1st Generation Quirk

[hawk39]

A delayed registration of birth abroad could only be made if the person's father was a Canadian citizen at the time of the applicant's birth. In this case, the OP states that his cousin's father was not, since he had lost Canadian citizenship by not retaining by a certain age (originally 22, but apparently changed at some point to 24).

I became a Canadian citizen by making such a delayed registration before 2004. My father was a Canadian citizen when I was born, but lost his Canadian citizenship several years later by becoming a U.S. citizen. My brother, who was born after my father ceased to be Canadian, could not have made a delayed registration of birth abroad. However, he became a Canadian citizen under the changes to the Citizenship Act that took effect in 2009.

Thanks for the correction. I just re-read the 1947 Act and learned that born-abroad children born prior to the commencement of the Act weren't subject to registration but still had to file for retention. I initially thought registration applied to all before and after commencement, but it seems only to those born after commencement. Learn something new every day

 

[Gr8Alan]

If your cousin would go to the "Am I Canadian?" tool (https://na1se.voxco.com/SE/56/amicanadiansuisjecanadien/?lang=en&tui=auto) and enter his information, he will see that he is (probably) not a Canadian citizen. This is due to the facts that you brought to light in your original post. Therefore, there is little chance that your cousin would succeed in his application for a citizenship certificate. Of course, if he wants to spend the $75 to get an official declaration of his status, that's fine.

As to the legal argument about the original Citizenship Act being "unjust", of course it was, especially as regards women. That's not to say that the specific elements that affect your cousin's case (requirement to retain as an adult) would be seen as especially egregious. In any case, IRCC is not going to change the law just for your cousin. He would need to take the matter to court. This has been done in the past, and took many years and many thousands of dollars. Look at some of the cases here:

https://en.wikipedia.org/wiki/Canadian_nationality_law#Judicial_review_of_provisions_of_current_and_previous_citizenship_acts

In answer to the specific question about whether it is necessary for your cousin to get his father's proof of citizenship before applying for his own, I would say no, because it's going to be obvious to IRCC from the information on the application and the birth certificates he will need to provide, that his father is (now) a Canadian citizen. However, if the application is rejected (as I think it will be), he might think it's because he didn't include his father's proof of citizenship, so he may as well do so.

Yes, you see it as I do. the law now is pretty black and white, that whatever happened to strip the citizenship may have been unjust, and so now is reversed and back dated... the fact that the parent is NOW seen as having been a Canadian Citizen all along does NOT have the effect of changing what happened in the 1960's. At that moment, the parent is seen as a non-Canadian, and so the child could NOT be registered, Even if you now want to say that back in the 1960's the parent was (as is seen now) a Citizen and could have registered the child, the current law would rule it out on the second generation abroad rule.... even though at the time it would have been quite ok to register the child as a citizen.

I think Paul, my Cousin, wants to roll the dice and try it out.... but I can't see how he would win. Sure, it may have been decided that the stripping of the parents original citizenship was wrong, but the facts remain that 1) The parent was not a citizen at the time of the birth. 2) If you apply the retrospective element and say he was a citizen at the time looking back.... the on both ground that the birth wasn't registered, and it's now seen as second generation abroad, kills it off.

His case entirely rests on the fact that, retrospectively, his Dad was a citizen at the time (as seen now, but not then), but that he was by procedural problems, prevented from being allowed to register, should allow him to have some leeway. But I can't see it getting up... however "unfair" he might see it as on those grounds.... the current laws are very clear.

 

[Gr8Alan]

Ok, this is my last putting forward of arguments for my cousin, Paul, on the citizenship topic.... after this he can make his own log in and chase it himself.

In Australia we had a series of TV ads for Superannuation savings.... called "Compare the pair". It highlighted the final outcome for two people who started off in exactly the same position, but diverged paths.

So, here is Canadian Citizenship version of "Compare the pair".

The parent is born outside Canada in 1940, to Canadian parents. On the 1st of January 1947, he become a Canadian Citizen with the original Act coming into force. Under the Act at the time he is required to retain Citizenship between the ages of 21 and 22.

He lives a long way from Canada and doesn't know about this requirement.

