First generation limit to citizenship by descent

[hawk39]

Hi! One thing I can't find a clear answer to... I'm a Canadian Citizen by descent -- my mom was born in Hamilton, Ontario.

My son was born in the USA in 2002, before the rules changed to limit to one generation and before I got my proof of citizenship. Were people born before 2009 grandfathered in (since they were "considered" citizens at the time of birth), or would we have had to apply for his proof of citizenship before the rules changed? What I've read isn't clear.

Thanks!

If the parent had gotten their proof of citizenship after the 2009 changes, then no, children are not "grandfathered" because of the first generation limit, not because of the retroactivity to the parent's date of birth.

For your situation, if you had gotten your proof of citizenship before the 2009 changes, then you would be able to apply for your child's citizenship today because he would have been considered a citizen in 2002, and the current law does not take away his eligibility regardless of what generation he is

If you had gotten your proof of citizenship after the 2009 changes, then your son would not be eligible because even though you would be considered a citizen since your birth because of the retroactivity, the first generation limit of the 2009 Act now supersedes the retroactivity.

If you want more details, what is your birth year, and when did you receive your proof of citizenship?

 

[alphazip]

One slight clarification: the OP didn't have to get proof of citizenship before 2009, he just had to have been a Canadian citizen at the time his son was born in 2002. So, in this case, if he was born born in/after 1977 to a Canadian-citizen parent (i.e., his mother hadn't lost her Canadian citizenship by naturalizing as a U.S. citizen before 1977), then he would have been a Canadian citizen when his son was born in 2002. And, his son would have inherited Canadian citizenship from him, which the 2009 changes would not have taken away. Of course, the OP's date of birth and the mother's date (if any) of U.S. naturalization are key to this scenario.

 

[hawk39]

I would have to disagree. If the DennyA was born after the commencement of the 1977 Act, he/she would be described under 3(1)(b) of the current citizenship act. His/her son would also be described under 3(1)(b). However, under the first generation limit described under 3(3):

"Paragraphs (1)(b), (f) to (j), (q) and (r) do not apply to a person born outside Canada

• (a) if, at the time of his or her birth, only one of the person’s parents was a citizen and that parent was a citizen under paragraph (1)(b), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs"

which means 'if the parent is a citizen under (1)(b), then the child is not a citizen under (1)(b)'. If DennyA had gotten his/her proof between 2002 and 2009, then he/she would be under the 1977 Act, which did not have the generation limit, and the retroactivity granted from his proof of citizenship would have applied to his/her son would have carried over today because of the transitional paragraph. So due to the first generation limit, I think it's too late to claim citizenship for his/her son if DennyA had gotten his/her citizenship certificate after the implementation of the 2009 Act.

Running DennyA's son's case, assuming that DennyA applied for his/her certificate after 2009, through the tool resulted in an inconclusive answer:

• Born outside Canada
• No Crown Servant parents or grandparents
• Not naturalized as a British subject in Canada, parent not born before Canada before 1947
• Born before 1981 and 2009, one parent was Canadian
• Parent born outside Canada to Canadian parent, parent did not apply for citizenship, applicant was never issued a certificate, parent was not born between 1947 and 1977
• Parent born after 1977, parent was not issued certificate before 2009
• Don't have a Canadian parent born outside Canada before 1947
• Case is too complex

In either case, it might be best for DennyA's son to apply for his citizenship certificate to be sure.

 

[alphazip]

Proof of citizenship means proof of an existing status. The proof doesn't grant that status. If a person was born abroad in (say) 1978 to a Canadian citizen parent, he/she became a Canadian citizen at birth. If that Canadian citizen then had a child born abroad, that child also acquired citizenship at birth, with the condition that he/she had to apply to retain said citizenship by age 28. The 2009 changes eliminated the latter requirement for anyone who had not reached that age. The 2009 changes also expressly did not take citizenship away from anyone who already had it.

