How to ensure your child does not get Canadian citizenship?
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Whereupon, he will then try to have the same argument with IRCC, who will point him at exactly the same legislation.links18 said:
screech339
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Anyway I think it is settled. I PMed OP telling him that despite applying for proof of citizenship for my children 6 months after they were born (Canadian by descent), the citizenship certificate says "citizen since (birth date)". He believed that certificate will list date of when application was submitted / processed as starting date of citizenship for Canadian descents, not birth date of person when citizenship begins.
He believed the wording "Right to Citizenship " in itself as written in law does not mean Automatic Citizenship. He believed that the person has a right to get citizenship whenever he desires to get it. In other words, he doesn't have official citizenship until he applied for proof of citizenship. And when he does decides to apply for proof of citizenship say at age 30, it will list official starting date of citizenship at age 30 when he applied for proof of citizenship. If he doesn't apply for proof of citizenship, it means he doesn't have it. But he has a right to get citizenship when he want to get it whenever he desires to get it at a later time, without the actual "process of applying for citizenship" that a PR would have to go through to get it.
He believed the wording "Right to Citizenship " in itself as written in law does not mean Automatic Citizenship. He believed that the person has a right to get citizenship whenever he desires to get it. In other words, he doesn't have official citizenship until he applied for proof of citizenship. And when he does decides to apply for proof of citizenship say at age 30, it will list official starting date of citizenship at age 30 when he applied for proof of citizenship. If he doesn't apply for proof of citizenship, it means he doesn't have it. But he has a right to get citizenship when he want to get it whenever he desires to get it at a later time, without the actual "process of applying for citizenship" that a PR would have to go through to get it.
tracker_01:Some preliminary observations.
This is a long post, despite the fact that the essential observation can be stated rather simply: family sponsored PR is NOT an option for you and your child in the situation you describe.
This is, or at least should be so readily apparent, further elaboration or explanation should not be necessary. But it appears, perhaps due to wishful thinking, you do not recognize this and are not persuaded despite the fact that everyone here has said this, one way or another, and most have said it rather emphatically.
There is more than a little repetition below. I could consolidate this better, but I have already spent too much time on this. To a large extent I tend to address some issues in some depth but then later, farther down, I revisit these in greater depth.
I assume your quest is genuine, so I am making this further effort to help you understand that sponsored PR really is not an option. In particular, I assume you are genuinely seeking the best way to approach the situation you are in, trying to find a way for your child to live in Canada without the child losing citizenship in the home country. Most of what I observe here has been drafted over the course of several days, while I waited until the noise in this topic quieted to post a more comprehensive explanation, not merely to confirm what everyone has said (one way or another) but to help you better grasp the situation, at least from the Canadian side of issue . . . thus, my objective is to explain, as best I can (not being a Canadian lawyer), why you should forget the Canadian law aspect.
This post is not intended to engage in an argument about what the law in Canada is or should be, or how it should be applied. For purposes of your situation, there really is nothing to argue about, it is clear-cut, it really is clear-cut, which is to say that family sponsored PR is NOT an option. Again, I realize you are not persuaded of this. But, frankly, pursuing this approach further is a waste of time.
Thus, again, my effort here is to explain, as best I can (which might not be good enough, but I will give it my best shot), and thus this is not at all intended to be polemic, not an argument for this observation. It is an effort to explain it.
A large part of why I have given this much time and effort, to this, is that there are parallels in this scenario which recur relative to many, many issues one sees discussed in forums like this. Often there is confusion about what the rules are, and how they are in fact applied, due to this aspect getting tangled in views about what the law should be or how it should be applied. This subtext recurs again and again. In discussion after discussion, how-it-should-be is confused, or at least conflated, with how-it-is. I try to focus on the latter. And, the approach you have somewhat obstinately pursued here is perhaps as good an example as any to explore, and by doing so illustrate, how off-track things can and will too often get when the focus is on a personal how-it-should-be approach, without adequately grasping and coming to grips with the how-it-is. (For example, see observations below about alternative approaches to legal issues.)
Automatically-or-not a citizen: this is NOT the issue.
This observation, that family sponsored PR is NOT an option for you and your child, is NOT dependent on whether your child's Canadian citizenship is, or is not, as you describe it, "automatic." But, yes, the Federal Court has in fact ruled that "According to paragraph 3(1)(b) of the Act, any person born outside Canada after February 14, 1977, and at the time of the person’s birth one of the person’s parents was a Canadian citizen, is automatically a Canadian citizen by birth.", that is, the citizenship conferred on an individual by Section 3(1)(b) in the Citizenship Act is automatic (see paragraph 3 in decision by Justice Marineau in the Azziz case (this should link)). (In the spirit of fully explaining things, I will address this at some length further below.)
However, it was you, not me, that framed the issue in terms of whether or not citizenship was "automatic." In one of your posts you repeatedly refer to "if [I am right that] that child is automatically citizen." I never said it is correct to say the child is automatically a citizen (even though, again, one Federal Court justice has described it this way). In fact, what I said about this so-called difference, automatic-or-not, is that so far as I can discern there is no such difference in Canadian law . . . meaning no meaningful difference.
To be clear, in whatever way or terms you describe the mechanism or process pursuant to which the child of a naturalized citizen becomes a Canadian citizen as provided by Section 3(1)(b) in the Citizenship Act, or is identified as or recognized to be a Canadian citizen, your child will be recognized as and deemed to be a citizen if and when IRCC assesses the status of your child. An application to sponsor the child for PR status will necessarily trigger such an assessment. First, IRCC will assess your eligibility to sponsor a family member, which is predicated on your status as a naturalized Canadian citizen, and then IRCC will assess the relationship between you, the sponsor, and the child, and upon establishing that you are the child's parent that will establish the child's status as a Canadian citizen. Not a Foreign National. Not eligible to be sponsored for PR.
Sure, it might not happen this way, but that would be due to accident, mistake, or cheating. Actual outcomes are always subject to incidental anomalies. As someone else suggested, sure you could make the application and see how it goes.
But make no mistake, given the situation as is, there is no legal path (barring accident, mistake, or cheating) to sponsor your child for PR.
Big clue: there is NO application for citizenship for an individual who is a Canadian citizen by descent. No such application is available.
There is an application for proof of citizenship available. However, a person is not eligible to be issued proof of citizenship, that is a certificate of citizenship, unless they are a citizen. Only a person who is a citizen can successfully apply for and obtain proof of citizenship.
Your resistance to accept this, what really is clear cut, that family sponsored PR is NOT an option, appears to have made an impression on others here that you are either unreasonably obstinate or more interested in posturing argumentatively. This has led to some harshly negative commentary and even more or less hostility in personal tangents. What I suspect you fail to grasp, about this, is that most of those who have responded really are more interested in helping than arguing. But sure, frustration has led to some unwarranted remarks; but, to be frank, your apparent obstinacy has fueled their frustrations.
That aside, again I assume you are genuinely seeking the best way to approach the situation you are in, trying to find a way for your child to live in Canada without the child losing citizenship in the home country.
Alternative approaches to legal issues; argument-mining versus research-for-learning:
There are multiple ways to read and analyze statutes, regulations, official judicial decisions, official sources, reports and stories about how these sources have been applied, and other resources. How one reads and analyzes such sources depends in part on the purpose. For example, a lawyer trying to piece together a case does research with an eye toward composing an argument leading to those conclusions which will favour the lawyer's cause (the client's cause anyway). My sense, tracker_01, is that your approach is more of this sort. In your situation that is not helpful.
Another way to approach the research is focused on learning what the law is, how it works, and how it is applied, usually in an effort to explain the law as it is or to predict how the law is likely to be applied, or for a judge, how to best apply the law to a case before the court. Thus, for example, the lawyer trying to compose an opinion for a client, or a law clerk trying to help a judge best understand and apply the law to a case, will read and analyze the sources of information with the aim of understanding the law and its application. By the way, lawyers do far more of this than they do argument-mining.
The mistake many make is do the first, essentially argument-mining, before they have thoroughly done the learning research. One really needs to do the homework to figure out and understand, as best one can, what the law is and how it works first. Only then will argument-mining be of any use at all.
That is, argument-mining is bound to go off track, and often way, way off track, unless the learning research has been done first and done well. I have done both professionally (albeit regarding the law of jurisdictions other than Canada). For the last quarter-century I have mostly done the learning approach (in the course of my day job, writing explanations of law, mostly focused on changes in the law, for lawyers), but I was deep in the litigation trenches for more than a decade before that, and did my share of argument-mining then. And before that there was the initial learning research phase, which took years, years beyond earning a Juris Doctorate degree. (Yeah, I am an old man.)
However, I have no professional association or experience with Canadian law, Canadian immigration, or Canadian citizenship. I am no expert on Canadian immigration or citizenship law.
