Citizenship by Descent - insights wanted!

[jrl86]

Hello everyone,

I’d like to apply for the citizenship by descent, but I’m wondering if I should or not - because of the 2009 amendments.
Sorry for the long post, I hope someone can clarify this for me – my case is described below:

My grandfather (born in 1915) was born and raised in Canada and immigrated to Brazil in the 40’s, where he met my grandmother (Brazilian), married and stayed there until his death.

My father was born in Brazil (1st generation born abroad) in 1948 but was registered as a Canadian citizen born abroad and thus was a Canadian citizen by birth.

Having lived in Brazil his whole life, my father lost his Canadian citizenship in his 28th birthday (in 1976), due to one of the old rules in the Canadian immigration act. He married my mom (Brazilian) and had me and my 2 brothers.

I was born in Brazil in 1986, and since my dad wasn’t a Canadian citizen anymore, I could not apply for the citizenship.

In 2009, however, the immigration act was amended and brought 2 new rules that changed the situation:

1st – people that had lost citizenship due to those old rules (like my dad) would have their citizenship restored retroactively to the day they lost it.

2nd – people that are 2nd generation born abroad are no longer citizens by descent.

So, after that, my first thought was: my father got his citizenship back (and he did) but I, as a second generation born abroad, have no right to be a Canadian by descent (bad news!)

But then, after reading some articles on the web and even some info on the cic website, I realized that maybe I still have the right to be a citizen by descent, but that would depend on how you interpret the law.

As far as my understanding of the law goes: even if you are a second generation born abroad, you have the right to the Canadian citizenship by descent (and are exempt from the new limitation) if you were born before 2009 and your Canadian parent was a citizen on the day of your birth.

That is when it gets tricky, because until 2009, my dad was not a citizen the day I was born. But, since the law restored his citizenship retroactively back to the day he lost it, I would assume that the period in time when he was not a citizen has been erased (in the eyes of the law), so that after 2009 my dad would have been a Canadian citizen his whole life without any interruptions whatsoever, thus now I can say that I am a second generation born abroad, but I was born before 2009 and my Canadian parent was indeed a citizen the day I was born.

Based on that reasoning, I should apply for the citizenship by descent, but since I am no law specialist I am not sure.

Does anyone have a deep/better understanding of the law in order to tell me if my reasoning is right or wrong? I keep asking myself if I am right or if I am missing something.

Thank you very much!!

 

[HamiltonApplicant]

Check whether the following excerpt from the web page http://www.cic.gc.ca/english/citizenship/rules_2009.asp answers your question:

This means that if you weren’t already a Canadian citizen by April 17, 2009, and were born outside Canada to a Canadian parent, you aren’t Canadian if your Canadian parent was:

• also born outside Canada to a Canadian parent
  • this would make you the second or subsequent generation born outside Canada
• granted Canadian citizenship under section 5.1, the adoption provisions of the Citizenship Act
  • this would make you the second generation born outside Canada

 

[jrl86]

Check whether the following excerpt from the web page http://www.cic.gc.ca/english/citizenship/rules_2009.asp answers your question:

This means that if you weren’t already a Canadian citizen by April 17, 2009, and were born outside Canada to a Canadian parent, you aren’t Canadian if your Canadian parent was:

• also born outside Canada to a Canadian parent
  • this would make you the second or subsequent generation born outside Canada
• granted Canadian citizenship under section 5.1, the adoption provisions of the Citizenship Act
  • this would make you the second generation born outside Canada

Thank you very much!

 

[alphazip]

My father was born in Brazil (1st generation born abroad) in 1948 but was registered as a Canadian citizen born abroad and thus was a Canadian citizen by birth.

Having lived in Brazil his whole life, my father lost his Canadian citizenship in his 28th birthday (in 1976), due to one of the old rules in the Canadian immigration act. He married my mom (Brazilian) and had me and my 2 brothers.

The original Canadian Citizenship Act, which became effective on January 1, 1947, required that a child born abroad in wedlock to a Canadian citizen father be registered within two years for the child to be a Canadian citizen. You report that this was done.

