship, because his mother was still not eligible for citizenship when he was born in 1962.

If you look at the first generation limit under section 3(3) and 3(3)(a), it says:

3(3) "Paragraphs (1)(b), (f) to (j), (q) and (r) do not apply to a person born outside Canada [a] if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs"
​

Now, if you were to interpret that section to work with Bob2's situation, it would read like this:

'Paragraphs (1)(b), (f) to (j) [f,g,h,i,j], (q) and (r) [does] not apply to a person born outside Canada if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs'​

which I interpret as 'because Bob2 is described under 3(1)(g), he is not a citizen because his mother is a citizen under 3(1)(q).

So to me, as I interpret the law, the generation limit supersedes retroactivity. If it was not meant to be interpreted this way, then it would not have been explicitly stated in the Citizenship act.

I did not find any mention of retroactivity in conjunction with second and subsequent generations in that analysis; even in section B that explains the need for retroactivity, the connection is not made between the two. So I believe it was understood that retroactivity was not meant to a pathway for second and subsequent generations to acquire citizenship by descent.

​

 

[CVURIBE]

For reference, here is the current Canadian citizenship act and here is the easier-to-read version from the Canadian government website.

Based on what little information Bob2 provided, his grandmother was probably born in Canada, but moved to the US, married, then had Bob2's mother before the commencement of Canadian citizenship in 1947. However even though it seems that his grandmother got citizenship in 1947, his mother was never eligible for Canadian citizenship because the 1947 Act did not allow married women to pass on citizenship to their children.

Bob2's mother became a citizen under paragragh 3(1)(q), which is if the person was born outside Canada before 1947 and did not become a citizen to a parent who did became a citizen in 1947.

Bob2 would be described under paragraph 3(1)(g), which is the first generation born outside of Canada but was never eligible for citizenship, because his mother was still not eligible for citizenship when he was born in 1962.

If you look at the first generation limit under section 3(3) and 3(3)(a), it says:

3(3) "Paragraphs (1)(b), (f) to (j), (q) and (r) do not apply to a person born outside Canada [a] if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs"
​

Now, if you were to interpret that section to work with Bob2's situation, it would read like this:

'Paragraphs (1)(b), (f) to (j) [f,g,h,i,j], (q) and (r) [does] not apply to a person born outside Canada if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs'​

which I interpret as 'because Bob2 is described under 3(1)(g), he is not a citizen because his mother is a citizen under 3(1)(q).

So to me, as I interpret the law, the generation limit supersedes retroactivity. If it was not meant to be interpreted this way, then it would not have been explicitly stated in the Citizenship act.

I did not find any mention of retroactivity in conjunction with second and subsequent generations in that analysis; even in section B that explains the need for retroactivity, the connection is not made between the two. So I believe it was understood that retroactivity was not meant to a pathway for second and subsequent generations to acquire citizenship by descent.

​

Thank you hawk39! Your analysis does make a lot of sense.

My situation is the following, and please correct me if I am wrong...

My father was born in the USA, in wedlock to a Canadian mother in 1949, so we was not a Canadian citizen at birth according to the law back then. The law changed in 1977, and a few years after that he applied for, and was granted Canadian citizenship. He became a citizen in 1990.
In 2009, the law changed again and gave him retroactive citizenship back to his birth.

I was born in 1976 outside of Canada.

HOWEVER, according to the law, I am NOT a citizen because I’d be second generation born abroad.

Does this make sense?

 

[hawk39]

Thank you hawk39! Your analysis does make a lot of sense.

My situation is the following, and please correct me if I am wrong...

My father was born in the USA, in wedlock to a Canadian mother in 1949, so we was not a Canadian citizen at birth according to the law back then. The law changed in 1977, and a few years after that he applied for, and was granted Canadian citizenship. He became a citizen in 1990.
In 2009, the law changed again and gave him retroactive citizenship back to his birth.

I was born in 1976 outside of Canada.

HOWEVER, according to the law, I am NOT a citizen because I’d be second generation born abroad.

Does this make sense?

It seems like your father applied for the special grant of citizenship that was implemented with the 1977 Act; known as 5(2)(b), it attempted to give citizenship to those that were previously ineligible due to the wedlock restriction of the previous Act. However, since it was a grant, it was the same as being naturalized, so it was not retroactive to their date of birth.

In order for a child to be able to be given citizenship by descent from this grant, just like naturalization, the child had to have been born after the fact. So it seems your father was not a Canadian citizen when you were born in 1976, and the earliest he could have applied was 1977.

Paragraph 3(1)(h) of the 2009 Act retroactively converted your father's citizenship from being a grant to being by descent. So today, your father is a citizen as described under 3(1)(h).

I think you would be described under paragraph 3(1)(g), a person who was born before 1977 to a Canadian parent but was not eligible for citizenship at birth (because your father was not a citizen when you were born in 1976). Because of the retroactivity, you father would now be considered a Canadian citizen by descent since his birth; but because of the generation limit, he is of the first and you are of the second. Implying that the generation limit supersedes retroactivity, you are ineligible because you are of the second generation.

If I were to interpret 3(3) with your situation, I believe it would read like this:

'Paragraphs (1)(b), (f) to (j) [f,g,h,i,j], (q) and (r) [does] not apply to a person born outside Canada if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs'
​

Feel free to apply if you think the retroactivity of your father citizenship should not affect not eligibility as someone who was born before 2009 though; that would be the only way to know for sure. I'm not a lawyer or an IRCC officer, so this is only my opinion/interpretation of the law.

 

[CVURIBE]

It seems like your father applied for the special grant of citizenship that was implemented with the 1977 Act; known as 5(2)(b), it attempted to give citizenship to those that were previously ineligible due to the wedlock restriction of the previous Act. However, since it was a grant, it was the same as being naturalized, so it was not retroactive to their date of birth.

In order for a child to be able to be given citizenship by descent from this grant, just like naturalization, the child had to have been born after the fact. So it seems your father was not a Canadian citizen when you were born in 1976, and the earliest he could have applied was 1977.

Paragraph 3(1)(h) of the 2009 Act retroactively converted your father's citizenship from being a grant to being by descent. So today, your father is a citizen as described under 3(1)(h).

I think you would be described under paragraph 3(1)(g), a person who was born before 1977 to a Canadian parent but was not eligible for citizenship at birth (because your father was not a citizen when you were born in 1976). Because of the retroactivity, you father would now be considered a Canadian citizen by descent since his birth; but because of the generation limit, he is of the first and you are of the second. Implying that the generation limit supersedes retroactivity, you are ineligible because you are of the second generation.

If I were to interpret 3(3) with your situation, I believe it would read like this:

'Paragraphs (1)(b), (f) to (j) [f,g,h,i,j], (q) and (r) [does] not apply to a person born outside Canada if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs'
​

Feel free to apply if you think the retroactivity of your father citizenship should not affect not eligibility as someone who was born before 2009 though; that would be the only way to know for sure. I'm not a lawyer or an IRCC officer, so this is only my opinion/interpretation of the law.

Thank You Hawk39!

I’ll let you know what the outcome is if I do decide to apply.