That said, I have diligently applied my education and experience in jurisprudence to certain issues and questions of Canadian law regarding immigration and citizenship. Thus, relative to a few particular immigration and citizenship issues, I have focused more than a little, for about eight years now, on what the Canadian law is, how it works, and how the bureaucratic process works. I have not spent much time or effort considering how to compile arguments to advance alternative positions regarding such issues (albeit, in doing the learning research, I have read and analyzed scores and scores of arguable positions on the issues, especially as these have been set out in official IAD and Federal Court decisions -- many times the court will set out the respective parties' arguments).
In contrast, on this issue at least, you appear focused on extracting what you think are arguable positions to support the proposition that, somehow, your child is eligible for sponsored PR. My sense is you have slid deeply into this unproductive distraction by failing to sufficiently grasp what the law is and how it works, skipping over the practical reality, clinging to argumentative positions (which, frankly, tend to be well off the mark) you believe will support your preferred outcome (they don't).
In this regard, it is important to recognize that the vast majority of law is well settled, and particularly so in regards to the law administered by bureaucracies, including IRCC, and not subject to much if any argument about what the law is or how it is applied. When it comes to litigation, the realm within which there are arguments to be made regarding the application of law in an actual case, what is contested, what is arguable, is usually fact-based, about what the particular facts are and thus how the law or rules should be applied to those particular facts. Thus there is rarely much argument about what the law is itself, except as to how it is to be interpreted and applied to the particular facts of the specific case.
If there has been a previous case with the precisely same facts, the decision in that case will ordinarily suffice to illuminate what the law is and how it is to be applied to those particular facts (unless the decision appears erroneous).
Thus, a big part of your query has been to seek information by or about someone who has indeed been in a very similar situation and attempted to obtain PR status for their child. However, as I previously posted:
Perhaps I should have qualified that observation, because it is about an anecdotal report by or about someone in a similar situation, not about an official decision. An official decision would illuminate things better, a lot better. To be clear, however, I am sure, very sure, an official decision would verify that sponsored PR is not available in this situation.
In particular, I have no doubt how this would go if the issue made it to the IAD, which would be in an administrative appeal of a denied sponsored PR application, or to the Federal Court. The latter could be a judicial review of an IAD decision affirming the denial of sponsored PR. It could also be, alternatively, in a Mandamus action to compel IRCC to process the sponsored PR application, since there is a significant likelihood IRCC will decline to process the sponsored PR application, return the application rather than deny it, so one avenue for review could be by bringing a Mandamus action to compel IRCC to process the application.
Leading back to the short answer to your query, that in so far as Canadian law is involved, your child (once born) is a Canadian citizen, even if for practical purposes that is not recognized until after some transaction with IRCC has taken place pursuant to which the child's status is determined.
Short answer to your query: If there is any option that will work, it will be pursuant to the laws of Country-X and not Canadian law.
Again (and again and again), sponsored PR status is NOT an option.[
Overall: If you are seriously seeking real options, a way for your child to live in Canada without losing citizenship in Country-X, if there are any such options those options will be pursuant to the laws of Country-X, not Canadian law.
I recognize this is not the answer you are looking for. This is, however, how it is.
Thus, if you are genuinely exploring how to deal with this situation, how you can arrange to have your child live in Canada without losing citizenship in the child's home country, you need the assistance of professionals in that country, in Country-X.
The Canadian aspect is the distraction here. Since I assume your effort is genuine, but I understand only the Canadian aspect, I am making this effort to help you understand the Canadian aspect as well.
While there are numerous flaws in your interpretation and analysis of the relevant Canadian law, the main thing you tend to overlook or fail to grasp is that it does NOT matter whether a child born abroad to a naturalized citizen is "automatically" a Canadian citizen or not. However you characterize the child's status, sponsored PR status is NOT an option. Not an option. The child is not eligible to be sponsored for family class PR.
And again, as I referenced in my previous post, and above, this is not to say this has not happened, or to insist it cannot happen. It might, by accident, by mistake, or by cheating. Indeed, no particularly creative imagination is necessary to conceive potential ways to game the system. None are foolproof. All would be foolish. All involve serious risks. But sure, there are ways in which the system might, possibly, be gamed. Whatever the odds of success, that is not the way to go. Not the way to go.
Conclusion: See a competent lawyer in Country-X.
I understand you are still not persuaded. But your recalcitrance, regarding this, appears rooted in a misguided effort to twist a preferred meaning from isolated bits of language, much of which is taken out-of-context, to advance erroneous conclusions. Yes, for example, your conclusions based on information about the Chan situation, and statements in the Rabin case, are wrong, and the Canadian PR status option is a NO-GO.
I explained, in my previous post, why neither the Chan situation nor the Rabin case support or help your cause. While apparently I did not do so well enough to persuade you, it appears you may not have made much an effort to understand the explanation, since you repeat the erroneous proposition that Section 3(1)(b) has not changed since 1977. This is NOT correct. It has changed. It has changed a lot.
As Justice Boivin explicitly states in the Rabin decision (this should link) (in paragraph 22):
". . . paragraph 3(1)(b) cannot be read in a vacuum."
Statutory interpretation (often referred to as statutory construction by jurists) does not always require a doctorate degree in jurisprudence, but it does demand understanding that the meaning of a particular provision often, perhaps usually, depends on the terms of the body of the statutory enactment (which it is a part of) as a whole. Even when it is not explicitly stated as such.
In particular, many, many official decisions specifically emphasize that the meaning of language in a statutory provision can only be interpreted with due consideration given the entirety of the legislative act. But there is no need to rely on this basic principle of statutory construction in regards to Section 3(1)(b), since the provision itself overtly incorporates the entirety of the Citizenship Act, since it explicitly states its terms are "subject to the Act."
Frankly, this is basic stuff, really basic stuff. And you get it wrong. Even after getting an explanation, you repeat the erroneous proposition Section 3(1)(b) has not changed since 1977 . . . despite the very obvious fact that it has changed, and indeed has changed a lot. (Perhaps ironically, in another post, in which you pose hypotheticals involving "Adam," you reference and acknowledge that the scope and application of Section 3(1)(b) (albeit without citing Section 3(1)(b) in particular) changed in 2009.)
Again, I assume you are genuinely exploring what options are available, and I am thus trying to explain, to illuminate why sponsored PR is not an option, addressing some of your other arguments about Canadian law and why they miss the point. Make no mistake, however, I am trying to explain this. I am not a Canadian lawyer, and my effort to explain may be clumsy, it may fail to persuade. But I am not arguing here, NOT making an argument that sponsored PR is unavailable in this situation. It is clear cut that sponsored PR is, simply, not an option. Not arguable. Not worth arguing about. I am just doing my best to explain this in a way that will help you understand it.
Framing the issue:
Is citizenship by descent automatically acquired or is it a matter of right?
I addressed this above; the following is merely a more in-depth explanation.
You persistently frame the Canadian law issue as depending on whether citizenship by descent is automatically acquired or is it a matter of right?, focusing on this as what matters, what makes the difference. This is not a real issue, at least not a meaningful one, let alone an issue that makes the difference.
Based on framing the issue this way, you argue your child will not be, upon birth, "automatically" a Canadian citizen, but rather have "a right to apply for citizenship." And therefore could be sponsored for PR.
No. That is not how it works.
Aside from the fact that there is NO such application for citizenship available, NONE, none whatsoever, this does not make your child eligible for sponsored PR. Even if you take the position that an application for proof of citizenship constitutes an "application for citizenship," (it doesn't but . . . ), and the child does not have Canadian citizenship (as a matter of fact or of law? not sure what you are asserting in this regard) unless and until such an application for proof is made and granted (that is not how it really works but . . . ), it is still the case that the child will NOT be eligible for sponsored PR status.
In particular, if and when you made a sponsored PR application for the child, one way or the other IRCC will not grant the child PR status, given the naturalized Canadian citizenship of at least one parent, since IRCC will recognize the child's Canadian citizenship, that the child is not a Foreign National, and therefore the child is NOT eligible for sponsored PR. (Well, again, apart from other possibilities due to accident, mistake, or cheating.)
To be clear: My observations do not assume the child is "automatically" a citizen.
And, again to be clear, I never framed the issue this way. That is, again to be clear, my previous observations were not premised on the proposition that "the child is automatically a citizen." My only reference to anything happening "automatically" was a reference to your characterization of the issue based on the Schneur Zalman Rabin case, when I stated:
What matters relative to the individual involved is the substantive law governing who and when citizenship is acquired. Substantively, for the most part those who acquire citizenship by descent acquire it at birth. This was not always how it worked (and there may also be current exceptions . . . there are numerous detailed provisions governing a wide range of particular and peculiar scenarios). Additionally, who acquires citizenship by descent has not always been the same (in particular, changes to the meaning and scope of Section 3(1)(b), thus who is a citizen pursuant to Section 3(1)(b), changed in 2009 and again in 2014).
