1st Generation Quirk

[Alurra71]

Paul should apply for citizenship. If he receives it, then great, if he does not and wishes to argue the point. Find a lawyer. He'll never navigate it all without one.

Points could be argued here all day, however, at the end of the day, nobody really knows what CIC is going to say until they ask the question and apply

Good luck.

 

[Gr8Alan]

Alpha,

I understand what you are saying... about the second generation limit.

But I'm not sure you are looking at what I am looking at.

I know about the exception to the first generation rule and crown service. Totally understand that. But the legislation actually says..... (Where as in 2009 it started by saying..... (3) Subsection (1) does not apply to a person born outside Canada So this is the change that lets certain non 1st gen back in....)



Not applicable — after first generation
(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;
  
  
• (a.1) if the person was born before January 1, 1947 and, on that day, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(o) or (q), or both of the person’s parents were citizens under either of those paragraphs;
  
  
• (a.2) if the person was born before April 1, 1949 and, on that day, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(p) or (r), or both of the person’s parents were citizens under either 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,
    
    
  • (ii) paragraph 5(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 2,
    
    
  • (iii) paragraph 4(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1952-53, c. 23, s. 2(1),
    
    
  • (iv) paragraph 5(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 2 and amended by S.C. 1952-53, c. 23, s. 3(1),
    
    
  • (v) paragraph 4(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1952-53, c. 23, s. 13(1),
    
    
  • (vi) paragraph 5(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended by S.C. 1952-53, c. 23, s. 14(1),
    
    
  • (vii) subsection 39B(1) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 10, or
    
    
  • (viii) paragraph 4(1)(b) or 5(1)(b) or subsection 42(1) of the former Act.

THAT is the first generation limit. The part you are talking about is



Exception — child or grandchild of person in service abroad
(5) Subsection (3) does not apply to a person

• (a) born to a parent who, at the time of the person’s birth, was employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person;
  
  
• (b) born to a parent one or both of whose parents, at the time of that parent’s birth, were employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person; or
  
  
• (c) born to a parent one or both of whose adoptive parents, at the time of that parent’s adoption, were employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person.

And true.... it excepts people from the first generation limit.

But.... The first generation limit DOES NOT apply to everyone in the first place. Only those under (3) Paragraphs (1)(b), (f) to (j), (q) and (r) are subject to the first generation limit.

So... if someone qualifies under 3(1)(e)... they are not subject to the first generation limit... and don't NEED to fall under the crown service exception to gain citizenship outside the first generation. As you don't need to be excepted from something that doesn't apply to you. You are quoting the general rule about second generation abroad.... but it is a general rule... the actual text of the legislation does allow some people outside first generation to still qualify.

 

[alphazip]

You write, "the legislation actually says...", and then you quote from "the" legislation. But, from which legislation are you quoting? I do find that exact wording in the Citizenship Act, 1985 (http://laws-lois.justice.gc.ca/eng/acts/C-29/section-3.html), but I thought you were referring to the 2014 legislation (aka Bill 24), which can be found here:

http://www.parl.ca/DocumentViewer/en/41-2/bill/C-24/royal-assent/page-30#2

What that legislation states is this:

"(7) The portion of subsection 3(3) of the Act before paragraph (b) is replaced by the following:
Not applicable — after first generation
(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
(8) The portion of subsection 3(3) of the Act before paragraph (b) is replaced by the following:
Not applicable — after first generation
(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;
(a.1) if the person was born before January 1, 1947 and, on that day, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(o) or (q), or both of the person’s parents were citizens under either of those paragraphs;
(a.2) if the person was born before April 1, 1949 and, on that day, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(p) or (r), or both of the person’s parents were citizens under either of those paragraphs;"

Now, I haven't looked up all of those references, but I don't need to, because every one of the exceptions contains the element that at least one of the person's parents was a Canadian citizen at the time of his or her birth.

Paul's parent was not a Canadian citizen at the time of Paul's birth.

IRCC created the citizenship tool I have made reference to several times. Do you think they forgot about the 2014 legislation when they designed the tool?

 

[Gr8Alan]

You write, "the legislation actually says...", and then you quote from "the" legislation. But, from which legislation are you quoting? I do find that exact wording in the Citizenship Act, 1985 (http://laws-lois.justice.gc.ca/eng/acts/C-29/section-3.html), but I thought you were referring to the 2014 legislation (aka Bill 24), which can be found here:

http://www.parl.ca/DocumentViewer/en/41-2/bill/C-24/royal-assent/page-30#2

What that legislation states is this:

"(7) The portion of subsection 3(3) of the Act before paragraph (b) is replaced by the following:
Not applicable — after first generation
(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
(8) The portion of subsection 3(3) of the Act before paragraph (b) is replaced by the following:
Not applicable — after first generation
(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;
(a.1) if the person was born before January 1, 1947 and, on that day, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(o) or (q), or both of the person’s parents were citizens under either of those paragraphs;
(a.2) if the person was born before April 1, 1949 and, on that day, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(p) or (r), or both of the person’s parents were citizens under either of those paragraphs;"

Now, I haven't looked up all of those references, but I don't need to, because every one of the exceptions contains the element that at least one of the person's parents was a Canadian citizen at the time of his or her birth.