He marries in 1960 at age 20, and soon after they fall pregnant. With twins.

Now... as chance would have it, it's a long labour when the time comes. One child is born just before midnight, and one just after midnight, on the final day available for him to retain his citizenship.

The first born twin, can become Canadian by registration. The second can not, as the registration can't be made due to lapsed citizenship. This is through my first generation quirk I pointed out... that even though the parent was born outside Canada to Canadian parents, because he became a Citizen at the start of the Act they can pass on Citizenship to their children. He is still a Citizen at the time of the first child, so it can become a citizen under 5(b) of the original Act, but child two can't, as the parent isn't a Citizen at that point.

Now, move forward to the current era, when the Fathers Citizenship, lost at midnight between the twins births is restored, and he becomes a Citizen again under 3(1)(f). He is considered a Citizen for the entire period between 1947 and now. But he was only able to pass on Citizenship to one child... the first born.... even though he is now considered to have been a Citizen when both kids were born, he is prevented from being able to impart Citizenship to the second child by the new first generation limit.

Is that just? The parent has had his Citizenship restored, because it is now recognised that the way the Citizenship was taken away was wrong. But he has not had all his previous rights as a citizen restored. Previously he could and did pass on citizenship, but after restoration, his right to pass on Citizenship has been changed... retrospectively.

Now this is obviously exaggerated for effect. The two children could be born a day, a year, a decade apart. But in any event, one child is a Citizen, the other isn't. What it highlights the change in status for the Father. Previously his children were deliberately given the status under 5(b) of being able to become citizens, which in the above scenario one was. But that's been taken away.


Now, Paul has a few points.

First, he says that he shouldn't be considered second generation.... that the new laws contradict the intentions of how Citizenship was seen when it was first created. His Father is an original Canadian. No one has been a Citizen longer than him, he acquired it on 1 Jan 1947 when it was first created. Paul says he is the first Generation overseas from the point in time that Citizenship actually became possible.

Second, he says that his Father is being treated differently to other lifelong Citizens... his father may not have filed for retention, but now that his citizenship has been restored, his right to pass on Citizenship is different to someone else who did file for retention. He feels this is against the Bill of Rights. Citizens being treated differently, despite being born and acquiring their citizenship at the same time in the same way.

Thirdly, he argues that his Father should be treated the same as any other Overseas born person who has been granted Canadian Citizenship. If you are born anywhere, and later granted citizenship, then you have a child overseas, you can pass on that citizenship. He argues that his Father was granted citizenship on the 1st of January 1947. After all... he wasn't a Citizen the day before... and was born years before that. So he says it was granted on that day. And unlike others who have had Citizenship granted... he is being prevented from passing that Citizenship on.... presumably that's how Section 5(b) was supposed to work, and that's why the section was worded that way.

Finally... he feels that having been born in the 1960's section 3(1)(e) applies to him. If his Father is now Canadian, then he was entitled immediately before 15 Feb 1977 to be a citizen under 5(b)(ii) of the old act.... and that clause is not squashed under the first generation rule in 3(3)... that rule only applies to (b) and (f) to (j)..... not to (e). The time limit shouldn't apply... as he was unable to take advantage in 1977, as his Father wasn't a Citizen then... but now that his Father is retrospectively a Citizen, then he should be allowed to take advantage of it now, retrospectively also. He feels its unfair to be ruled out by a clause he COULD NOT obey at the time, but can now,

So. Does anyone have any comments? Does anyone think any of these lines would hold any sway?

Personally, I doubt it. The new act is pretty clear about what it sees as first and second generations, regardless of what the original act said. That act is gone and buried.... the new definition is the only one that counts. Those twins in the example, will forever have differing Citizenship status.

The only one I can see having any pull at all is the Bill of Rights one... but it wont help Paul. To invoke the bill of rights line he would need standing as either a Citizen, or actually be in Canada. Neither is the case. His Father may have more standing in such event... but I doubt his Dad would want to follow it up and go down that path at all.

Comments? Thoughts?

