Update to Bill C-71, the legislation to fix citizenship by descent

[hawk39]

https://www.canada.ca/en/immigration-refugees-citizenship/news/2025/03/canada-to-request-a-further-extension-to-maintain-first-generation-limit-to-canadian-citizenship-by-descent.html

It seems C-71, the act to fix citizenship by descent, has stalled and will not meet the March 19th deadline extension by the judge. The Minister is going to ask for a 12-month extension.

If granted, this means that the first-generation limit will still be in effect; however, he is also approving an interim measure to consider discretionary grants of citizenship under 5(4) for those affected by the first-generation limit. This does not mean that any second and subsequent generation applicants can simply apply and be given citizenship; only those that meet the criteria stated under 5(4) will be considered:

(4) Despite any other provision of this Act, the Minister may, in his or her discretion, grant citizenship to any person to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada.

 

[armoured]

The Globe has an article on this:
https://www.theglobeandmail.com/politics/article-minister-tells-immigration-officials-to-grant-citizenship-rights-to/

It mostly repeats the points elsewhere but - at the very end, as if by accident - it contains some actual useful information:

When the Ontario court ruling comes into effect, it could lead to thousands of people whose parents have never been in Canada automatically qualifying as citizens.

Mr. Miller said that in considering applications from “Lost Canadians” for citizenship, if a “Canadian parent had at least 1,095 cumulative days of physical presence in Canada before their birth or adoption they will be offered consideration for a discretionary grant on a prioritized basis.”

So while anyone can apply (i.e. they do not define which ties by parentage are sufficient to qualify), they're basically going to 'prioritize' only those applications where the (second-gen or more) citizen-parent resided in Canada 1095 days or more.

[To be clear, the implication is that those applications that are not 'prioritized' will basically not have a chance of being approved / will be de-prioritized, probably until a new government deals with the issue in 12 months or more. Note, I'm referring to apps that are specifically based on the second-generation bit - whatever reasons they used to approve apps on other criteria like statelessness presumably unchanged.]

Caveat of course that this is just my read of the news.

 

[MJSPARV]

I’ve personally been interested in this as one of our kids got her citizenship by descent while the other two were born in Canada and it has really bothered me that a child born outside Canada to a Canadian citizen, and who moved to Canada at 1 year old, would not be able to pass on her citizenship if her kids were born outside Canada. It felt like she is a lesser Canadian than her siblings. While I’d like to see the conclusion of this with a clearly rewritten law sooner rather than later, at least the physical presence of 1095 days is a good start! It’s all told a fairly low bar while also making clear that there has to be some connection to Canada.

 

[armoured]

I’ve personally been interested in this as one of our kids got her citizenship by descent while the other two were born in Canada and it has really bothered me that a child born outside Canada to a Canadian citizen, and who moved to Canada at 1 year old, would not be able to pass on her citizenship if her kids were born outside Canada. It felt like she is a lesser Canadian than her siblings.

What you describe is basically my story: parents moved back to Canada before I was a year old, only one of my family and siblings with any non-Canadian background - for generations. First left Canada on govt service, but wasn't with government when I had a kid. Have now moved back to Canada and my child born abroad got citizenship after the PR process, but I was livid.

While I’d like to see the conclusion of this with a clearly rewritten law sooner rather than later, at least the physical presence of 1095 days is a good start! It’s all told a fairly low bar while also making clear that there has to be some connection to Canada.

Same. I'd've passed this test easily.

It's worth nothing that despite all the 'birthright citizenship' noise in the USA, they apply their 'physical presence' test to ALL citizens: in order to pass on citizenship to children, even USA-born parents have to have spent [whatever it is they require] in USA.

My guess* is that this will probably eventually happen in Canada, too: that someone will challenge on basis that applying this physical presence test only to those born abroad is discriminatory, and still creates second-class citizenship.

Granted, most kids born in Canada will end up spending eg 1095 days in Canada, so it wouldn't be a demanding test.

*I could also imagine courts coming to conclusion that it would be quite onerous administratively and only a tiny discriminatory impact in practice, so my guess could easily be wrong. It's also a harder case to make in terms of standing, i.e. actually finding people who've been 'harmed'. And all theoretical until they actually change the law to deal with the court decision. But it still stands out as an actually discriminatory approach if they don't apply to everyone.