For your situation, what matters is who has citizenship by descent and when is that citizenship substantively acquired under current law, and under current law, your child, the child of a naturalized Canadian citizen, will acquire Canadian citizenship at birth, and if born abroad that will be citizenship by descent. That is the applicable substantive law. Like it or not, that is what it is.
The process, or procedure, pursuant to which a given person is identified as a citizen, or recognized to be a citizen, and thus afforded the benefits and privileges of citizenship (like the entitlement to remain in Canada, such as what is at issue in the Chan situation), does not qualify or control the substantive legal effect (Canadian citizenship by descent at birth) when at least one parent is a naturalized citizen at the time of the child's birth.
This is so basic, so fundamental, I did not realize the extent to which you were clinging to this (largely artificial) distinction about acquiring citizenship automatically-or-not.
Again, in whatever way you characterize the process for the child to be recognized as a Canadian citizen, under current law, substantively a child born abroad to a naturalized Canadian citizen acquires Canadian citizenship by descent and does so at birth.
That said, the Federal Court has explicitly interpreted Section 3(1)(b) to confer citizenship "automatically."
As I also noted above, Justice Martineau stated, at paragraph 3 in his decision deciding the Azziz case (this should link):
"According to paragraph 3(1)(b) of the Act, any person born outside Canada after February 14, 1977, and at the time of the person’s birth one of the person’s parents was a Canadian citizen, is automatically a Canadian citizen by birth."
According to Justice Martineau's official decision, interpreting paragraph 3(1)(b) of the Act, the child is "automatically" a Canadian citizen by birth.
I do not cite this to argue the point. As I have already outlined, how one describes the process or mechanism by which a child is recognized to have citizenship by descent is not the real issue. Whether one describes it as automatic-or-not does not matter. Substantively, if the child has a parent who is a citizen at the time the child is born (parent must be a first generation or naturalized citizen for a child born after 2009), the child is, as of the birth, a Canadian citizen by descent.
By the way: the Azziz case illustrates just how harsh the law can be. The child, Farid Azziz, was denied a certificate of citizenship, and Justice Martineau upheld this decision. Reason was that the parents, both Canadian citizens, failed to prove that either was the actual parent of this child. Later they made an application to sponsor the child for PR status. Again denied, again because they still failed to prove they were the actual parents. They subsequently made an application on behalf of the child, seeking PR status based on H&C grounds. By the time this last case was heard in the Federal Court, Farid was six years old, and had been living with his Canadian citizen "parents" all his life. Still denied. Thus, these Canadian citizens cannot return to live in Canada unless they are willing to leave the child behind. For the latter case, see http://canlii.ca/t/gk2zd
Gabriel Chan and Rabin Revisited:
You tend to cherry-pick particular phrases, interpret them out-of-context, extrapolate unfounded and sometimes overtly erroneous conclusions, to make the case that Canadian citizenship by descent is a right, but as if it is a right of no import or effect unless there is an application for citizenship. Basically you torture elements in the Chan situation and the Rabin case to support your preferred interpretation of how the law works . . . with rather minimal effort, it appears, to actually understand how the law actually works.
I already addressed some aspects of how your interpretation is wrong, above, regarding your repetition of the erroneous statement that there have been no changes to Section 3(1)(b).
And, it should be a big, readily grasped clue, that there is no way, no application form or process available, for a person to apply for citizenship based on citizenship by descent.
And I am guessing you are confusing mother and father in the Rabin decision (this should link). (It was Rabin's mother who was issued a certificate of citizenship in 2010, and is "deemed to be a citizen from the time she was born.")
Chan in particular:
In any event, most of what you try to extrapolate from statements in the Chan situation goes back to confusing the process, or procedure (making an application for proof of citizenship), pursuant to which a given person is identified as a citizen, or recognized to be a citizen, and thus afforded the benefits and privileges of citizenship (like the entitlement to remain in Canada, such as what is at issue in the Chan situation), confusing that with the substantive law governing who acquires citizenship by descent and when it is acquired.
Assuming it is true, as alleged, that Chan was born in 1987 or 1988 and that at that time his father was a Canadian citizen, the key question in the Chan situation is not whether Chan was a citizen at the time he was detained (given these facts, he was), but whether CBSA's detention of Chan unlawfully interfered with Chan's citizenship rights of mobility. CBSA can detain persons, even Canadian citizens, if there is a legitimate government interest and the detention is a reasonable means of protecting or advancing that government interest. So the main issue is whether CBSA's continued detention was reasonable once CBSA had been presented with evidence of Chan's Canadian citizenship.
If the case goes to trial, there will of course be multiple issues. My impression is that as of the time the Star article was published, the government was not conceding that Chan is a Canadian citizen. This makes sense. The burden of proving his citizenship is on Chan (unless and until he is issued a certificate of citizenship), and as the Azziz case (among a number of others) illustrates, Canada sometimes challenges the evidence of citizenship.
But, if it is indeed proven that Chan's father was a Canadian citizen at the time Chan was born (in 1987 or 1988), that will prove Chan is a citizen. Assuming Chan prevails on that issue, then the issue will be whether CBSA should have recognized Chan's Canadian citizenship, and if so, when CBSA should have recognized this and correspondingly treated Chan as a Canadian citizen. CBSA might take the position that in the absence of Canadian documentation (Canadian birth certificate, Canadian certificate of citizenship, or Canadian passport, or some other secured or enhanced Canadian identification showing Canadian status) in conjunction with nothing in Chan's immigration history showing Chan's Canadian citizenship (GCMS, FOSS, or such), that CBSA properly treated Chan as a non-citizen. And indeed, the latter could be the case, but even if so that would not mean Chan was not a citizen . . . that is, it is entirely possible that it was proper for CBSA to treat Chan as a non-citizen unless and until Chan's citizenship was established and officially documented, even though he was a citizen.
In any event, again, really, the Chan situation does not help your cause.
Note: Sure, at first Canada may approach and treat your child as not having Canadian citizenship. But that does mean the child is eligible to be sponsored for PR . . . as soon as you apply to sponsor the child, your status and relationship to the child will be examined and determined, to determine if you are qualified to sponsor this particular child . . . and (again, barring an anomalous result due to accident, mistake, or cheating) this will show the child is a Canadian citizen, by descent, not a Foreign National, and is not eligible for sponsored PR status.
Consider the Chan situation arising in a different context: Chan making an application for PR, in a Provincial Sponsorship program, perhaps, or FSW seeking Express Entry, and revealing in that application that he had a Canadian tie in that his father was a naturalized or born-in-Canada citizen. The application would be returned to Chan because, on the fact of it he is not a Foreign National, not eligible for PR status, because he is already a Canadian citizen . . . even though Chan did not first apply for proof of citizenship and did not claim citizenship. That is how it would go, again barring accident or mistake.
The Rabin decision in particular:
Again, I am guessing you are confusing mother and father in the Rabin decision (this should link). (Again, it was Rabin's mother who was issued a certificate of citizenship in 2010, and is "deemed to be a citizen from the time she was born.")
I admit my previous attempt to explain why this case does not help your cause was not all that clear, and to some extent missed the important point of the case, and was more about the court's rejection of Rabin's retroactivity argument than about the status of Rabin's mother at the time of Rabin's birth.
In any event, yes, in 2010 Rabin's mother was determined to be a Canadian citizen and she was deemed to be a citizen from the time she was born. Rabin, nonetheless, was determined to not have acquired citizenship by descent, in effect barred by the operation of Section 3(3)(a).
There have actually been various approaches to this situation, since as it is easy to guess, there are actually many people in the world in a situation quite similar to Rabin's:
Parent was not a Canadian citizen at the time of the birth, due to how the pre-1977 law work, and there was no restoration of the parent's citizenship even after 1977 until 2009. Then in 2009 the parent's citizenship is, in effect, restored, deemed to be effective as of the parent's birth. But for those who were not themselves born in Canada, as of 2009 their children born abroad do not acquire citizenship by descent.
Take Adam and Ian Jabour for example. Their father was deemed a Canadian citizen as a result of the changes to the law in 2009. His citizenship was deemed retroactive to his date of birth. Adam and Ian, however, have been denied certificates of citizenship. See http://canlii.ca/t/fpvf2
Somewhat similarly Barbara and Helen Kinsel. Their father, William Kinsel, likewise became a Canadian citizen by virtue of changes to the law in 2009, deemed retroactive to his birth, but nonetheless his daughters Barbara and Helen were denied certificates of citizenship and that decision was upheld by the Federal Court. See http://canlii.ca/t/fvj5x
The Federal Court decision in the Kinsel case was further heard and decided by the Federal Court of Appeal. That court also upheld the denial of citizenship certificates to Barbara and Helen Kinsel.