 

[hawk39]

I think that since Paul's father's citizenship was restored because of the 2015 legislation and carried over with the current legislation, at the same time he was officially recognized as the first generation born abroad (because the fact can't be changed that he was born outside of Canada to a Canadian-born citizen); so that would also mean Paul would be officially recognized as the second generation born and ineligible for citizenship by descent under the current legislation. For Paul to say that since his father benefitted from the 2015 legislation, that he should then be able to claim citizenship because he wants to be defined from an older law that the current law has overwritten, is cherry-picking, and if that were allowed, it would create a dangerous and chaotic precedent and challenge many other established laws. The current law clearly defines who is in what generation, and it only benefits those that are of the first. So unless that law is changed to benefit more generations or removes the generational limit, unfortunately, Paul is out of luck.

Alphazip, any corrections you have for me would be greatly appreciated

 

[Gr8Alan]

Hawk, I agree with you.... and have tried to tell him this several times. He is being stubborn however.

What about the section 3(1)(e) argument?

 

[alphazip]

I think that since Paul's father's citizenship was restored because of the 2015 legislation and carried over with the current legislation, at the same time he was officially recognized as the first generation born abroad (because the fact can't be changed that he was born outside of Canada to a Canadian-born citizen); so that would also mean Paul would be officially recognized as the second generation born and ineligible for citizenship by descent under the current legislation. For Paul to say that since his father benefitted from the 2015 legislation, that he should then be able to claim citizenship because he wants to be defined from an older law that the current law has overwritten, is cherry-picking, and if that were allowed, it would create a dangerous and chaotic precedent and challenge many other established laws. The current law clearly defines who is in what generation, and it only benefits those that are of the first. So unless that law is changed to benefit more generations or removes the generational limit, unfortunately, Paul is out of luck.

Alphazip, any corrections you have for me would be greatly appreciated

Well, since you asked...lol. Everything you wrote is correct, except that Paul's father benefited from the 2009 changes, not 2015. The 2009 changes helped most all of the first generation born abroad, except those whose parents had ceased to be British subjects before 1947. The 2015 changes covered the latter.

Paul's grandfather moved in the 1930s from one part of the British Empire (Canada) to another (Australia), so his status would have remained the same (British subject). Therefore, he would have become a Canadian citizen in 1947.

 

[hawk39]

What about the section 3(1)(e) argument?

Alphazip, thanks for the correction. Like I said, learning something every day. So I'm going to try again...

3(1)(e) does not apply to Paul because his father wasn't a Canadian citizen because of section 6 (retention requirement) of the 1947 Act. The 2009 legislation that restored his father's citizenship also officially labeled him as the second generation born abroad, and there's no way to remove that "stigma" at this time. I also found this on the IRCC website:

• "Exception to limit to citizenship by descent [subsection 3(4) (transitional provision)]

The limit to citizenship by descent does not have the effect of taking away the Canadian citizenship of persons born outside Canada after the first generation prior to April 17, 2009, who were already Canadian citizens on April 16, 2009 (i.e., the day before the legislative amendments came into force). These persons keep their citizenship.​

The first-generation limit to citizenship by descent does, however, apply to persons born outside Canada after the first generation to a parent whose citizenship was restored or conferred as a result of the legislative amendments which came into force on April 17, 2009, and where that person would have been a citizen only through this restoration or conferral on their parent. These persons did not become Canadian citizens on April 17, 2009, unless one of the exceptions to the first-generation limit to citizenship by descent described in subsection 3(5) of the Act applies."​

I think this paragraph says that children can not be citizens of descent if their parents' citizenship by descent was restored by the 2009 legislation, period. So that would mean Paul, who is also labeled as a second generation by this paragraph, is ineligible for citizenship by descent, and can not argue against it without recognizing the restoration of his father's citizenship through the special grant. FYI, 3(5) mentioned is that paragraph is the exception if the parent or grandparent is a Crown servant.

So, Paul needs to realize that, under the current legislation, he is of the second generation born abroad, as defined by the IRCC, and is ineligible. Like I wrote before, he can't cherry-pick what laws he wants to be defined under; he needs to accept that the current law is the one that is legally recognized today and as a whole. Unless exceptions are also written in the current law, he can't go back and reference the old laws that have been overwritten with the current law. If he still wants to challenge this, then I think it's time for him to open his wallet and to get a reputable Canadian lawyer that specializes in citizenship law; perhaps that law group that is hosting this forum.