[I don't actually care about this 'discrimination' - I think it's a reasonable shortcut for administrative overhead, that only slightly benefits a very small subclass of people that were born in Canada and didn't reside here for long. That group may not be 'deserving' per se, but I can live with that against the administrative overhead it would cost everyone.

 

[MJSPARV]

What you describe is basically my story: parents moved back to Canada before I was a year old, only one of my family and siblings with any non-Canadian background - for generations. First left Canada on govt service, but wasn't with government when I had a kid. Have now moved back to Canada and my child born abroad got citizenship after the PR process, but I was livid.



Same. I'd've passed this test easily.

It's worth nothing that despite all the 'birthright citizenship' noise in the USA, they apply their 'physical presence' test to ALL citizens: in order to pass on citizenship to children, even USA-born parents have to have spent [whatever it is they require] in USA.

My guess* is that this will probably eventually happen in Canada, too: that someone will challenge on basis that applying this physical presence test only to those born abroad is discriminatory, and still creates second-class citizenship.

Granted, most kids born in Canada will end up spending eg 1095 days in Canada, so it wouldn't be a demanding test.

*I could also imagine courts coming to conclusion that it would be quite onerous administratively and only a tiny discriminatory impact in practice, so my guess could easily be wrong. It's also a harder case to make in terms of standing, i.e. actually finding people who've been 'harmed'. And all theoretical until they actually change the law to deal with the court decision. But it still stands out as an actually discriminatory approach if they don't apply to everyone.

[I don't actually care about this 'discrimination' - I think it's a reasonable shortcut for administrative overhead, that only slightly benefits a very small subclass of people that were born in Canada and didn't reside here for long. That group may not be 'deserving' per se, but I can live with that against the administrative overhead it would cost everyone.

As an American citizen who was born and lived there for the first 28 years of my life before moving to Canada, yep I had to do a heck of a lot to prove I’d spent the 8 years, 5 of which were over the age of 14 or whatever it is in order to transmit citizenship to my kids born in Canada. All so I can properly file my taxes in the US as legally obligated and so we can visit family without getting questioned about why I’m American and my kids aren’t. Fun times.

I hope that Canada will keep the burden of ties to Canada on the lighter end (ie something like the 1095 days).

I’m sorry you had to go through the PR to citizenship route for your child! Fingers crossed that sort of insanity will be fixed for good soon.

(As a side note, I was essentially entirely off this forum since shortly after I got my PR in 2021 so when I came back to do my citizenship application, I was happy to see you’re still here giving great advice to all and sundry!)

 

[armoured]

I’m sorry you had to go through the PR to citizenship route for your child! Fingers crossed that sort of insanity will be fixed for good soon.

I was one of the lucky ones,in the sense that the plan had been to return with my family to Canada anyway, and one extra person in the app wasn't a big deal. There are lots of worse stories.

But there were several years in there where we did not feel lucky, and I was very aware - angry at the government of the day - that after all, I really did have 'second class citizenship.' After serving that country abroad.

And I should note - it seemed a benign political/security environment most of that time. We were lucky with timing.

 

[hawk39]

The Globe has an article on this:
https://www.theglobeandmail.com/politics/article-minister-tells-immigration-officials-to-grant-citizenship-rights-to/

It mostly repeats the points elsewhere but - at the very end, as if by accident - it contains some actual useful information:



So while anyone can apply (i.e. they do not define which ties by parentage are sufficient to qualify), they're basically going to 'prioritize' only those applications where the (second-gen or more) citizen-parent resided in Canada 1095 days or more.

[To be clear, the implication is that those applications that are not 'prioritized' will basically not have a chance of being approved / will be de-prioritized, probably until a new government deals with the issue in 12 months or more. Note, I'm referring to apps that are specifically based on the second-generation bit - whatever reasons they used to approve apps on other criteria like statelessness presumably unchanged.]

Caveat of course that this is just my read of the news.