In these (and other cases), you might readily extract isolated statements and phrases which might appear to support propositions favouring your interpretation of the law. To seize on such language would be a mistake.
None of these cases depended on concluding the parent was not a citizen at the time of the birth. They actually state the contrary, that given the 2009 changes the parent is deemed to have been a Canadian citizen as of the parent's birth (thus before the children were born). So, why then did that result in the children of these parents not being deemed a citizen pursuant to Section 3(1)(b)?
These cases say these children actually did become entitled to citizenship except for the operation of Section 3(3)(a), which simultaneously foreclosed their entitlement to citizenship.
To my view, the various ways in which the courts have worked their way to largely the same outcome, is not the important part. The outcomes, regardless of the reasoning applied, were the same: in so far as the operation of the changes in 2009, those who are citizens by virtue of those changes are either citizens as of the date of their birth or as of the date citizenship was previously lost. For your purposes, the important part is that the citizenship is as of the date of birth.
And, thus, the part which is important for you to understand, is that for those born after 2009, who are within the scope of Section 3(1)(b) (as affected by changes in 2009 and since), there is no doubt: their citizenship by descent is acquired at birth.
FINALLY
Finally: if the difference you attempt to make, that is, that the child's citizenship is a matter of right but the child is not "automatically" a citizen, meant the child had no citizenship until an application for citizenship is made (despite there being no such application available), consider how and why it could be different for children who are citizens pursuant to section 3(1)(a):
"Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977"
Such children are citizens (with some exceptions it should be noted) with no need to apply for anything. They will still need to prove their citizenship if they apply for a Canadian passport. If they somehow have left Canada and show up at the border seeking entry into Canada, they will still have to establish their identity and status as a Canadian citizen. They do not, however, need to apply for citizenship and there is indeed no such application; they do not need to apply for proof of citizenship to be a citizen, but they will have to present proper government documentation showing their Canadian citizenship in order to access or exercise the benefits and privileges afforded Canadian citizens.
There really is no substantive difference between citizens who are citizens pursuant to 3(1)(a) or 3(1)(b). It is easier to prove citizenship for 3(1)(a) (birth certificate alone will almost suffice, though guarantors may also be required for some government purposes, like obtaining a passport), but substantively both types of citizens are citizens at birth. (Recognizing that both Section 3(1)(a) and 3(1)(b) are subject to limitations and exceptions as prescribed in other parts of Section 3 and other parts of the Act.)
This is a long post, despite the fact that the essential observation can be stated rather simply: family sponsored PR is NOT an option for you and your child in the situation you describe.
This is, or at least should be so readily apparent, further elaboration or explanation should not be necessary. But it appears, perhaps due to wishful thinking, you do not recognize this and are not persuaded despite the fact that everyone here has said this, one way or another, and most have said it rather emphatically.
There is more than a little repetition below. I could consolidate this better, but I have already spent too much time on this. To a large extent I tend to address some issues in some depth but then later, farther down, I revisit these in greater depth.
I assume your quest is genuine, so I am making this further effort to help you understand that sponsored PR really is not an option. In particular, I assume you are genuinely seeking the best way to approach the situation you are in, trying to find a way for your child to live in Canada without the child losing citizenship in the home country. Most of what I observe here has been drafted over the course of several days, while I waited until the noise in this topic quieted to post a more comprehensive explanation, not merely to confirm what everyone has said (one way or another) but to help you better grasp the situation, at least from the Canadian side of issue . . . thus, my objective is to explain, as best I can (not being a Canadian lawyer), why you should forget the Canadian law aspect.
This post is not intended to engage in an argument about what the law in Canada is or should be, or how it should be applied. For purposes of your situation, there really is nothing to argue about, it is clear-cut, it really is clear-cut, which is to say that family sponsored PR is NOT an option. Again, I realize you are not persuaded of this. But, frankly, pursuing this approach further is a waste of time.
Thus, again, my effort here is to explain, as best I can (which might not be good enough, but I will give it my best shot), and thus this is not at all intended to be polemic, not an argument for this observation. It is an effort to explain it.
A large part of why I have given this much time and effort, to this, is that there are parallels in this scenario which recur relative to many, many issues one sees discussed in forums like this. Often there is confusion about what the rules are, and how they are in fact applied, due to this aspect getting tangled in views about what the law should be or how it should be applied. This subtext recurs again and again. In discussion after discussion, how-it-should-be is confused, or at least conflated, with how-it-is. I try to focus on the latter. And, the approach you have somewhat obstinately pursued here is perhaps as good an example as any to explore, and by doing so illustrate, how off-track things can and will too often get when the focus is on a personal how-it-should-be approach, without adequately grasping and coming to grips with the how-it-is. (For example, see observations below about alternative approaches to legal issues.)
Automatically-or-not a citizen: this is NOT the issue.
This observation, that family sponsored PR is NOT an option for you and your child, is NOT dependent on whether your child's Canadian citizenship is, or is not, as you describe it, "automatic." But, yes, the Federal Court has in fact ruled that "According to paragraph 3(1)(b) of the Act, any person born outside Canada after February 14, 1977, and at the time of the person’s birth one of the person’s parents was a Canadian citizen, is automatically a Canadian citizen by birth.", that is, the citizenship conferred on an individual by Section 3(1)(b) in the Citizenship Act is automatic (see paragraph 3 in decision by Justice Marineau in the Azziz case (this should link)). (In the spirit of fully explaining things, I will address this at some length further below.)
However, it was you, not me, that framed the issue in terms of whether or not citizenship was "automatic." In one of your posts you repeatedly refer to "if [I am right that] that child is automatically citizen." I never said it is correct to say the child is automatically a citizen (even though, again, one Federal Court justice has described it this way). In fact, what I said about this so-called difference, automatic-or-not, is that so far as I can discern there is no such difference in Canadian law . . . meaning no meaningful difference.
To be clear, in whatever way or terms you describe the mechanism or process pursuant to which the child of a naturalized citizen becomes a Canadian citizen as provided by Section 3(1)(b) in the Citizenship Act, or is identified as or recognized to be a Canadian citizen, your child will be recognized as and deemed to be a citizen if and when IRCC assesses the status of your child. An application to sponsor the child for PR status will necessarily trigger such an assessment. First, IRCC will assess your eligibility to sponsor a family member, which is predicated on your status as a naturalized Canadian citizen, and then IRCC will assess the relationship between you, the sponsor, and the child, and upon establishing that you are the child's parent that will establish the child's status as a Canadian citizen. Not a Foreign National. Not eligible to be sponsored for PR.
Sure, it might not happen this way, but that would be due to accident, mistake, or cheating. Actual outcomes are always subject to incidental anomalies. As someone else suggested, sure you could make the application and see how it goes.
But make no mistake, given the situation as is, there is no legal path (barring accident, mistake, or cheating) to sponsor your child for PR.
Big clue: there is NO application for citizenship for an individual who is a Canadian citizen by descent. No such application is available.
There is an application for proof of citizenship available. However, a person is not eligible to be issued proof of citizenship, that is a certificate of citizenship, unless they are a citizen. Only a person who is a citizen can successfully apply for and obtain proof of citizenship.
Your resistance to accept this, what really is clear cut, that family sponsored PR is NOT an option, appears to have made an impression on others here that you are either unreasonably obstinate or more interested in posturing argumentatively. This has led to some harshly negative commentary and even more or less hostility in personal tangents. What I suspect you fail to grasp, about this, is that most of those who have responded really are more interested in helping than arguing. But sure, frustration has led to some unwarranted remarks; but, to be frank, your apparent obstinacy has fueled their frustrations.
That aside, again I assume you are genuinely seeking the best way to approach the situation you are in, trying to find a way for your child to live in Canada without the child losing citizenship in the home country.
Alternative approaches to legal issues; argument-mining versus research-for-learning:
There are multiple ways to read and analyze statutes, regulations, official judicial decisions, official sources, reports and stories about how these sources have been applied, and other resources. How one reads and analyzes such sources depends in part on the purpose. For example, a lawyer trying to piece together a case does research with an eye toward composing an argument leading to those conclusions which will favour the lawyer's cause (the client's cause anyway). My sense, tracker_01, is that your approach is more of this sort. In your situation that is not helpful.
Another way to approach the research is focused on learning what the law is, how it works, and how it is applied, usually in an effort to explain the law as it is or to predict how the law is likely to be applied, or for a judge, how to best apply the law to a case before the court. Thus, for example, the lawyer trying to compose an opinion for a client, or a law clerk trying to help a judge best understand and apply the law to a case, will read and analyze the sources of information with the aim of understanding the law and its application. By the way, lawyers do far more of this than they do argument-mining.