Alphazip, I await your corrections .

 

[alphazip]

Alphazip, thanks for the correction. Like I said, learning something every day. So I'm going to try again...

3(1)(e) does not apply to Paul because his father wasn't a Canadian citizen because of section 6 (retention requirement) of the 1947 Act. The 2009 legislation that restored his father's citizenship also officially labeled him as the second generation born abroad, and there's no way to remove that "stigma" at this time. I also found this on the IRCC website:

• "Exception to limit to citizenship by descent [subsection 3(4) (transitional provision)]

The limit to citizenship by descent does not have the effect of taking away the Canadian citizenship of persons born outside Canada after the first generation prior to April 17, 2009, who were already Canadian citizens on April 16, 2009 (i.e., the day before the legislative amendments came into force). These persons keep their citizenship.​

The first-generation limit to citizenship by descent does, however, apply to persons born outside Canada after the first generation to a parent whose citizenship was restored or conferred as a result of the legislative amendments which came into force on April 17, 2009, and where that person would have been a citizen only through this restoration or conferral on their parent. These persons did not become Canadian citizens on April 17, 2009, unless one of the exceptions to the first-generation limit to citizenship by descent described in subsection 3(5) of the Act applies."​

I think this paragraph says that children can not be citizens of descent if their parents' citizenship by descent was restored by the 2009 legislation, period. So that would mean Paul, who is also labeled as a second generation by this paragraph, is ineligible for citizenship by descent, and can not argue against it without recognizing the restoration of his father's citizenship through the special grant. FYI, 3(5) mentioned is that paragraph is the exception if the parent or grandparent is a Crown servant.

So, Paul needs to realize that, under the current legislation, he is of the second generation born abroad, as defined by the IRCC, and is ineligible. Like I wrote before, he can't cherry-pick what laws he wants to be defined under; he needs to accept that the current law is the one that is legally recognized today and as a whole. Unless exceptions are also written in the current law, he can't go back and reference the old laws that have been overwritten with the current law. If he still wants to challenge this, then I think it's time for him to open his wallet and to get a reputable Canadian lawyer that specializes in citizenship law; perhaps that law group that is hosting this forum.

Alphazip, I await your corrections .

Nothing to correct in that one, hawk39!

Every country has a right to define who is a citizen of that country, and the government of Canada (actually, the previous government) made the decision to cut citizenship off after the first generation born abroad. It is very unlikely that a court would force the government to allow Canadian citizenship to be passed on through succeeding generations born abroad without limit (as with Italian citizenship). So, I just don't think there's a case here.

 

[Gr8Alan]

Ok, I get what you guys are saying... and I have agreed with you all the way along. I, and Paul for that matter, are not Canadian in my eyes.

But.... he may have convinced me he has it right. On the 3(1)(e) bit.... follow us on this.

His Dad has his citizenship restored in 2009, we call agree on that? Under section 3(1)(f).


Persons who are citizens
3 (1) Subject to this Act, a person is a citizen if ....

• (f) before the coming into force of this paragraph, the person ceased to be a citizen for any reason other than the following reasons and did not subsequently become a citizen:

Ok. So that's covered. He lost is due to non-retention, which is not one of the things listed in (f) that still takes away citizenship.

His Citizenship is also backdated to when he lost it by section 7

7 Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force....
(d) a person referred to in paragraph (1)(f) — other than a person described in paragraph (c) — is deemed to be a citizen under paragraph (1)(f) from the time the person ceased to be a citizen;

Ok. All good so far.

Section 3(3) STOPS the further passing of citizenship.....


3 (3) Subsection (1) does not apply to a person born outside Canada

• (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or
  
  
• (b) if, at any time, only one of the person’s parents was a citizen and that parent was a citizen under any of the following provisions, or both of the person’s parents were citizens under any of the following provisions:
  • (i) paragraph 4(b) or 5(b) of the Canadian Citizenship Act, S.C. 1946, c. 15,

And his Dad was a section 4(b) baby originally.