The article is behind a paywall

 

[armoured]

The article is behind a paywall

Take my word for it, the rest mostly reiterates what's been covered elsewhere. It really is that last para that says something new.

 

[hawk39]

Take my word for it, the rest mostly reiterates what's been covered elsewhere. It really is that last para that says something new.

I managed to stop the paywall from loading and read the article. You forgot to mention that the judge only gave a four-week extension instead of the requested 12 months, so this will have to be solved by next month now.

In her ruling on Thursday, Justice Jasmine Akbarali granted the government just a four-week extension.

If I remember correctly, the holdup is because the opposition does not want the 1095 days to be cumulative over the parent's entire life, but within a certain period like the rolling 5 years pertaining to the residency obligation for a naturalization application. To me, that seems very reasonable as it would stop those that come over as infants, stay three years, then go back to their birth countries until they are adults and have their own children; not much of a substantial connection there.

 

[armoured]

I managed to stop the paywall from loading and read the article. You forgot to mention that the judge only gave a four-week extension instead of the requested 12 months, so this will have to be solved by next month now.

If I left this out, mea culpa. I'd like to swear it wasn't there but I might have missed it. (I still find the phrasing and structure in the article confusing as it has the government making a motion for a twelve month extension, and the judge giving only four weeks, but it doesn't make clear that this was the judge turning down the government's request / shortening it - although I think that's the only interpretation, they present the information about the arguments each side was making out of order with the decision).

Anyway, as a way of paying for my sin of omission, here's the decision from Thursday.

It sets out a timeline for the government to provide more detail on whatever 'interim measures' it will implement before the Judge considers any further extensions. So it seems to be set up for another round of extensions, but with the government having to make some more serious steps to make the policy clear and how it will implement them.

So basically we get to replay this whole thing in about another month. If I understood correctly.

https://www.canlii.org/en/on/onsc/doc/2025/2025onsc1657/2025onsc1657.html

If I remember correctly, the holdup is because the opposition does not want the 1095 days to be cumulative over the parent's entire life, but within a certain period like the rolling 5 years pertaining to the residency obligation for a naturalization application. To me, that seems very reasonable as it would stop those that come over as infants, stay three years, then go back to their birth countries until they are adults and have their own children; not much of a substantial connection there.

First, I'd just say that this idea that people are 'just coming over to have a child and then staying three years' as a way to get citizenship - and pass it on to their children is absurd. I understand entirely the idea of limiting second-gen transmission of citizenship to those with some real ties; but this is getting rather far from the base complaint that it's some kind of 'birth tourism' plan - tourism that lasts three years is not really 'tourism'. And again - that child already has citizenship from birth, how many parents are really trying that hard to make sure that their child can also pass on citizenship to their children (without returning to Canada, which as citizens that kid can do anyway)?

It rather stretches the logic beyond recognition, IMHO.

Personally I would absolutely oppose that proposal on the substance, too, as limiting it just to the five year period effectively imposes a VERY strict residency requirement upon the parent - akin to those that a non-citizen would have to do in order to get citizenship and be naturalized! If that's what they're discussing, I think it's outrageous. They may as well require everyone born abroad to 'naturalize' instead, that's pretty much where this is going.

To take my own case, if I could've renounced as a minor/young adult, been sponsored, and then subject to even a ten-year or more residency requirement as an adult, I'd have been a naturalized citizen and not subject to any restrictions. It undermines the whole basis upon which this case was brought, and I'd see it as outright discriminatory. The only basis on which that would not be discriminatory (IMO) is if ALL Canadians were subject to this requirement - and I think if it were considered in that light, it'd be an obvious non-starter (and immediately challenged in court by the same legal team).

Now, that's IF that was the actual proposal by the opposition (whom I think we can name here as the Conservatives) - I don't know that. If it was, it's awful and seems to me grandstanding (i.e. they were tossing out a 'compromise' that wasn't one at all, in order to have one more thing to bring up in an election).

It seems to me there's a much simpler approach that gets partway to what they were driving at (i.e. not having people just count time as infants). USA does this fairly simply by requiring a certain number of years, of which a certain number must be above a certain age (like 14 or 16 I think). Hey, if we want to be strict, make it three years cumulative above the age of 18 - strict but at least logical.