The mistake many make is do the first, essentially argument-mining, before they have thoroughly done the learning research. One really needs to do the homework to figure out and understand, as best one can, what the law is and how it works first. Only then will argument-mining be of any use at all.
That is, argument-mining is bound to go off track, and often way, way off track, unless the learning research has been done first and done well. I have done both professionally (albeit regarding the law of jurisdictions other than Canada). For the last quarter-century I have mostly done the learning approach (in the course of my day job, writing explanations of law, mostly focused on changes in the law, for lawyers), but I was deep in the litigation trenches for more than a decade before that, and did my share of argument-mining then. And before that there was the initial learning research phase, which took years, years beyond earning a Juris Doctorate degree. (Yeah, I am an old man.)
However, I have no professional association or experience with Canadian law, Canadian immigration, or Canadian citizenship. I am no expert on Canadian immigration or citizenship law.
That said, I have diligently applied my education and experience in jurisprudence to certain issues and questions of Canadian law regarding immigration and citizenship. Thus, relative to a few particular immigration and citizenship issues, I have focused more than a little, for about eight years now, on what the Canadian law is, how it works, and how the bureaucratic process works. I have not spent much time or effort considering how to compile arguments to advance alternative positions regarding such issues (albeit, in doing the learning research, I have read and analyzed scores and scores of arguable positions on the issues, especially as these have been set out in official IAD and Federal Court decisions -- many times the court will set out the respective parties' arguments).
In contrast, on this issue at least, you appear focused on extracting what you think are arguable positions to support the proposition that, somehow, your child is eligible for sponsored PR. My sense is you have slid deeply into this unproductive distraction by failing to sufficiently grasp what the law is and how it works, skipping over the practical reality, clinging to argumentative positions (which, frankly, tend to be well off the mark) you believe will support your preferred outcome (they don't).
In this regard, it is important to recognize that the vast majority of law is well settled, and particularly so in regards to the law administered by bureaucracies, including IRCC, and not subject to much if any argument about what the law is or how it is applied. When it comes to litigation, the realm within which there are arguments to be made regarding the application of law in an actual case, what is contested, what is arguable, is usually fact-based, about what the particular facts are and thus how the law or rules should be applied to those particular facts. Thus there is rarely much argument about what the law is itself, except as to how it is to be interpreted and applied to the particular facts of the specific case.
If there has been a previous case with the precisely same facts, the decision in that case will ordinarily suffice to illuminate what the law is and how it is to be applied to those particular facts (unless the decision appears erroneous).
Thus, a big part of your query has been to seek information by or about someone who has indeed been in a very similar situation and attempted to obtain PR status for their child. However, as I previously posted:
As I further observed, an anecdotal experience will only confirm that it is not possible, or as I also said, that perhaps it did happen on this or that occasion despite the fact it should not happen, indicating that in that particular instance it happened due to accident, mistake, or cheating.dpenabill said:
Perhaps I should have qualified that observation, because it is about an anecdotal report by or about someone in a similar situation, not about an official decision. An official decision would illuminate things better, a lot better. To be clear, however, I am sure, very sure, an official decision would verify that sponsored PR is not available in this situation.
In particular, I have no doubt how this would go if the issue made it to the IAD, which would be in an administrative appeal of a denied sponsored PR application, or to the Federal Court. The latter could be a judicial review of an IAD decision affirming the denial of sponsored PR. It could also be, alternatively, in a Mandamus action to compel IRCC to process the sponsored PR application, since there is a significant likelihood IRCC will decline to process the sponsored PR application, return the application rather than deny it, so one avenue for review could be by bringing a Mandamus action to compel IRCC to process the application.
Leading back to the short answer to your query, that in so far as Canadian law is involved, your child (once born) is a Canadian citizen, even if for practical purposes that is not recognized until after some transaction with IRCC has taken place pursuant to which the child's status is determined.
Short answer to your query: If there is any option that will work, it will be pursuant to the laws of Country-X and not Canadian law.
Again (and again and again), sponsored PR status is NOT an option.[
Overall: If you are seriously seeking real options, a way for your child to live in Canada without losing citizenship in Country-X, if there are any such options those options will be pursuant to the laws of Country-X, not Canadian law.
I recognize this is not the answer you are looking for. This is, however, how it is.
Thus, if you are genuinely exploring how to deal with this situation, how you can arrange to have your child live in Canada without losing citizenship in the child's home country, you need the assistance of professionals in that country, in Country-X.
The Canadian aspect is the distraction here. Since I assume your effort is genuine, but I understand only the Canadian aspect, I am making this effort to help you understand the Canadian aspect as well.
While there are numerous flaws in your interpretation and analysis of the relevant Canadian law, the main thing you tend to overlook or fail to grasp is that it does NOT matter whether a child born abroad to a naturalized citizen is "automatically" a Canadian citizen or not. However you characterize the child's status, sponsored PR status is NOT an option. Not an option. The child is not eligible to be sponsored for family class PR.
And again, as I referenced in my previous post, and above, this is not to say this has not happened, or to insist it cannot happen. It might, by accident, by mistake, or by cheating. Indeed, no particularly creative imagination is necessary to conceive potential ways to game the system. None are foolproof. All would be foolish. All involve serious risks. But sure, there are ways in which the system might, possibly, be gamed. Whatever the odds of success, that is not the way to go. Not the way to go.
Conclusion: See a competent lawyer in Country-X.
If the discussion is only about Canadian law and whether the child can somehow be sponsored for PR status, this has been asked and correctly answered: Sponsored PR status is NOT an option. That is the Canadian law aspect.tracker_01 said:
I understand you are still not persuaded. But your recalcitrance, regarding this, appears rooted in a misguided effort to twist a preferred meaning from isolated bits of language, much of which is taken out-of-context, to advance erroneous conclusions. Yes, for example, your conclusions based on information about the Chan situation, and statements in the Rabin case, are wrong, and the Canadian PR status option is a NO-GO.
I explained, in my previous post, why neither the Chan situation nor the Rabin case support or help your cause. While apparently I did not do so well enough to persuade you, it appears you may not have made much an effort to understand the explanation, since you repeat the erroneous proposition that Section 3(1)(b) has not changed since 1977. This is NOT correct. It has changed. It has changed a lot.
And I explained how it has changed in my previous post. Just a sample:tracker_01 said:
My impression is you focus on the particular words in isolation without taking into account their actual meaning, and in this instance, in particular, without considering how the words "subject to the Act" incorporate all other provisions in the Citizenship Act which are relevant to and affect the meaning, scope, and application of Section 3(1)(b) -- and those other provisions have indeed changed extensively in ways that directly and indirectly change what subsection 3(1)(b) means and how it is applied. . . and again, the most obvious example, among many other examples, is the addition of subsection 3(3)(a) in 2009, which dramatically changes, extensively limiting, who acquires citizenship by descent pursuant to subsection 3(1)(b).dpenabill said:
As Justice Boivin explicitly states in the Rabin decision (this should link) (in paragraph 22):
". . . paragraph 3(1)(b) cannot be read in a vacuum."
Statutory interpretation (often referred to as statutory construction by jurists) does not always require a doctorate degree in jurisprudence, but it does demand understanding that the meaning of a particular provision often, perhaps usually, depends on the terms of the body of the statutory enactment (which it is a part of) as a whole. Even when it is not explicitly stated as such.
In particular, many, many official decisions specifically emphasize that the meaning of language in a statutory provision can only be interpreted with due consideration given the entirety of the legislative act. But there is no need to rely on this basic principle of statutory construction in regards to Section 3(1)(b), since the provision itself overtly incorporates the entirety of the Citizenship Act, since it explicitly states its terms are "subject to the Act."
Frankly, this is basic stuff, really basic stuff. And you get it wrong. Even after getting an explanation, you repeat the erroneous proposition Section 3(1)(b) has not changed since 1977 . . . despite the very obvious fact that it has changed, and indeed has changed a lot. (Perhaps ironically, in another post, in which you pose hypotheticals involving "Adam," you reference and acknowledge that the scope and application of Section 3(1)(b) (albeit without citing Section 3(1)(b) in particular) changed in 2009.)
Again, I assume you are genuinely exploring what options are available, and I am thus trying to explain, to illuminate why sponsored PR is not an option, addressing some of your other arguments about Canadian law and why they miss the point. Make no mistake, however, I am trying to explain this. I am not a Canadian lawyer, and my effort to explain may be clumsy, it may fail to persuade. But I am not arguing here, NOT making an argument that sponsored PR is unavailable in this situation. It is clear cut that sponsored PR is, simply, not an option. Not arguable. Not worth arguing about. I am just doing my best to explain this in a way that will help you understand it.