All done and dusted right?

Wrong.

New amendments.... in 2014 section 3(3) is changed.....

3 (3) Paragraphs (1)(b) and (f) to (j) 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) or (h), or both of the person’s parents were citizens under any of those paragraphs; or
  
  
• (b) if, at any time, only one of the person’s parents was a citizen and that parent was a citizen under any of the following provisions, or both of the person’s parents were citizens under any of the following provisions:
  
  • (i) paragraph 4(b) or 5(b) of the Canadian Citizenship Act, S.C. 1946, c. 15,

So.... if Paul can be a citizen under and but (b) and (f) to (j) it can still be passed to him.


So, section 3(1)(e) in the same 2014 version of the laws....

(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act;

Now, I was unsure on this... told him it didn't apply to him. but then he showed me this in the Canadian Government web site.....

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/acquisition-loss/acquisition.html

And the part specifically in 3(1)(e) in the current Act....

Delayed registration of birth outside Canada (citizenship by descent) [paragraph 3(1)(e)]
Citizen’s date of birth: between January 1, 1947, and February 14, 1977

Paragraph 3(1)(e) sets out that a person is a Canadian citizen if that person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the 1947 Act. A person is therefore a Canadian citizen if they were born outside Canada between January 1, 1947, and February 14, 1977, to a Canadian parent and were eligible and required to be registered as citizens born outside Canada but did not do so within two years after the person’s birth or within an extended period authorized by the Minister. Under paragraph 5(1)(b) of the 1947 Act, only a person born in wedlock to a Canadian citizen father or a child born out of wedlock to a Canadian citizen mother was entitled to be registered as a citizen.

And... that seems to be What he was on about all along. Those people in his boat ARE citizens.... exempted from the first generation cut-off specifically because the arguments he was mounting earlier around their original eligibility under 5(1)(b) of the original act seeing them as first generation abroad after Citizenship became an actual thing.

Thoughts?

 

[hawk39]

And the part specifically in 3(1)(e) in the current Act....

Delayed registration of birth outside Canada (citizenship by descent) [paragraph 3(1)(e)]
Citizen’s date of birth: between January 1, 1947, and February 14, 1977

Paragraph 3(1)(e) sets out that a person is a Canadian citizen if that person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the 1947 Act. A person is therefore a Canadian citizen if they were born outside Canada between January 1, 1947, and February 14, 1977, to a Canadian parent and were eligible and required to be registered as citizens born outside Canada but did not do so within two years after the person’s birth or within an extended period authorized by the Minister. Under paragraph 5(1)(b) of the 1947 Act, only a person born in wedlock to a Canadian citizen father or a child born out of wedlock to a Canadian citizen mother was entitled to be registered as a citizen.

And... that seems to be What he was on about all along. Those people in his boat ARE citizens.... exempted from the first generation cut-off specifically because the arguments he was mounting earlier around their original eligibility under 5(1)(b) of the original act seeing them as first generation abroad after Citizenship became an actual thing.

Thoughts?

I think the main point, which Alphazip corrected me on previously, is that Paul's father was not a Canadian citizen when Paul was born, so Paul could not get registered, thus Paul is not a citizen under 3(1)(e). Remember, the concept of generation limits didn't start until 2009; in 1947, there was no first or second generation. "Those people in his boat ARE citizens" is true if those people had Canadian parents, but, again, since Paul's father was not a Canadian citizen when Paul was born, therefore he is not "in the same boat" as those described in 3(1)(e).

The "exemption from the first generation cut-off" is an inaccurate statement in regards to 5(1)(b) of the 1947 Act because registration was a requirement until 1977 when it was repealed; it didn't matter what generation you were in, as long as the person was registered before 2004, he/she became a citizen; and then just being born to a Canadian parent until 2009. If a Canadian family living abroad with each generation born abroad had children as biologically early as possible and successfully registered, they can have four generations born abroad as citizens until 2009. Today, you can only be exempted from the first generation cut-off if the parent or grandparent is a Crown servant at the time of the child's birth.