Wikipedia is not a great source, because anyone can edit it, but I refer to https://en.wikipedia.org/wiki/Canadian_nationality_law#2009_amendments:

"In a scenario, the new rules would apply like this: A child is born in Brazil in 2005 (before the new rules came into effect) to a Canadian citizen father, who himself is a born abroad citizen by descent....automatically becomes a Canadian citizen at birth. Another child born after 17 April 2009 in the same scenario would not be considered a Canadian citizen."

There is no mention of a requirement that the father had to have received proof of citizenship before 2009.

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

"Persons born outside Canada between February 15, 1977, and April 16, 2009
During that period, a person born outside Canada to a Canadian parent was automatically a Canadian citizen regardless of whether they were born outside Canada after the first generation."

The word "automatically" would seem to mean that the person became a citizen without the necessity of performing any kind of act, such as applying for proof of his/her status. If the OP was automatically a citizen at birth, then his son, born before April 17, 2009, was likewise automatically a citizen at birth, and the 2009 changes would not have removed their citizenship.

 

[hawk39]

I guess this is one situation where we agree to disagree semantically. I don't believe it was the intent of the legislators and the transitional paragraph to 'keep the door open' for children of citizens by descent born between 1977 and 2009; I believe it was just to serve as a statement of clarity for those that had citizenship as a second or subsequent generation that it would not be revoked under the first generation limit, and that the 2009 change was the cutoff. I will admit though that this is a potential source of ambiguity; perhaps if children born after the commencement of the 2009 Act were classified differently, such as 3(1)(b.1), then the law could read as:

'Paragraphs (1)(b.1), (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), (b.1), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs '

This would still allow those born between 1977 and 2009 as a second generation eligible under 3(1)(b) to apply for proof of citizenship, and those born in the second generation after the commencement of the 2009 Act under 3(1)(b.1) would continue to be ineligible.

Of course this is only my interpretation, and should not be taken as the actual law. If DennyA was born after the 1977 Act was implemented, then his/her son should just apply for the citizenship certificate as that would be the only way to know for sure.

 

[alphazip]

I guess this is one situation where we agree to disagree semantically. I don't believe it was the intent of the legislators and the transitional paragraph to 'keep the door open' for children of citizens by descent born between 1977 and 2009; I believe it was just to serve as a statement of clarity for those that had citizenship as a second or subsequent generation that it would not be revoked under the first generation limit, and that the 2009 change was the cutoff. I will admit though that this is a potential source of ambiguity; perhaps if children born after the commencement of the 2009 Act were classified differently, such as 3(1)(b.1), then the law could read as:

'Paragraphs (1)(b.1), (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), (b.1), (c.1), (e), (g), (h), (o), (p), (q) or (r) or both of the person’s parents were citizens under any of those paragraphs '

This would still allow those born between 1977 and 2009 as a second generation eligible under 3(1)(b) to apply for proof of citizenship, and those born in the second generation after the commencement of the 2009 Act under 3(1)(b.1) would continue to be ineligible.

Of course this is only my interpretation, and should not be taken as the actual law. If DennyA was born after the 1977 Act was implemented, then his/her son should just apply for the citizenship certificate as that would be the only way to know for sure.

Let's look at the Citizenship Act as is existed before April 17, 2009:

https://laws-lois.justice.gc.ca/eng/acts/c-29/20071223/P1TT3xt3.html

"3 (1) Subject to this Act, a person is a citizen if
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen"

Then, the Citizenship Act as it appeared on April 17, 2009:

https://laws-lois.justice.gc.ca/eng/acts/c-29/20090417/P1TT3xt3.html

"(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
(4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen"

Please explain why the plain language of the pre-2009 Act did not make the OP (assuming, of course, that he was born abroad to a Canadian-citizen parent after February 14, 1977) and the OP's son (born in 2002) Canadian citizens.

If they were Canadian citizens before 2009, why wouldn't they (specifically, the OP's son) be saved by subsection 4 of the amended Act?

Where is the requirement, in either the pre or post 2009 Act, that a person apply for and be granted proof of citizenship by a certain date, or forever be locked out of the status of citizen?