Framing the issue:
Is citizenship by descent automatically acquired or is it a matter of right?
I addressed this above; the following is merely a more in-depth explanation.
You persistently frame the Canadian law issue as depending on whether citizenship by descent is automatically acquired or is it a matter of right?, focusing on this as what matters, what makes the difference. This is not a real issue, at least not a meaningful one, let alone an issue that makes the difference.
Based on framing the issue this way, you argue your child will not be, upon birth, "automatically" a Canadian citizen, but rather have "a right to apply for citizenship." And therefore could be sponsored for PR.
No. That is not how it works.
Aside from the fact that there is NO such application for citizenship available, NONE, none whatsoever, this does not make your child eligible for sponsored PR. Even if you take the position that an application for proof of citizenship constitutes an "application for citizenship," (it doesn't but . . . ), and the child does not have Canadian citizenship (as a matter of fact or of law? not sure what you are asserting in this regard) unless and until such an application for proof is made and granted (that is not how it really works but . . . ), it is still the case that the child will NOT be eligible for sponsored PR status.
In particular, if and when you made a sponsored PR application for the child, one way or the other IRCC will not grant the child PR status, given the naturalized Canadian citizenship of at least one parent, since IRCC will recognize the child's Canadian citizenship, that the child is not a Foreign National, and therefore the child is NOT eligible for sponsored PR. (Well, again, apart from other possibilities due to accident, mistake, or cheating.)
To be clear: My observations do not assume the child is "automatically" a citizen.
The characterization of the process by which the child's Canadian citizenship is recognized, as "automatic" or otherwise, does not matter. It is simply not true that if that process is not "automatic" that the child could be sponsored for PR status.tracker_01 said:
And, again to be clear, I never framed the issue this way. That is, again to be clear, my previous observations were not premised on the proposition that "the child is automatically a citizen." My only reference to anything happening "automatically" was a reference to your characterization of the issue based on the Schneur Zalman Rabin case, when I stated:
In contrast, in direct response to your framing of the issue or question as dependent on whether citizenship is automatic or not, I explicitly said this makes no difference:dpenabill said:
And I brushed off this distinction:tracker_01 said:
Perhaps it would have been helpful, in my previous post, to more carefully address the way you framed the issue, to more explicitly address why the automatic-or-not distinction does not matter. But, frankly, I overlooked how much significance you were placing on the process of obtaining recognition of citizenship as opposed to the substantive acquisition of status itself.dpenabill said:
What matters relative to the individual involved is the substantive law governing who and when citizenship is acquired. Substantively, for the most part those who acquire citizenship by descent acquire it at birth. This was not always how it worked (and there may also be current exceptions . . . there are numerous detailed provisions governing a wide range of particular and peculiar scenarios). Additionally, who acquires citizenship by descent has not always been the same (in particular, changes to the meaning and scope of Section 3(1)(b), thus who is a citizen pursuant to Section 3(1)(b), changed in 2009 and again in 2014).
For your situation, what matters is who has citizenship by descent and when is that citizenship substantively acquired under current law, and under current law, your child, the child of a naturalized Canadian citizen, will acquire Canadian citizenship at birth, and if born abroad that will be citizenship by descent. That is the applicable substantive law. Like it or not, that is what it is.
The process, or procedure, pursuant to which a given person is identified as a citizen, or recognized to be a citizen, and thus afforded the benefits and privileges of citizenship (like the entitlement to remain in Canada, such as what is at issue in the Chan situation), does not qualify or control the substantive legal effect (Canadian citizenship by descent at birth) when at least one parent is a naturalized citizen at the time of the child's birth.
This is so basic, so fundamental, I did not realize the extent to which you were clinging to this (largely artificial) distinction about acquiring citizenship automatically-or-not.
Again, in whatever way you characterize the process for the child to be recognized as a Canadian citizen, under current law, substantively a child born abroad to a naturalized Canadian citizen acquires Canadian citizenship by descent and does so at birth.
That said, the Federal Court has explicitly interpreted Section 3(1)(b) to confer citizenship "automatically."
As I also noted above, Justice Martineau stated, at paragraph 3 in his decision deciding the Azziz case (this should link):
"According to paragraph 3(1)(b) of the Act, any person born outside Canada after February 14, 1977, and at the time of the person’s birth one of the person’s parents was a Canadian citizen, is automatically a Canadian citizen by birth."
According to Justice Martineau's official decision, interpreting paragraph 3(1)(b) of the Act, the child is "automatically" a Canadian citizen by birth.
I do not cite this to argue the point. As I have already outlined, how one describes the process or mechanism by which a child is recognized to have citizenship by descent is not the real issue. Whether one describes it as automatic-or-not does not matter. Substantively, if the child has a parent who is a citizen at the time the child is born (parent must be a first generation or naturalized citizen for a child born after 2009), the child is, as of the birth, a Canadian citizen by descent.
By the way: the Azziz case illustrates just how harsh the law can be. The child, Farid Azziz, was denied a certificate of citizenship, and Justice Martineau upheld this decision. Reason was that the parents, both Canadian citizens, failed to prove that either was the actual parent of this child. Later they made an application to sponsor the child for PR status. Again denied, again because they still failed to prove they were the actual parents. They subsequently made an application on behalf of the child, seeking PR status based on H&C grounds. By the time this last case was heard in the Federal Court, Farid was six years old, and had been living with his Canadian citizen "parents" all his life. Still denied. Thus, these Canadian citizens cannot return to live in Canada unless they are willing to leave the child behind. For the latter case, see http://canlii.ca/t/gk2zd
Gabriel Chan and Rabin Revisited:
Frankly, which I believe I adequately explained in my previous post, and which is consistent with what just about everyone has observed, what you extrapolate from the Gabriel Chan situation and the decision by Justice Boivin in the Rabin decision (this should link), is indeed WRONG. Neither the Chan situation nor the Rabin decision offer much, if any support, for what you prefer, that your child could be eligible for sponsored PR status.tracker_01 said:
You tend to cherry-pick particular phrases, interpret them out-of-context, extrapolate unfounded and sometimes overtly erroneous conclusions, to make the case that Canadian citizenship by descent is a right, but as if it is a right of no import or effect unless there is an application for citizenship. Basically you torture elements in the Chan situation and the Rabin case to support your preferred interpretation of how the law works . . . with rather minimal effort, it appears, to actually understand how the law actually works.
I already addressed some aspects of how your interpretation is wrong, above, regarding your repetition of the erroneous statement that there have been no changes to Section 3(1)(b).
And, it should be a big, readily grasped clue, that there is no way, no application form or process available, for a person to apply for citizenship based on citizenship by descent.
And I am guessing you are confusing mother and father in the Rabin decision (this should link). (It was Rabin's mother who was issued a certificate of citizenship in 2010, and is "deemed to be a citizen from the time she was born.")
Chan in particular:
In any event, most of what you try to extrapolate from statements in the Chan situation goes back to confusing the process, or procedure (making an application for proof of citizenship), pursuant to which a given person is identified as a citizen, or recognized to be a citizen, and thus afforded the benefits and privileges of citizenship (like the entitlement to remain in Canada, such as what is at issue in the Chan situation), confusing that with the substantive law governing who acquires citizenship by descent and when it is acquired.
Assuming it is true, as alleged, that Chan was born in 1987 or 1988 and that at that time his father was a Canadian citizen, the key question in the Chan situation is not whether Chan was a citizen at the time he was detained (given these facts, he was), but whether CBSA's detention of Chan unlawfully interfered with Chan's citizenship rights of mobility. CBSA can detain persons, even Canadian citizens, if there is a legitimate government interest and the detention is a reasonable means of protecting or advancing that government interest. So the main issue is whether CBSA's continued detention was reasonable once CBSA had been presented with evidence of Chan's Canadian citizenship.
If the case goes to trial, there will of course be multiple issues. My impression is that as of the time the Star article was published, the government was not conceding that Chan is a Canadian citizen. This makes sense. The burden of proving his citizenship is on Chan (unless and until he is issued a certificate of citizenship), and as the Azziz case (among a number of others) illustrates, Canada sometimes challenges the evidence of citizenship.
But, if it is indeed proven that Chan's father was a Canadian citizen at the time Chan was born (in 1987 or 1988), that will prove Chan is a citizen. Assuming Chan prevails on that issue, then the issue will be whether CBSA should have recognized Chan's Canadian citizenship, and if so, when CBSA should have recognized this and correspondingly treated Chan as a Canadian citizen. CBSA might take the position that in the absence of Canadian documentation (Canadian birth certificate, Canadian certificate of citizenship, or Canadian passport, or some other secured or enhanced Canadian identification showing Canadian status) in conjunction with nothing in Chan's immigration history showing Chan's Canadian citizenship (GCMS, FOSS, or such), that CBSA properly treated Chan as a non-citizen. And indeed, the latter could be the case, but even if so that would not mean Chan was not a citizen . . . that is, it is entirely possible that it was proper for CBSA to treat Chan as a non-citizen unless and until Chan's citizenship was established and officially documented, even though he was a citizen.