In regards to 3(3), the definition given by the IRCC is "in general, persons who were not already Canadian citizens immediately before April 17, 2009, and who were born outside Canada to a Canadian parent are not Canadian if... their Canadian parent was also born outside Canada to a Canadian parent (the person is therefore the second or subsequent generation born outside Canada)" is pretty self-explanatory. Paul feels that
3(3)(b)(i) is in his favor, but I don't think that Paul is a citizen under 3(1)(b), (f) to (j), (q) or (r), so 3(3)(b)(i) does not apply to him.

I don't think I can explain my interpretations of the law any further than this. I'm not am expert nor do I have any legal experience, but this is how I believe the current law is being interpreted. If Paul still thinks he can challenge the law, then he should really consider hiring a lawyer to look into this. I wish him the best of luck.

Alphazip, I deeply welcome any corrections you have for me on this post

 

[alphazip]

Ok, I get what you guys are saying... and I have agreed with you all the way along. I, and Paul for that matter, are not Canadian in my eyes.

But.... he may have convinced me he has it right. On the 3(1)(e) bit.... follow us on this.

His Dad has his citizenship restored in 2009, we call agree on that? Under section 3(1)(f).


Persons who are citizens
3 (1) Subject to this Act, a person is a citizen if ....

• (f) before the coming into force of this paragraph, the person ceased to be a citizen for any reason other than the following reasons and did not subsequently become a citizen:

Ok. So that's covered. He lost is due to non-retention, which is not one of the things listed in (f) that still takes away citizenship.

His Citizenship is also backdated to when he lost it by section 7

7 Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force....
(d) a person referred to in paragraph (1)(f) — other than a person described in paragraph (c) — is deemed to be a citizen under paragraph (1)(f) from the time the person ceased to be a citizen;

Ok. All good so far.

Section 3(3) STOPS the further passing of citizenship.....


3 (3) Subsection (1) does not apply to a person born outside Canada

• (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or
  
  
• (b) if, at any time, only one of the person’s parents was a citizen and that parent was a citizen under any of the following provisions, or both of the person’s parents were citizens under any of the following provisions:
  • (i) paragraph 4(b) or 5(b) of the Canadian Citizenship Act, S.C. 1946, c. 15,

And his Dad was a section 4(b) baby originally.

All done and dusted right?

Wrong.

New amendments.... in 2014 section 3(3) is changed.....

3 (3) Paragraphs (1)(b) and (f) to (j) 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) or (h), or both of the person’s parents were citizens under any of those paragraphs; or
  
  
• (b) if, at any time, only one of the person’s parents was a citizen and that parent was a citizen under any of the following provisions, or both of the person’s parents were citizens under any of the following provisions:
  • (i) paragraph 4(b) or 5(b) of the Canadian Citizenship Act, S.C. 1946, c. 15,

So.... if Paul can be a citizen under and but (b) and (f) to (j) it can still be passed to him.


So, section 3(1)(e) in the same 2014 version of the laws....

(e) the person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the former Act;

Now, I was unsure on this... told him it didn't apply to him. but then he showed me this in the Canadian Government web site.....

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/acquisition-loss/acquisition.html

And the part specifically in 3(1)(e) in the current Act....

Delayed registration of birth outside Canada (citizenship by descent) [paragraph 3(1)(e)]
Citizen’s date of birth: between January 1, 1947, and February 14, 1977

Paragraph 3(1)(e) sets out that a person is a Canadian citizen if that person was entitled, immediately before February 15, 1977, to become a citizen under paragraph 5(1)(b) of the 1947 Act. A person is therefore a Canadian citizen if they were born outside Canada between January 1, 1947, and February 14, 1977, to a Canadian parent and were eligible and required to be registered as citizens born outside Canada but did not do so within two years after the person’s birth or within an extended period authorized by the Minister. Under paragraph 5(1)(b) of the 1947 Act, only a person born in wedlock to a Canadian citizen father or a child born out of wedlock to a Canadian citizen mother was entitled to be registered as a citizen.

And... that seems to be What he was on about all along. Those people in his boat ARE citizens.... exempted from the first generation cut-off specifically because the arguments he was mounting earlier around their original eligibility under 5(1)(b) of the original act seeing them as first generation abroad after Citizenship became an actual thing.