 

[hawk39]

Let's look at the Citizenship Act as is existed before April 17, 2009:

https://laws-lois.justice.gc.ca/eng/acts/c-29/20071223/P1TT3xt3.html

"3 (1) Subject to this Act, a person is a citizen if
(b) the person was born outside Canada after February 14, 1977 and at the time of his birth one of his parents, other than a parent who adopted him, was a citizen"

Then, the Citizenship Act as it appeared on April 17, 2009:

https://laws-lois.justice.gc.ca/eng/acts/c-29/20090417/P1TT3xt3.html

"(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
(4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen"

Please explain why the plain language of the pre-2009 Act did not make the OP (assuming, of course, that he was born abroad to a Canadian-citizen parent after February 14, 1977) and the OP's son (born in 2002) Canadian citizens.

If they were Canadian citizens before 2009, why wouldn't they (specifically, the OP's son) be saved by subsection 4 of the amended Act?

Where is the requirement, in either the pre or post 2009 Act, that a person apply for and be granted proof of citizenship by a certain date, or forever be locked out of the status of citizen?

I can't find any evidence to back up my interpretation, so I concede to your reasoning. I believed it to be loophole not in the spirit of the first generation limit, hence my interpretation of the language of the Act.

 

[hawk39]

@DennyA:

@alphazip's interpretation is correct, so please disregard my previous post. Children of citizens by descent are "grandfathered in" as long as the citizen parent was a citizen when the child was born before the 2009 Act, and not because the citizen by descent parent received citizenship through the 2009 Act . So for your situation, it will come down to under which Citizenship Act you were born under.

If you were born before February 14, 1977 and your mother was married when you were born, your mother could not have passed down Canadian citizenship to you because under the 1947 Act, only Canadian fathers and unwedded mothers could pass down citizenship to their children. You received your citizenship as a first generation "Lost Canadian" under 3(1)(h) of the 2009 Act, but that also made your son ineligible as a second generation under the first generation limit.

If your mother was not married when you were born, and had not or never naturalized as an American citizen, then in order for you to have received your citizenship at birth at that time, your mother would have needed to have your birth registered with the Canadian government within two years, or during the delayed registration period between 1977 and 2004. Since this did not happen, you became a citizen as a first generation under 3(1)(g) of the 2009 Act, but that also made your son ineligible.

If your mother was not only unmarried, but also had naturalized as an American citizen before the implementation of the 1977 Act, then you were not born as a Canadian citizen because your mother was no longer considered a Canadian citizen due to the prohibition of multiple citizenship at the time. Your mother would had her citizenship restored as a "Lost Canadian" under 3(1)(f) of the 2009 Act, and you became a citizen as a first generation under 3(1)(g), but that also made your son ineligible.

If you were born on or after February 14, 1977, regardless of your mother's martial status or nationality status, as long as your mother had not officially applied to and renounced her citizenship to the Canadian government, then you were born as a Canadian citizen under 3(1)(b) of the 1977 Act. Your son was also born a citizen under the same rule when he was born in 2002, because there was not generation limit under that Act. 3(4) of the 2009 Act states that 'citizens by descent in any generation before the commencement of the 2009 Act would remain citizens, except those beyond the first generation whose parent had their citizenship restored or conferred because of the Act'; because your son was born a citizen in 2002, even though he is in the second generation, he is still a citizen today.

@alphazip, anything else you would like to add?

 

[alphazip]

Nope...you did a great job of covering all the possibilities!

 

[nicolass]

I have 2 Canadian friends of mine living in Dubai. They had a baby girl in Dubai in 2012. She received her Canadian citizenship by descent.

If she grows up and marries another Canadian born in Dubai, neither of them will be able to pass on any citizenship to their child. The child will be stateless.

There is a decent sized Canadian community there so this scenario is possible. How can the law have such a giant hole? Keep in mind that Dubai doesn’t grant citizenship to expats and assuming the baby girl and her future husband only have Canadian citizenship (baby girl only has Canadian).