This avoids catching the hypothetical case of, say, a Canadian who lives their entire life (except the actual birth), graduates a Canadian university, and then takes their first job or goes to graduate school abroad, and has a kid as little as two years after leaving Canada. With this 'three years in last five' jive, that person doesn't have similar rights to a naturalized citizen who may have only lived the statutory three years in Canada to get citizenship? No way - clearly discriminatory.

And if someone doesn't think it's discriminatory - think how fair everyone would think it if this three-years-in-five requirement were applied to all births abroad, including of naturalized and natural-born Canadians. I think they'd scream bloody murder, and rightfully so.

 

[hawk39]

It sets out a timeline for the government to provide more detail on whatever 'interim measures' it will implement before the Judge considers any further extensions. So it seems to be set up for another round of extensions, but with the government having to make some more serious steps to make the policy clear and how it will implement them.

The judge is asking for evidence to warrant further extensions; I think the best evidence the Minister can give is if the generational limit is fully invalidated with her order, then an unknown number of people will become Canadian (not just the 100,000+ over 5 years as stated by the parliamentary budget officer), and that could have unknown or potentially overloading effects on the Canadian social system and economy, especially if these people come en masse from less-developed countries. It seems even the judge realized this, as she was quoted in another Globe article:

Remarking on the federal government’s lack of “legislative diligence” in December, the judge said that allowing the court ruling “to take effect without replacement legislation would cause a legislative gap that would result in an unclear and inconsistent application of citizenship law and an unknowable number of people becoming automatic Canadian citizens, some of whom may not wish to become Canadians.”

First, I'd just say that this idea that people are 'just coming over to have a child and then staying three years' as a way to get citizenship - and pass it on to their children is absurd. I understand entirely the idea of limiting second-gen transmission of citizenship to those with some real ties; but this is getting rather far from the base complaint that it's some kind of 'birth tourism' plan - tourism that lasts three years is not really 'tourism'. And again - that child already has citizenship from birth, how many parents are really trying that hard to make sure that their child can also pass on citizenship to their children (without returning to Canada, which as citizens that kid can do anyway)?

It rather stretches the logic beyond recognition, IMHO.

Personally I would absolutely oppose that proposal on the substance, too, as limiting it just to the five year period effectively imposes a VERY strict residency requirement upon the parent - akin to those that a non-citizen would have to do in order to get citizenship and be naturalized! If that's what they're discussing, I think it's outrageous. They may as well require everyone born abroad to 'naturalize' instead, that's pretty much where this is going.

To take my own case, if I could've renounced as a minor/young adult, been sponsored, and then subject to even a ten-year or more residency requirement as an adult, I'd have been a naturalized citizen and not subject to any restrictions. It undermines the whole basis upon which this case was brought, and I'd see it as outright discriminatory. The only basis on which that would not be discriminatory (IMO) is if ALL Canadians were subject to this requirement - and I think if it were considered in that light, it'd be an obvious non-starter (and immediately challenged in court by the same legal team).

Now, that's IF that was the actual proposal by the opposition (whom I think we can name here as the Conservatives) - I don't know that. If it was, it's awful and seems to me grandstanding (i.e. they were tossing out a 'compromise' that wasn't one at all, in order to have one more thing to bring up in an election).

It seems to me there's a much simpler approach that gets partway to what they were driving at (i.e. not having people just count time as infants). USA does this fairly simply by requiring a certain number of years, of which a certain number must be above a certain age (like 14 or 16 I think). Hey, if we want to be strict, make it three years cumulative above the age of 18 - strict but at least logical.

This avoids catching the hypothetical case of, say, a Canadian who lives their entire life (except the actual birth), graduates a Canadian university, and then takes their first job or goes to graduate school abroad, and has a kid as little as two years after leaving Canada. With this 'three years in last five' jive, that person doesn't have similar rights to a naturalized citizen who may have only lived the statutory three years in Canada to get citizenship? No way - clearly discriminatory.

And if someone doesn't think it's discriminatory - think how fair everyone would think it if this three-years-in-five requirement were applied to all births abroad, including of naturalized and natural-born Canadians. I think they'd scream bloody murder, and rightfully so.