Paul's parent was not a Canadian citizen at the time of Paul's birth.

IRCC created the citizenship tool I have made reference to several times. Do you think they forgot about the 2014 legislation when they designed the tool?

What you are reading is the 2014 act to amend the citizenship act.... not the act itself as it reads after the amendments.

That is found at....

http://laws-lois.justice.gc.ca/eng/acts/C-29/index.html

Which also has at the top the link "previous versions" which lets you see it as it was in force at any given date. So yes, I'm quoting the 1985 Act... AS AMENDED in 2009, 2014, 2017....

And yes.... they say at the time of the birth. But only if the person does qualify under (b) and (f) to (j), (q) and (r). That's the starting line. So those lines about if one of the parents at the time of the birth.... don't apply unless you qualify under those sections. That's how the first gen rule is applied.... it does not apply to everyone.

And no, I don't think they forget the 2014 amendments when making the tool.... but it does have a disclaimer that is doesn't cover everything and isn't an official ruling.... because it's too hard to anticipate and allow for every possibility.

Anyway.... I'm handing all this over to Paul... let him sort the mess out. I was researching the family tree when all this came up... and it's been an amusing distraction... but I need to get back to the actual family tree.

Thanks for all your efforts Alpha, and others. If Paul even does get around to applying for a certificate, I'll let you know how he goes. I'm not sure he will... but it will take him a while to get all the documents at the very least.

P.S. One last thing to amuse you all. You think the Canadian Citizenship thing for my cousin is hard??? My wife was born in South Africa.... To a refugee Father from the former Yugoslavia, and a Mother who was born in South Africa but who had British Citizenship.... then they moved to Australia when my wife was 7 and were naturalised here. And the Yugoslav Republic has now broken up into several smaller nations that have extremely weird citizenship laws often based on ethnic lines than anything very clear.... Her stuff is a REAL mess!! Canada is easy by comparison!!

 

[Gr8Alan]

Hi Alpha,

This is Paul! I have Hijacked Alan's log in, because he refuses to have anything more to do with my quest to be Canadian.

I just want to show you one quick decision that I think means I am a Citizen. Perversely, it's a case where a second generation Canadian didn't get citizenship.... but elements of it prove I will. Some guy got retroactive Citizenship, but his kids (the applicants) didn't.

Read the judgement in full if you wish.... But I'll pull out the juicy bits. https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/61757/index.do?r=AAAAAQAbY2l0aXplbnNoaXAgZGVzY2VudCAzKDEpKGUpAQ

Ok... what does this say?

Paragraph 11 shows that section 3(1)(e) is still active, even post the 2004 limit placed on it, but later repealed.

[11] On October 3, 2011 the Officer approved the Applicants’ Father’s application for a Certificate pursuant to paragraphs 3(1)(g) and 3(1)(e) of the Act. This approval meant that William Kinsel was given proof of his Canadian citizenship as of his date of birth. However, the Officer refused to issue Certificates to the Applicants.



The application for the kids of this person were then refused in Paragraph 13... correctly. 3(3) says the rules don't apply to a person born outside Canada.... and in this case 3(3)(a) says why for this particular person.

[13] However, the Officer concluded that section 3(3)(a) of the Act precludes the application of paragraph 3(1)(b) to the Applicants because the Applicants’ Father is a Canadian who was born outside Canada and who acquired citizenship under paragraph 3(1)(g) of the Act. Paragraph 3(3)(a) states:

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




Then, in Paragraph 28 it is shown that the retroactive Citizenship does apply to subsequent generation... however in this case, the applicants fell foul of the first generation limit.

[28] The second difficulty with the Applicants’ interpretation of section 3(4) is that it suggests that their Father’s retroactive citizenship under section 3(7)(e) of the Act was conferred earlier in time than their loss of citizenship under section 3(3)(a). However, in my view, the following events happened simultaneously when Bill C-37 came into force:

- The Father became a citizen retroactive to his birth;

- The Applicants became entitled to citizenship; and

- The Applicants’ entitlement was foreclosed by section 3(3)(a).

So.... you can get citizenship under 3(1)(e).... it's retroactive.... even to giving children citizenship... but they can then be disqualified because of section 3(3) cutting off at the first generation. In this case because 3(3) applied to all second gen kids, 3(3)(a) then showed they why couldn't claim in particular.