The Act also provided that such a child would lose his/her Canadian citizenship if he/she did not, after age 21 and before age 22 [apparently later extended to age 24]: 1) make a declaration of retention of Canadian citizenship, and 2) renounce his/her other citizenship. You report that your father remained in Brazil and lost his Canadian citizenship at age 28. (Age 22 or 24 seems more likely.)

If your father lost his Canadian citizenship before you were born, you could not have inherited Canadian citizenship from him. This is despite the fact that your father regained his Canadian citizenship in 2009, retroactive to the day it was lost. That is because at the same time as he regained his citizenship, citizenship by descent was limited to the first generation born abroad, and you are the second.

I entered your information into the "Am I Canadian Tool" (https://na1.se.voxco.com/SE/56/amicanadiansuisjecanadien/?lang=en&tui=b0a189a6-fba6-42f8-8be0-3e7de30b0ed0) and this is the result: "You are probably not a Canadian citizen."

Although things don't look good, you may still want to apply for proof of citizenship and see what happens.

 

[jrl86]

The original Canadian Citizenship Act, which became effective on January 1, 1947, required that a child born abroad in wedlock to a Canadian citizen father be registered within two years for the child to be a Canadian citizen. You report that this was done.

The Act also provided that such a child would lose his/her Canadian citizenship if he/she did not, after age 21 and before age 22 [apparently later extended to age 24]: 1) make a declaration of retention of Canadian citizenship, and 2) renounce his/her other citizenship. You report that your father remained in Brazil and lost his Canadian citizenship at age 28. (Age 22 or 24 seems more likely.)

If your father lost his Canadian citizenship before you were born, you could not have inherited Canadian citizenship from him. This is despite the fact that your father regained his Canadian citizenship in 2009, retroactive to the day it was lost. That is because at the same time as he regained his citizenship, citizenship by descent was limited to the first generation born abroad, and you are the second.

I entered your information into the "Am I Canadian Tool" (https://na1.se.voxco.com/SE/56/amicanadiansuisjecanadien/?lang=en&tui=b0a189a6-fba6-42f8-8be0-3e7de30b0ed0) and this is the result: "You are probably not a Canadian citizen."

Although things don't look good, you may still want to apply for proof of citizenship and see what happens.

yeah the retroactivity component makes it tricky, but you are possibly right - thank you for your help

 

[scylla]

Alphazip has a very good understanding of the laws and I would assume that answer is correct. But you can always try applying - nothing to lose but the application fees.

 

[HamiltonApplicant]

yeah the retroactivity component makes it tricky, but you are possibly right - thank you for your help

There are many routes to Canada, Citizenship by descend is just one of them. For example, many claim Canadian residency on humanitarian grounds....

 

[links18]

There are many routes to Canada, Citizenship by descend is just one of them. For example, many claim Canadian residency on humanitarian grounds....

Huh? How do you do that? Do you mean make a refugee claim?

 

[scylla]

There are many routes to Canada, Citizenship by descend is just one of them. For example, many claim Canadian residency on humanitarian grounds....

H&C would fail in this case. That's bad advice.

If OP is not a citizen by descent - then OP would have to look to become a PR through an economic immigration program like Express Entry.

 

[HamiltonApplicant]

Huh? How do you do that? Do you mean make a refugee claim?

I am not sure both are one and the same.

 

[HamiltonApplicant]

H&C would fail in this case. That's bad advice.

If OP is not a citizen by descent - then OP would have to look to become a PR through an economic immigration program like Express Entry.

I am not sure whether OP has any pressing humanitarian reason to come to Canada, his relatives in Canada can even sponsor him if some conditions apply...

 

[alphazip]

yeah the retroactivity component makes it tricky, but you are possibly right - thank you for your help

The citizenship tool takes retroactivity into account and, if you try it, you'll notice that it asks specifically about whether your father applied to retain his Canadian citizenship. If that wasn't an important factor (in this case, the deciding one), it wouldn't have been asked.

 

[scylla]

I am not sure both are one and the same.

No - they aren't. Refugee and H&C are two completely separate programs with different requirement.