 

[scylla]

I have 2 Canadian friends of mine living in Dubai. They had a baby girl in Dubai in 2012. She received her Canadian citizenship by descent.

If she grows up and marries another Canadian born in Dubai, neither of them will be able to pass on any citizenship to their child. The child will be stateless.

There is a decent sized Canadian community there so this scenario is possible. How can the law have such a giant hole? Keep in mind that Dubai doesn’t grant citizenship to expats and assuming the baby girl and her future husband only have Canadian citizenship (baby girl only has Canadian).

The short answer to this question is that Canada doesn't design its citizenship rules around the rules of other countries.

If this happens, these parents will have several options available to them including coming to Canada to give birth to the child there so that the child will be a Canadian citizen by birth, or alternatively moving to Canada for a period of time to sponsor the child for PR and then convert this to citizenship.

 

[canuck78]

The short answer to this question is that Canada doesn't design its citizenship rules around the rules of other countries.

If this happens, these parents will have several options available to them including coming to Canada to give birth to the child there so that the child will be a Canadian citizen by birth, or alternatively moving to Canada for a period of time to sponsor the child for PR and then convert this to citizenship.

I have 2 Canadian friends of mine living in Dubai. They had a baby girl in Dubai in 2012. She received her Canadian citizenship by descent.

If she grows up and marries another Canadian born in Dubai, neither of them will be able to pass on any citizenship to their child. The child will be stateless.

There is a decent sized Canadian community there so this scenario is possible. How can the law have such a giant hole? Keep in mind that Dubai doesn’t grant citizenship to expats and assuming the baby girl and her future husband only have Canadian citizenship (baby girl only has Canadian).

If the couple wants to have the child in Canada and use a provincial healthcare program they will need to meet the residency obligation for that province. At minimum they will have to remain in Canada for 6 months but the residency obligation to be able to qualify for health coverage can be up to 12 months.

 

[dpenabill]

I have 2 Canadian friends of mine living in Dubai. They had a baby girl in Dubai in 2012. She received her Canadian citizenship by descent.

If she grows up and marries another Canadian born in Dubai, neither of them will be able to pass on any citizenship to their child. The child will be stateless.

There is a decent sized Canadian community there so this scenario is possible. How can the law have such a giant hole? Keep in mind that Dubai doesn’t grant citizenship to expats and assuming the baby girl and her future husband only have Canadian citizenship (baby girl only has Canadian).

As @syclla aptly noted, "Canada doesn't design its citizenship rules around the rules of other countries."

The scenario described is no "hole" in Canada's immigration and citizenship scheme. The law is explicit, citizenship by birth is not applicable to persons born outside Canada UNLESS the child qualifies for citizenship by descent. While there are numerous provisions prescribing when a child born outside Canada qualifies for citizenship by descent, unless one of the narrow exceptions applies (such as child born to citizen parent born abroad when the grandfather was a Crown Servant exception) the rules are clear that citizenship by descent does not apply unless one of the parents was either born in Canada or was a naturalized citizen at the time of the child's birth.

The fact that not everyone who is a biological descendant of someone with status in Canada is automatically a Canadian citizen is not a gap. It is intended. It is a deliberate and explicit part of Canada's citizenship scheme. (Remember, this approach to citizenship by descent was adopted by a Conservative government which had overt policy objectives aimed at limiting citizenship to those with continuing connections to Canada.) Note, it also warrants remembering, NOT all persons born IN Canada are Canadian citizens by birth.

Also note that the Federal Courts have ruled that citizenship is a *privilege* and this applies to born-in-Canada citizenship as well as citizenship derived from other statutory provisions. Thus, the Federal Courts have ruled, Parliament has the power to decide who is and who is not a citizen; indeed, for much of the 20th century many who were born in Canada were deemed to NOT be Canadian citizens; and, moreover, the Federal Courts have ruled that as a "privilege" even those who have citizenship because they were BORN IN Canada can have that taken away by Parliament, and indeed until repealed by the Trudeau government there were Citizenship Act provisions pursuant to which even born in Canada citizens could have their citizenship striped from them.)