Without some sort of concrete time frame to show genuine Canadian connection, I believe it will just create a class of Canadian citizens that have and may still exist, Canadians of Convenience. Don't forget about the event and the aftermath (cost, public outrage) that caused the government to take the generational limit approach. There have been multiple threads here of people stating that they intend to leave Canada and go back to their home country or go to the US after getting their citizenship, so the scenario is not so absurd.

I think that substantial connection to be shown should be just that: "substantial". A contribution to Canada should be shown, from simply paying your taxes, or going above and beyond by serving as a Crown servant. Going to a Canadian school, receiving childcare benefits, visiting for month for 36 years (which I would benefit from) or otherwise leeching off of the system for three years should not count as a substantial connection.

In the grand scheme of things, no solution is perfect; there will always be dissenters who will claim that the solution is discriminatory to them and that it is a Charter violation. And they will be right because the Charter is so simply worded that it can be interpreted in multiple ways. Judicial tests will help narrow it down, and only the Federal Supreme Court will have the final say. Unfortunately, this case did not go to the federal court, so no one will know how it would have turned out. If the US legislation regarding age-based residency and citizenship by descent were to be integrated into C-71 and then it was tested against the Charter, it too would probably be found in violation for the same reasons.

Here's Conservative MP Greg McLean's response to C-71, and it's transcript:

Transcript

Here is an article by a former director of IRCC, Andrew Griffith, calling for the concrete time frame:
https://policyoptions.irpp.org/magazines/july-2024/never-ending-citizenship/

And here is a transcript from a Senate Committee where Mr. Griffith provided testimony. The second link is where he began speaking:
Senate Committee
Where Mr. Griffith Begins Addressing Senate

We're going to have to agree to disagree here.

 

[Seym]

Here's Conservative MP Greg McLean's response to C-71, and it's transcript:

The MP here argues for "consecutive" 1095 days instead of "cumulative over a lifetime".
Is consecutive here understood as "3 years in a longer period but shows that the citizen lived in Canada", similar to the physical presence requirement for naturalized Canadians, or an strict consecutive period that any weekend in US will restart?
I suppose (or at least I hope) the former, but couldn't find the "3 out of 5 years" or any other lax definition in McLean's speech, or in the interventions of the CPC immigration critic.
https://openparliament.ca/bills/44-1/C-71/?singlepage=1

 

[armoured]

Without some sort of concrete time frame to show genuine Canadian connection, I believe it will just create a class of Canadian citizens that have and may still exist, Canadians of Convenience. Don't forget about the event and the aftermath (cost, public outrage) that caused the government to take the generational limit approach. There have been multiple threads here of people stating that they intend to leave Canada and go back to their home country or go to the US after getting their citizenship, so the scenario is not so absurd.

I think that substantial connection to be shown should be just that: "substantial". A contribution to Canada should be shown, from simply paying your taxes, or going above and beyond by serving as a Crown servant. Going to a Canadian school, receiving childcare benefits, visiting for month for 36 years (which I would benefit from) or otherwise leeching off of the system for three years should not count as a substantial connection.

In the grand scheme of things, no solution is perfect; there will always be dissenters who will claim that the solution is discriminatory to them and that it is a Charter violation.

I think this can be boiled down to a very simple test on whether it is discriminatory or not, and attempts to wave it away by saying it's complicated, everything is a little bit discriminatory, etc, are a weak sauce indeed. Note, I'm starting by accepting the concept that there is some need to maintain some substantial connection criteria or avoid/limit "Canadians of convenience" - and as a practical matter, that some deference is needed to ease of decision making / limiting administrative burden (costs). We might disagree on specific policies, but I'm not calling for removal of all generational limits or refusing any consideration of limiting 'citizenship of convenience.