Only... since 2014.... Section 3(3) now exempts claims under 3(1)(e) from the first gen cut-off. So you don't get as far as 3(3)(a) anymore. 3(3) No longer says it applies to all of subsection (1)... only certain parts. Those being (b) and (f) to (j)... and a few others.... but not (e).

So... My Dad gets his Citizenship back.... passes it to me... and in 2009 I couldn't have been a citizen... but from 2014 I can thanks to the amendments made to 3(3).

Technically.... My children also become citizens simultaneously.... as described above.... but their right is then foreclosed by the new section 3(3)...

Not applicable — after first generation
(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;

As (b) applies to them.... born outside Canada to a Canadian parent after 1977.... then the new section 3(3) does apply to them... and 3(3)(a) says that if the parent, at the time of the birth, is a parent under (e)... which would be me... they are prevented from becoming citizens.

 

[hawk39]

As Alurra71 and Alphazip already said, there's nothing stopping you from applying for proof of citizenship.

After a lot of thought, I still believe that you would not be defined under 3(1)(e), even with the retroactive restoration of your father's citizenship. In the proceeding note following after IRCC's definition of 3(1)(e), you would have had to register by August 14, 2004 to be a citizen under this definition; since this date has passed, no one can become a citizen under 3(1)(e) any longer. By clicking the link in the note, it also mentions in the section titled "Registration Period", only applications postmarked on or before August 14, 2004 can be processed for delayed registration under 3(1)(e). The definition is still in the law for those that made the registration period before it closed and became citizens that way.

So since I believe that you can't be defined under 3(1)(e), you could be defined (in general terms) under 3(1)(g) since your father is now a citizen retroactively to your birth. But that same note also says that people born abroad in the first generation that qualified for citizenship under 3(1)(e) but failed to register, could now be citizens under 3(1)(g), as this describes your father. Unfortunately, if you were to be defined under 3(1)(g) as well, then 3(3)(a) would now apply to you.

My final thought is the last sentence of what Justice Simpson wrote in paragraph 31 of the judgment, in that legislation written with a specific intent (in this case, generational limit) would not include a broad loophole to circumvent said legislation. If 3(1)(e) was intended to define such an open and broad definition, then the concept of generational limit that the legislation sought to enforce would have been empty and worthless. What would have been the point of introducing such legislation?

Who knows, I could be wrong about this; only a lawyer would be able to definitively answer your questions. But again, there's nothing that is preventing you from applying for proof of citizenship anyway. That is the only way to find out if you are a Canadian citizen by descent. If you do apply, I wish you the best of luck.

 

[Gr8Alan]

So... in the judgement I showed you... where the original Citizenship judge AND the judge in charge of the legal appeal confirmed the applicants feather qualified under, and I quote "approved the Applicants’ Father’s application for a Certificate pursuant to paragraphs 3(1)(g) and 3(1)(e) of the Act" was wrong? AND 3(1)(e).... Not or. Not only 3(1)(g). And that was in 2011, 7 years after the 2004 deadline.

You are right in that registration is no longer available. But those who were precluded from being able to register, because it was legally unavailable to them at the time, are being denied. it's the registration that is no longer available. But that section in still in the act... so the entitlement from before 1977 is.

They are recognized as a group of the "Lost Canadians" in the legislative summary that accompanied the legislation changes.

That's why the section was still left in the laws. If it could no longer apply to anyone at all, why didn't they take it out, when they removed the parts that described the delayed registration? Those were taken out in 2004.

It's similar in nature to a recent ruling in the British Courts... yes, a different country, but with closely related legal systems.

In that ruling a woman was denied British Citizenship from her Mother. Back when she was born Citizenship was only passed down by Fathers, and they had a year to register the new births. She was unable to register the birth legally because she was the mother, not father. Then later when there were changes that allowed mothers to pass citizenship the daughter appealed that there was a "Paradox". She couldn't have been registered legally at the time, and so missed the deadline... but in retrospect, she was now entitled to have been registered, and if she had been, she would be a citizen. The judges ruled the registration cut off was invalid in those cases, and allowed her claims for British Citizenship.

I think the Canadian Government by removing the registration part, but not the entitlement part, and then later excluding that part of the act from the first-gen cut-off, for those born before 1977 wants to allow them to be able to attain citizenship.

You Mention Para 31 and the cutting off of second gen citizens. Yes... but that ruling was before amendments were made to the first gen cut off rule. You can't make accidental changes to legislation... it only happens because it was wanted to happen.

And the changes now deliberately exclude some classes of citizenship entitlement from the first gen cut off rule.

 

[alphazip]

I agree with hawk39's analysis. In my opinion, you are barred from citizenship by the limitation on citizenship by descent imposed in 2009, and I don't believe that the 2014 legislation would have created an avenue to avoid that limitation. It was the same Conservative government that passed both pieces of legislation, and I don't think they suddenly would have had a change of heart about limiting citizenship to the first generation born abroad.