Thoughts?

Note: I wrote this before noticing that hawk39 had already answered. I agree with what he wrote and add this, some of which is redundant.

Perhaps I'm missing the point you're making here, but we discussed a Delayed Registration of Birth Abroad earlier in this thread. The reason you and Paul couldn't have made such a registration is that your fathers were not Canadian citizens when you were born. You can't do so now, because the possibility of making a delayed registration ended in 2004.

Just take a look here:

https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/act-changes/rules-2009-2015.html

It explains who did and who did not receive Canadian citizenship as a result of the 2009 and 2015 changes to the Citizenship Act. No matter what "generation" you attach to your fathers (yours and Paul's) under the original Citizenship Act, you and Paul are clearly second generation born abroad in terms of the 2009 and 2015 changes. That's what matters.

Have you referred Paul to the "Am I Canadian" (https://na1se.voxco.com/SE/56/amicanadiansuisjecanadien/?lang=en&tui=auto) tool? What I see is that when I enter his information, it asks whether his birth was registered. When I answer no, I get this: "You are probably not a Canadian citizen." If Paul believes that to be incorrect, he should apply for a citizenship certificate and get a formal decision.

 

[Gr8Alan]

So... the part I copied from the Government web site that says (e) applies to those who did not register.... is wrong? You still had to be registered?

And the retrospective citizenship given back to the father isn't really truly retrospective?

And second generation rule would still apply despite section (e) being excluded from the first generation cut-off by section 3(3)?


So... in the legislative analysis accompanying the changes in 2014 around removing (e) from the first gen cut off rule.... this is said....



Bill C-24 amends the opening wording of the first generation cut-off rule in section 3(3) of the Act to list the specific provisions of section 3(1) of the Act under which a person may obtain citizenship by descent; current section 3(3) refers broadly to all the bases provided in section 3(1) upon which a person may have a right to citizenship.

The amendment clarifies to whom the first generation cut-off rule applies. It does not apply to people who obtained citizenship by descent under existing section 3(1)(e) (since that provision is no longer listed in amended section 3(3)). Under that provision, people who were entitled, immediately before 15 February 1977 (the date when the current Citizenship Act came into effect), to become Canadian citizens because they were born abroad to a Canadian parent (but whose births had not been registered), were automatically citizens. Since amended section 3(4) of the Act states that the first generation cut-off rule does not apply to a person who was a citizen on the coming into force of the rule, the first generation cut-off rule does not apply to the people who obtained citizenship by descent under section 3(1)(e).



Why exclude it from the first gen cut-off if no one can qualify for that section anymore? If you can only qualify under (e) by having already been registered by 2004, then all those people are already citizens, which means there is no need to exclude them from the cut-off... as anyone who is already a citizen can't have it taken away. Why amend to exclude it in 2014 as they did? The section (e) qualification is left in the Act.... why is it still there if it no longer operates? And why expand it's ability to grant citizenship with this amendment if everyone who can qualify for it by registering is already registered and already a citizen?

Look, you guys are the more knowledgeable than me in all this.... I'm happy to take your word for it. And I did open this whole thread saying I didn't think any citizenship was available in this circumstance. I'm just going to have trouble convincing Paul of all this.... I'm not as good as interpreting this stuff as you. So wish me luck! I'll need it!

 

[alphazip]

I agree that the 2009 changes removed the obligation of Paul's father to retain and returned the citizenship that he lost in his 20s, and that he is now a citizen from his date of birth or January 1, 1947 (whichever date is later). I agree that those same changes removed the obligation of a person born abroad to a Canadian citizen between 1947 and 1977 to register his/her birth. However, at the same time as these changes were made, a restriction was put in place on citizenship by descent. This restriction cancels out the benefits of the 2009 changes as regards people born in the 2nd generation and beyond.

See here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/acquisition-loss/acquisition.html

"The Citizenship Act limits citizenship by descent to the first generation born outside Canada to a Canadian parent. As of April 17, 2009, in order for a person born outside Canada to be a citizen by descent, that person must be born in the first generation to a Canadian parent.