NONETHELESS (apart from and in addition to paths to citizenship through PR, such as being sponsored for PR then qualifying for a grant of naturalized citizenship), there are at least two provisions in the Citizenship Act which will give the Minister authority to GRANT citizenship to a stateless child.

One is discretionary. Under subsection 5(4) Citizenship Act the Minister has discretion to "grant citizenship to any person to alleviate cases of statelessness" despite any other provision in the Citizenship Act.

The other provision, subsection 5(5) Citizenship Act, provides that the Minister MUST GRANT citizenship to a person born outside Canada (after 2008) who has a birth parent who was a Canadian citizen at the time of the birth and who has always been stateless and who meets the other requirements. For those qualifying for this grant of citizenship, no oath of citizenship is required.

The other requirements include an age restriction (must be done before the person is 23 years old) and a presence-in-Canada requirement (a 3/4 rule), but for example does NOT require the person be sponsored for or otherwise become a Permanent Resident first. Thus, for example, a child in Canada pursuant to temporary resident status will be able to qualify for this grant of citizenship.

The latter is basically a pathway for second-generation abroad stateless children to become citizens IF and WHEN there is enough of a connection to Canada, as measured by actual physical presence in Canada.

OTHERWISE . . . as others have observed, the parents are in control of decisions which will affect the status of the child, including deciding where to be located when the child is born, to choose to be in Canada for example to insure the child has citizenship status in Canada.

By the way, it is simply not true that "If the couple wants to have the child in Canada they will need to meet the residency obligation for that province." There are residency requirements to qualify for health care coverage, but a Canadian citizen can arrive in Canada and give birth within days if that is what the birth parent decides to do.

 

[canuck78]

As @syclla aptly noted, "Canada doesn't design its citizenship rules around the rules of other countries."

The scenario described is no "hole" in Canada's immigration and citizenship scheme. The law is explicit, citizenship by birth is not applicable to persons born outside Canada UNLESS the child qualifies for citizenship by descent. While there are numerous provisions prescribing when a child born outside Canada qualifies for citizenship by descent, unless one of the narrow exceptions applies (such as child born to citizen parent born abroad when the grandfather was a Crown Servant exception) the rules are clear that citizenship by descent does not apply unless one of the parents was either born in Canada or was a naturalized citizen at the time of the child's birth.

The fact that not everyone who is a biological descendant of someone with status in Canada is automatically a Canadian citizen is not a gap. It is intended. It is a deliberate and explicit part of Canada's citizenship scheme. (Remember, this approach to citizenship by descent was adopted by a Conservative government which had overt policy objectives aimed at limiting citizenship to those with continuing connections to Canada.) Note, it also warrants remembering, NOT all persons born IN Canada are Canadian citizens by birth.

Also note that the Federal Courts have ruled that citizenship is a *privilege* and this applies to born-in-Canada citizenship as well as citizenship derived from other statutory provisions. Thus, the Federal Courts have ruled, Parliament has the power to decide who is and who is not a citizen; indeed, for much of the 20th century many who were born in Canada were deemed to NOT be Canadian citizens; and, moreover, the Federal Courts have ruled that as a "privilege" even those who have citizenship because they were BORN IN Canada can have that taken away by Parliament, and indeed until repealed by the Trudeau government there were Citizenship Act provisions pursuant to which even born in Canada citizens could have their citizenship striped from them.)

NONETHELESS (apart from and in addition to paths to citizenship through PR, such as being sponsored for PR then qualifying for a grant of naturalized citizenship), there are at least two provisions in the Citizenship Act which will give the Minister authority to GRANT citizenship to a stateless child.

One is discretionary. Under subsection 5(4) Citizenship Act the Minister has discretion to "grant citizenship to any person to alleviate cases of statelessness" despite any other provision in the Citizenship Act.