As regards the decision of the British courts, as I mentioned previously, I believe that the original Canadian Citizenship Act was discriminatory, especially towards women. If your denial of Canadian citizenship were based on gender discrimination, I think you would have a strong case. But, even then, it would have to be taken to court.

In any event, there isn't a requirement that you convince us in this forum of the correctness of your views. Simply apply for proof of citizenship and see what the decision is. It will only cost you $75. If you are approved, great! If not, you (possibly through your father for reasons of standing) will have to decide whether to take Canada to court.

 

[Gr8Alan]

I admire the way you all stick to the concept of the first generation cut off.

But none of you actually read how it works in the law.

The current law says..... as I have pointed out via Alan, and then again when I took over....

Not applicable — after first generation
(3) Paragraphs (1)(b), (f) to (j), (q) and (r) do not apply to a person born outside Canada

THAT is the first generation rule. It's what is in the law.

Look in http://laws-lois.justice.gc.ca/eng/acts/C-29/index.html for what the law currently says. As it says on that page.... Act current to 2018-05-09 and last amended on 2018-01-24. So that is the current law.

Click the link for previous versions. The versions just prior to 18-6-2014 say....

Not applicable — after first generation
(3) Subsection (1) does not apply to a person born outside Canada

That is the blanket cut off of everyone after the first generation as you like to keep seeing it. That was put in place in 2009... check previous versions again if you wish.

But from 19-6-2014 onwards, as I have stated earlier.... does not include people under 1(e).... and some other subsections.

As you and several other have pointed out.... I don't need to convince any of you... only to apply for proof from the Canadian Government. Which I will be doing. I hope you are still around in the many months it apparently takes for these to go through, so I can let you know the result either way.

You say, "and I don't believe that the 2014 legislation would have created an avenue to avoid that limitation".... but there it is.... in the law.

 

[hawk39]

So... in the judgement I showed you... where the original Citizenship judge AND the judge in charge of the legal appeal confirmed the applicants feather qualified under, and I quote "approved the Applicants’ Father’s application for a Certificate pursuant to paragraphs 3(1)(g) and 3(1)(e) of the Act" was wrong? AND 3(1)(e).... Not or. Not only 3(1)(g). And that was in 2011, 7 years after the 2004 deadline.

Are you referring to paragraph 11? Actually, the citizenship judge (who?) and appealing judge (who?) did not approve the father's application, but the citizenship officer that processed his application; please quote the whole sentence. The officer approved under 3(1)(e) and (g); but in paragraphs 8 and 9, when the legislation came into effect, the father was only recognized under (g), as (e) was no longer a possibility. The officer's use of (e) is not under scrutiny, it was included because it is part of the officer's report.

If it could no longer apply to anyone at all, why didn't they take it out, when they removed the parts that described the delayed registration? Those were taken out in 2004.

Because 3(1)(e) is a one of many valid descriptions under how one became a citizen; it is not a pathway. Those who were born abroad that successfully registered are citizens under (e) regardless of what generation they are in. The first generation born abroad of those that did not register successfully are now citizens under (g), hence the first generation limit. Delayed registration is no longer an active method, thus is not included in current legislation. However, the result of delayed registration created a new description of citizens that benefitted from it, (e). These citizens will always be defined under (e).

I think the Canadian Government by removing the registration part, but not the entitlement part, and then later excluding that part of the act from the first-gen cut-off, for those born before 1977 wants to allow them to be able to attain citizenship.

The use of the word "entitled" in (e) is used to describe those that had the chance to become a citizen if they had registered by a certain age before 1977 because it was a requirement per the 1947 Act. The age requirement was rescinded in 1977, thus delayed registration was enacted in 1977 to give those the chance that did not register pursuant to the 1947 Act to register at any age and until 2004. I think (e) was excluded in 2014 because second, third and even fourth generations born that had successfully registered are defined under (e) and are of after the first generation, so it was excluded as a point of clarity to say that those people will not lose their citizenship as an exception to not being the first generation born abroad.

You Mention Para 31 and the cutting off of second gen citizens. Yes... but that ruling was before amendments were made to the first gen cut off rule. You can't make accidental changes to legislation... it only happens because it was wanted to happen.

I mentioned paragraph 31 as a general point because I think it is relevant whenever legislation is enacted, enforced and interpreted; not just when this particular judgment was written. "Accidental changes" are up to interpretation or how you want to read it; but the intent of the legislation will still be the same until new legislation with a different intention is enacted. In this case, the generation limit was one of the main intents of the current legislation, and until new legislation is enacted to clearly expand or eliminate it, that is how any new re-wordings or "accidental changes" should be interpreted.

One last time... just apply for the proof of citizenship. That's the only way you can find out if you are Canadian by descent.