In any event, again, really, the Chan situation does not help your cause.
Note: Sure, at first Canada may approach and treat your child as not having Canadian citizenship. But that does mean the child is eligible to be sponsored for PR . . . as soon as you apply to sponsor the child, your status and relationship to the child will be examined and determined, to determine if you are qualified to sponsor this particular child . . . and (again, barring an anomalous result due to accident, mistake, or cheating) this will show the child is a Canadian citizen, by descent, not a Foreign National, and is not eligible for sponsored PR status.
Consider the Chan situation arising in a different context: Chan making an application for PR, in a Provincial Sponsorship program, perhaps, or FSW seeking Express Entry, and revealing in that application that he had a Canadian tie in that his father was a naturalized or born-in-Canada citizen. The application would be returned to Chan because, on the fact of it he is not a Foreign National, not eligible for PR status, because he is already a Canadian citizen . . . even though Chan did not first apply for proof of citizenship and did not claim citizenship. That is how it would go, again barring accident or mistake.
The Rabin decision in particular:
Again, I am guessing you are confusing mother and father in the Rabin decision (this should link). (Again, it was Rabin's mother who was issued a certificate of citizenship in 2010, and is "deemed to be a citizen from the time she was born.")
I admit my previous attempt to explain why this case does not help your cause was not all that clear, and to some extent missed the important point of the case, and was more about the court's rejection of Rabin's retroactivity argument than about the status of Rabin's mother at the time of Rabin's birth.
In any event, yes, in 2010 Rabin's mother was determined to be a Canadian citizen and she was deemed to be a citizen from the time she was born. Rabin, nonetheless, was determined to not have acquired citizenship by descent, in effect barred by the operation of Section 3(3)(a).
There have actually been various approaches to this situation, since as it is easy to guess, there are actually many people in the world in a situation quite similar to Rabin's:
Parent was not a Canadian citizen at the time of the birth, due to how the pre-1977 law work, and there was no restoration of the parent's citizenship even after 1977 until 2009. Then in 2009 the parent's citizenship is, in effect, restored, deemed to be effective as of the parent's birth. But for those who were not themselves born in Canada, as of 2009 their children born abroad do not acquire citizenship by descent.
Take Adam and Ian Jabour for example. Their father was deemed a Canadian citizen as a result of the changes to the law in 2009. His citizenship was deemed retroactive to his date of birth. Adam and Ian, however, have been denied certificates of citizenship. See http://canlii.ca/t/fpvf2
Somewhat similarly Barbara and Helen Kinsel. Their father, William Kinsel, likewise became a Canadian citizen by virtue of changes to the law in 2009, deemed retroactive to his birth, but nonetheless his daughters Barbara and Helen were denied certificates of citizenship and that decision was upheld by the Federal Court. See http://canlii.ca/t/fvj5x
The Federal Court decision in the Kinsel case was further heard and decided by the Federal Court of Appeal. That court also upheld the denial of citizenship certificates to Barbara and Helen Kinsel.
In these (and other cases), you might readily extract isolated statements and phrases which might appear to support propositions favouring your interpretation of the law. To seize on such language would be a mistake.
None of these cases depended on concluding the parent was not a citizen at the time of the birth. They actually state the contrary, that given the 2009 changes the parent is deemed to have been a Canadian citizen as of the parent's birth (thus before the children were born). So, why then did that result in the children of these parents not being deemed a citizen pursuant to Section 3(1)(b)?
These cases say these children actually did become entitled to citizenship except for the operation of Section 3(3)(a), which simultaneously foreclosed their entitlement to citizenship.
To my view, the various ways in which the courts have worked their way to largely the same outcome, is not the important part. The outcomes, regardless of the reasoning applied, were the same: in so far as the operation of the changes in 2009, those who are citizens by virtue of those changes are either citizens as of the date of their birth or as of the date citizenship was previously lost. For your purposes, the important part is that the citizenship is as of the date of birth.
And, thus, the part which is important for you to understand, is that for those born after 2009, who are within the scope of Section 3(1)(b) (as affected by changes in 2009 and since), there is no doubt: their citizenship by descent is acquired at birth.
FINALLY
Finally: if the difference you attempt to make, that is, that the child's citizenship is a matter of right but the child is not "automatically" a citizen, meant the child had no citizenship until an application for citizenship is made (despite there being no such application available), consider how and why it could be different for children who are citizens pursuant to section 3(1)(a):
"Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977"
Such children are citizens (with some exceptions it should be noted) with no need to apply for anything. They will still need to prove their citizenship if they apply for a Canadian passport. If they somehow have left Canada and show up at the border seeking entry into Canada, they will still have to establish their identity and status as a Canadian citizen. They do not, however, need to apply for citizenship and there is indeed no such application; they do not need to apply for proof of citizenship to be a citizen, but they will have to present proper government documentation showing their Canadian citizenship in order to access or exercise the benefits and privileges afforded Canadian citizens.
There really is no substantive difference between citizens who are citizens pursuant to 3(1)(a) or 3(1)(b). It is easier to prove citizenship for 3(1)(a) (birth certificate alone will almost suffice, though guarantors may also be required for some government purposes, like obtaining a passport), but substantively both types of citizens are citizens at birth. (Recognizing that both Section 3(1)(a) and 3(1)(b) are subject to limitations and exceptions as prescribed in other parts of Section 3 and other parts of the Act.)
I think the issue over whether or not the child's citizenship was "automatic" or not was that if it wasn't, and the hypothetical child only had a "right to citizenship," the child or child's parents could chose not to exercise such right and thus the child would be treated as a foreigner under Canadian law and could be sponsored for PR. That is obviously not the way it works in this situation. Although it may be the case in some other countries that children of citizens born abroad have an affirmative right to citizenship that lies dormant until it is exercised in the form of a formal registration (as opposed to naturalization) that is not the case in Canadian law.
The simplest solution to me would be to tell country X that he is born with Canadian citizenship, get the certificate and move to Canada. If the need arises later to move to country X again, then see what kind of visa you can get for him. At age 18, he can make his own decision whether he wants to get country X citizenship and renounce the Canadian one.
All the other options involve some type of misrepresentation. You want to get country X citizenship for him too by claiming to them that he has no other or you want to try to convince Canada to give him PR based on that he is not a citizen when he is.
All the other options involve some type of misrepresentation. You want to get country X citizenship for him too by claiming to them that he has no other or you want to try to convince Canada to give him PR based on that he is not a citizen when he is.
This is in response to dpenabill:
1. First of all, I would like to thank you very much for detailed explanation and for your time! I sincerely appreciate it.
2. Your assumption is right, my quest is genuine. Nobody should doubt this.
3. Your latest post has convinced me that there is no way to bring child as PR (except for error or mistake by CIC).
4. It is now clear to me that whether citizenship is automatic or not is not an issue. The main point is that even if child is not automatically citizen (although I do acknowledge that judge stated it is automatic), child will not be allowed to apply for permanent residency, because he is not a foreign national.
5. I had contacted my MP's office and asked them to inquire this with CIC. The response from CIC was as follows: Your future child will not be automatically citizen, but will have right. However, it is very unlikely that child with right to citizenship will be given PR status. Should you apply to sponsor your child, then most likely the application will be returned and you will be asked to apply for proof of citizenship.
6. Essentially CIC confirms, almost word for word, what dpenabill has stated. Also, few other members in this board have stated this previously without giving the reasons.
7. Therefore, I am ready to move on and see what I can do from Country X perspective. The Canadian Law aspect of things is now clear to me.
Why did I specifically wanted to concentrate on Canadian Law aspect of my problem?
I knew that if I keep the topic broad, then people will veer off in all kinds of directions. Therefore, I wanted to narrow down the topic as much as possible. I was thinking that if child is not a citizen, and just has right to citizenship, then he can be sponsored. Hence, my topic was to establish whether he is automatically citizen or not. Since nobody in this forum can help me with other aspects (law in Country X, etc.) I insisted that we concentrate on Canadian Law aspect only. However, now I realize that this even if he is not automatically citizen, child is still not qualified for permanent residency. I thank you dpenabill for clarifying this.
[size=10pt]My research prior to creating this thread:[/size]
I was debating whether to post the following section or not. However, decided to post anyways out of respect to dpenabill. I just want to show that I did my best to understand the intent of the law and how the law works prior to posting here. I'm going to bring issue of adoption, because it is relevant. I would like to admit right away that my analysis has number of holes; therefore, this is not an argument. I'm only trying to show my thought process. Also, I do openly admit that I'm not a lawyer, and sometimes I may inadvertently use statements out of content, for which I apologize.