The other provision, subsection 5(5) Citizenship Act, provides that the Minister MUST GRANT citizenship to a person born outside Canada (after 2008) who has a birth parent who was a Canadian citizen at the time of the birth and who has always been stateless and who meets the other requirements. For those qualifying for this grant of citizenship, no oath of citizenship is required.

The other requirements include an age restriction (must be done before the person is 23 years old) and a presence-in-Canada requirement (a 3/4 rule), but for example does NOT require the person be sponsored for or otherwise become a Permanent Resident first. Thus, for example, a child in Canada pursuant to temporary resident status will be able to qualify for this grant of citizenship.

The latter is basically a pathway for second-generation abroad stateless children to become citizens IF and WHEN there is enough of a connection to Canada, as measured by actual physical presence in Canada.

OTHERWISE . . . as others have observed, the parents are in control of decisions which will affect the status of the child, including deciding where to be located when the child is born, to choose to be in Canada for example to insure the child has citizenship status in Canada.

By the way, it is simply not true that "If the couple wants to have the child in Canada they will need to meet the residency obligation for that province." There are residency requirements to qualify for health care coverage, but a Canadian citizen can arrive in Canada and give birth within days if that is what the birth parent decides to do.

Thanks for clarifying. My late night posts don’t always seem as clear as I thought they were in the morning. What I meant to say is that citizens who want to use Provincial healthcare will need to meet the residency requirements to access healthcare in that province. Depending on the province that could mean remaining in Canada for 6-12 months. If they don’t plan on meeting the residency obligation they can pay for the healthcare they use.

 

[dpenabill]

Thanks for clarifying. My late night posts don’t always seem as clear as I thought they were in the morning. What I meant to say is that citizens who want to use Provincial healthcare will need to meet the residency requirements to access healthcare in that province. Depending on the province that could mean remaining in Canada for 6-12 months. If they don’t plan on meeting the residency obligation they can pay for the healthcare they use.

I am guessing the way I clarified this came across brusque. Sorry. It does seem I have a tendency to express corrections (so to say) all too bluntly. My wife often chastises me about this, accusing me of not really being Canadian (despite having been here now for nearly two decades and this truly being my home). I blame it on habits derived from having spent so many years in the States, including a lot of years in New York. Can't seem to wash that crap off.

But my wife takes other opportunities to remind me, like when I failed to recognize who Diane Krall is (again, my wife chastises me, "if you do not know who Diane Krall is, you are not really a Canadian"). Similarly, the other night I was watching a Neil Young concert video and he sang the folk song "Four Strong Winds," and described how he spent all his money playing this song on a jukebox, when he was a teen growing up in Manitoba, as if this was the most popular song in the '60s. I was not familiar with it. I did not know who Ian and Sylvia Tyson were. "Not really Canadian" my wife chastised me once again.

Of course it is only me she feels this way about, and she knows she is being narrow-minded, especially since Canada is so diverse, embracing culture and traditions amidst which many will have no idea who Diane Krall or Ian Tyson are.

I have other excuses. Being old and suffering from CRS (can't remember stuff), forgetting for example that "Four Strong Winds" was also performed by The Band, with Neil Young, in one of my favourite concert videos, The Last Waltz.

More relevant to the topic, it seems like many forget the history of Canadian citizenship, and the morass of complexities affecting who was and who was not a Canadian citizen depending on where they were born, who the parent was, when they were born or when was the parent born, subject to contingencies like whether the person took affirmative steps to retain citizenship, and for a long while the automatic loss of Canadian citizenship if a person became the citizen of another country. So now we have this lengthy "right to Citizenship" statute with scores of subsections covering the labyrinth of possibilities arising under the 1947 and 1977 versions of the Act. A legacy of complexities.

But going forward, with a few wrinkles here and there, for those born after 2008 or so, who is a Canadian citizen by birth (born in Canada or a citizen by descent) is quite clearly prescribed. No significant gaps or holes.

It warrants emphasizing that Canada has NEVER guaranteed citizenship by descent for children born-abroad to Canadian citizens, although since 1977 the statutes have prescribed that first-generation born abroad children are citizens.