In the most simple terms, I think the problem is this: this proposed three-in-last-five requirement applies exclusively to second generation Canadians, regardless of the extent of their actual connections to Canada; there is nothing they can actually do - short of renouncing their citizenship and re-applying anew ('re-naturalizing') - without being subjected to (effectively) the same residency test (three-in-five) that new citizens are required to meet. This is truly second-class citizenship, and applied only to one group, based on illogical criteria - again, no amount of 'connection to Canada' can 'cure' this defect - short of effectively being required to reside in Canada (let's face it, three-in0-last-five is basically a requirement to live in Canada now).

It's patently discriminatory, given that other classes of citizen (natural born and naturalized) are not required to meet any test of connection to Canada - whatsoever. Born in Canada and leave the next day: pass on citizenship. Naturalize and leave the next day (after receiving your oath, that is, ignoring for now that one can submit one's citizenship application, leave, and return only for the oath). Neither of these classes of citizenship need to meet any test such as you proposed, like paying taxes, going above and beyond, nothing. (Leaving aside the points that you've identified as 'leeching', a phrasing I think the courts would frown upon).

This can't be waved away by simply saying 'no scheme is perfect'; it's closer to punitive, for something the second-gen citizen had no control over (being abroad) - it comes close to attaintment.

If you / the government / whoever thinks the issue (citizenship of convenience and related) so serious that it must be addressed, then propose and implement one that addresses those 'citizens of convenience' who severed any ties to Canada at some point, including after being born in Canada or naturalizing. If one thinks the requirements for naturalization need to include much longer residence - fine, then propose that; or include an ongoing residence requirement to naturalized citizens in order to pass on citizenship - fine, propose that. If we think the problem is 'birthright tourism' (a misnomer in the Canadian context in that it's not a constitutional or charter right, and can be changed by law), then the government should change the legislation around that - and not fiddle about on the margins with what happens to the children of these citizens twenty years or more down the road. And in each case, bear the political costs of doing so.

Otherwise it's just going after second-gen citizens alone and exclusively, because it's convenient - convenient because imposing any such tests or serious restrictions on natural-born or naturalized citizens are beyond the political fortitude of the government of the day. And that is precisely where the courts have a role: is evaluating such policies against basics of fairness (as expressed in the Charter) and seeing whether some groups are being singled out for different treatment because its 'convenient' politically. This is what the courts are for.

Now note, I don't think having some restrictions for second-gen citizens is unreasonable, nor that it's impossible to have some such restrictions not applied to the other two classes of citizens - if a reasonable case can be made that they'd be administratively burdensome and not contribute much to achieving the policy goals. I think the charter does allow for such trade-offs.

But this three-in-last-five jive does not meet any reasonable fairness test without also applying to the other two classes of citizen - and it's not just an administrative burden issue, but outright singling the other class out.

[Side note as @Seym contributed while I was writing: if it is in fact only a requirement for three consecutive years, I have no principled objection to that. It's three in LAST five that I think is punitive, amounting to a full-on residency requirement akin to qualifying for citizenship anew.]

And they will be right because the Charter is so simply worded that it can be interpreted in multiple ways. Judicial tests will help narrow it down, and only the Federal Supreme Court will have the final say. Unfortunately, this case did not go to the federal court, so no one will know how it would have turned out. If the US legislation regarding age-based residency and citizenship by descent were to be integrated into C-71 and then it was tested against the Charter, it too would probably be found in violation for the same reasons.

I think that falls into the rhetorical trap of criticizing the Charter out of context because it is worded broadly, and not paying attention to the jurisprudence. My layman's comment on it is that I think the Charter itself and the jurisprudence (decisions of the court) allows for considerable deference being given to cost and administrative burden being weighed against the policy goals/benefits. This doesn't mean I think all Charter cases were decided correctly or acc to my opinions, of course - but neither it is true that the Charter can be used to justify anything. (I admit you didn't say that exactly, mind - it's a general comment)

That is, 'reasonableness' is indeed considered by the courts, and there's no absolute birthright or other right to citizenship explicitly laid out in the Charter (I think?). A government can change the law on citizenship to cover the other two classes of citizen or even limit them - but they're afraid to. A wag might say that the previous policy was implemented because the government felt it had to be 'mean' to someone, and just chose an easy target, instead of addressing the issue.

We're going to have to agree to disagree here.

Yes.

Thanks for the references you provided, I will take a look at them.