My understanding is that overseas adoption is very very complex and lengthy process. I did not study this process in detail. However, to the best of my knowledge, this process can be simplified in following terms:
Step 1: Complicated overseas processing. This process is very lengthy. At the end of this process, child severe ties with natural parents and Canadian adopter legally becomes parent of this child. Hence, the Canadian parent becomes the legal parent of overseas adopted child.
Step 2: Canadian adopter applies to bring child to Canada. They have 2 options: a) Apply for citizenship, b)apply for Permanent Residence
Step 3: Child becomes to Canada either as a Citizen, or as a permanent resident, depending on what application route was chosen.
Ways to become Canadian citizen:
Citizenship act allows 3 avenues of becoming a Canadian citizen: jus soli, jus sanguinis, and naturalization
In case adopter chooses to apply for citizenship for his child, my understanding is that the citizenship is given based on jus sanguinis principle, because the other 2 avenues are not applicable (i.e. child is born overseas which makes jus soli not applicable. Also, child did not become permanent resident, therefore naturalization avenue is not applicable).
Bill C-14:
I have studied the parliamentary committee hearings on Bill C-14, where it was stated by number of key people that the intent of C-14 was to reduce the difference between "natural child" born overseas to Canadian parent, and "adopted" child by Canadian parent. Here is the statement by CIC on June 19, 2006 hearing on C-14.
Mark Davidson (Director, Citizenship (Registrar), Department of Citizenship and Immigration): We've looked at the issue of how far we should go in reducing the distinction between natural-born children and adopted children and whether we can reduce it to this extent. The feeling after looking at court cases, particularly a case a number of years ago that started with the human rights tribunal and eventually led to the Federal Court of Appeal, was that we had to reduce as much as possible distinctions between natural-born and adopted children, and that would include reducing or eliminating the prohibitions under citizenship.
As you can see, the intent of the law was to reduce distinction as much as possible between natural born and adopted children.
What did my research conclude?
1. The clause in citizenship act where it talks about children born abroad is paragraph 3(1)(b) of the Act. However, this paragraph is placed under heading PART I- THE RIGHT TO CITIZENSHIP
2. Hence, I made assumption that child has the right to citizenship only.
3. Since both adopted child and natural born child can derive their citizenship via jus sanguinis principle only (this explained above). It made sense to me that both children be given same opportunity: a) Apply for citizenship directly or b) Apply for permanent residence.
4. Also, CIC has clearly stated that their intention is to reduce the difference between overseas adopted children and overseas natural born children.
5. Otherwise, it seems that overseas adopted child can come to Canada as PR and hence preserve his dual citizenship, while natural born child to Canadian parent cannot be brought in as PR. It appears that they are not equal. Actually, natural born child becomes worse off because he has less options available to him.
Again, I would like to stress that this is not an argument, and I do openly admit that this analysis has number of holes. For instance, CIC never stated that both adopted child and natural born child are treated exactly same. All the CIC said was they are trying to reduce the distinction as much as possible because that what the previous court cases indicated they should do. Also, I realize that there are many other holes in this analysis which I'm not going to list. Only reason I wrote my research summary was out of respect to dpenabill and to show that I actually did spend considerable amount of time prior to posting here. Also, hopefully this demonstrated that my quest is genuine.
Thanks.
1. First of all, I would like to thank you very much for detailed explanation and for your time! I sincerely appreciate it.
2. Your assumption is right, my quest is genuine. Nobody should doubt this.
3. Your latest post has convinced me that there is no way to bring child as PR (except for error or mistake by CIC).
4. It is now clear to me that whether citizenship is automatic or not is not an issue. The main point is that even if child is not automatically citizen (although I do acknowledge that judge stated it is automatic), child will not be allowed to apply for permanent residency, because he is not a foreign national.
5. I had contacted my MP's office and asked them to inquire this with CIC. The response from CIC was as follows: Your future child will not be automatically citizen, but will have right. However, it is very unlikely that child with right to citizenship will be given PR status. Should you apply to sponsor your child, then most likely the application will be returned and you will be asked to apply for proof of citizenship.
6. Essentially CIC confirms, almost word for word, what dpenabill has stated. Also, few other members in this board have stated this previously without giving the reasons.
7. Therefore, I am ready to move on and see what I can do from Country X perspective. The Canadian Law aspect of things is now clear to me.
Why did I specifically wanted to concentrate on Canadian Law aspect of my problem?
I knew that if I keep the topic broad, then people will veer off in all kinds of directions. Therefore, I wanted to narrow down the topic as much as possible. I was thinking that if child is not a citizen, and just has right to citizenship, then he can be sponsored. Hence, my topic was to establish whether he is automatically citizen or not. Since nobody in this forum can help me with other aspects (law in Country X, etc.) I insisted that we concentrate on Canadian Law aspect only. However, now I realize that this even if he is not automatically citizen, child is still not qualified for permanent residency. I thank you dpenabill for clarifying this.
[size=10pt]My research prior to creating this thread:[/size]
I was debating whether to post the following section or not. However, decided to post anyways out of respect to dpenabill. I just want to show that I did my best to understand the intent of the law and how the law works prior to posting here. I'm going to bring issue of adoption, because it is relevant. I would like to admit right away that my analysis has number of holes; therefore, this is not an argument. I'm only trying to show my thought process. Also, I do openly admit that I'm not a lawyer, and sometimes I may inadvertently use statements out of content, for which I apologize.
My understanding is that overseas adoption is very very complex and lengthy process. I did not study this process in detail. However, to the best of my knowledge, this process can be simplified in following terms:
Step 1: Complicated overseas processing. This process is very lengthy. At the end of this process, child severe ties with natural parents and Canadian adopter legally becomes parent of this child. Hence, the Canadian parent becomes the legal parent of overseas adopted child.
Step 2: Canadian adopter applies to bring child to Canada. They have 2 options: a) Apply for citizenship, b)apply for Permanent Residence
Step 3: Child becomes to Canada either as a Citizen, or as a permanent resident, depending on what application route was chosen.
Ways to become Canadian citizen:
Citizenship act allows 3 avenues of becoming a Canadian citizen: jus soli, jus sanguinis, and naturalization
In case adopter chooses to apply for citizenship for his child, my understanding is that the citizenship is given based on jus sanguinis principle, because the other 2 avenues are not applicable (i.e. child is born overseas which makes jus soli not applicable. Also, child did not become permanent resident, therefore naturalization avenue is not applicable).
Bill C-14:
I have studied the parliamentary committee hearings on Bill C-14, where it was stated by number of key people that the intent of C-14 was to reduce the difference between "natural child" born overseas to Canadian parent, and "adopted" child by Canadian parent. Here is the statement by CIC on June 19, 2006 hearing on C-14.
Mark Davidson (Director, Citizenship (Registrar), Department of Citizenship and Immigration): We've looked at the issue of how far we should go in reducing the distinction between natural-born children and adopted children and whether we can reduce it to this extent. The feeling after looking at court cases, particularly a case a number of years ago that started with the human rights tribunal and eventually led to the Federal Court of Appeal, was that we had to reduce as much as possible distinctions between natural-born and adopted children, and that would include reducing or eliminating the prohibitions under citizenship.
As you can see, the intent of the law was to reduce distinction as much as possible between natural born and adopted children.
What did my research conclude?
1. The clause in citizenship act where it talks about children born abroad is paragraph 3(1)(b) of the Act. However, this paragraph is placed under heading PART I- THE RIGHT TO CITIZENSHIP
2. Hence, I made assumption that child has the right to citizenship only.
3. Since both adopted child and natural born child can derive their citizenship via jus sanguinis principle only (this explained above). It made sense to me that both children be given same opportunity: a) Apply for citizenship directly or b) Apply for permanent residence.
4. Also, CIC has clearly stated that their intention is to reduce the difference between overseas adopted children and overseas natural born children.
5. Otherwise, it seems that overseas adopted child can come to Canada as PR and hence preserve his dual citizenship, while natural born child to Canadian parent cannot be brought in as PR. It appears that they are not equal. Actually, natural born child becomes worse off because he has less options available to him.
Again, I would like to stress that this is not an argument, and I do openly admit that this analysis has number of holes. For instance, CIC never stated that both adopted child and natural born child are treated exactly same. All the CIC said was they are trying to reduce the distinction as much as possible because that what the previous court cases indicated they should do. Also, I realize that there are many other holes in this analysis which I'm not going to list. Only reason I wrote my research summary was out of respect to dpenabill and to show that I actually did spend considerable amount of time prior to posting here. Also, hopefully this demonstrated that my quest is genuine.
Thanks.