This means that, in general, persons who were not already Canadian citizens immediately before April 17, 2009, and who were born outside Canada to a Canadian parent are not Canadian if

• their Canadian parent was also born outside Canada to a Canadian parent (the person is therefore the second or subsequent generation born outside Canada)"

Are you saying that Paul was a citizen before the 2009 changes? That's the only way he could be a citizen today.

 

[Gr8Alan]

I think that the last part of what you have there does say "In general" for a reason.

You say you agree the citizenship is retrospective for the father. And that it removes the need to register for the child.

So the sticking point is the second generation cut-off.

But the second generation cut-off does not apply to people entitled under 3(1)(e).

Section 3(3) that details the first/second generation cut off used to be a blanket cut off... But then in 2014 it was changed. It only applies to certain categories of citizenship now.

You are right... The 2009 changes did prevent the second generation being citizens. But other changes after that allowed them back in.... In limited circumstances.

The legislative summary called it *a refinement* of the first generation cut off rule.

 

[alphazip]

It says "in general," because there is a rare circumstance under which a person born in the 2nd generation could have become a Canadian citizen after the 2009 changes. That circumstance has to do with the person's Canadian parent/grandparent being abroad for the purpose of Crown service. See below.

The second generation cut-off does apply to people entitled under 3(1)(e). On this page (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/acquisition-loss/acquisition.html) it states (under Delayed registration...):

"The opportunity to register and become a citizen under paragraph 3(1)(e) expired on August 14, 2004. Persons who did not make an application to register and become citizens under paragraph 3(1)(e) prior to its expiry on August 14, 2004, may have automatically become citizens under the legislative amendments of 2009 if they are of the first generation born outside Canada to a Canadian parent."

Paul is not of the first generation born outside Canada.

You say that 2014 (effective 2015) legislation allowed those entitled under 3(1)(e) to get citizenship, irrespective of the 2nd generation cut-off. However, on this page it explains who became a citizen under the 2015 changes AND gives the exceptions to the 1st generation limit:

https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/act-changes/rules-2009-2015.html

"Changes in 2015
In 2015, you became a Canadian citizen if you were:

• born or naturalized in Canada before January 1, 1947, but stopped being a British subject and didn’t become a citizen on that date
  • in Newfoundland and Labrador this date is April 1, 1949
• a British subject usually living in Canada but weren’t eligible for Canadian citizenship on January 1, 1947
  • in Newfoundland and Labrador this date is April 1, 1949
• born outside Canada in the first generation before January 1, 1947, to a parent described above
  • in Newfoundland and Labrador this date is April 1, 1949
• born outside Canada in the first generation before January 1, 1947, to a parent who became a citizen on that date and you didn’t become a citizen on that date
  • in Newfoundland and Labrador this date is April 1, 1949
• foreign-born and adopted before January 1, 1947, and at least one adoptive parent became a Canadian citizen on that date and the adoptive parent is eligible to pass on citizenship by descent
  • in Newfoundland and Labrador this date is April 1, 1949

In 2015, you didn’t become a Canadian citizen if you:

• had your British subject status revoked
• renounced your British subject status
• were born outside Canada after the first generation (unless one of the exceptions to the first generation limit to citizenship by descent apply)"

"Exceptions to the first generation limit

If you were born outside Canada in the second or later generation, the first generation limit to citizenship doesn’t apply to you if:

• at the time of your birth, your Canadian parent was employed:
  • outside Canada
  • with the Canadian Armed Forces
  • with the federal public administration
  • with the public service of a province or territory
  • other than as a locally engaged person (a crown servant)
• at the time of your Canadian parent’s birth or adoption, your Canadian grandparent was employed outside Canada:
  • in the Canadian Armed Forces
  • with the federal public administration
  • with the public service of a province or territory
  • other than as a locally engaged person (a crown servant)"

None of the 2015 changes pertain to your situation.

FYI: You may find this story of interest:

http://www.cbc.ca/news/canada/toronto/citizenship-rule-changes-ensnare-ontario-family-1.3021955

Of course there are differences (mainly in terms of dates) between this case and yours, but it still involves the 2nd generation cut-off.