Canadian nationality law
Encyclopedia
Canadian citizenship is typically obtained by birth in Canada
, birth abroad when at least one parent is a Canadian citizen and was born or naturalized in Canada, or by adoption abroad by at least one Canadian citizen. It can also be granted to a permanent resident
who lives in Canada for three out of four years and meets specific requirements. Details and exceptions to these general rules are explained below.
The Canadian Citizenship Act 1946
took effect on 1 January 1947. Prior to that date, the status of Canadians was only that of British subject
. Canada's nationality law closely mirrored that of the United Kingdom
. As Canadian independence was obtained incrementally over the course of many years since the formation of the Canadian Confederation
in 1867, the Second World War
in particular gave rise to a desire amongst Canadians to have their country recognized as a fully-fledged sovereign state with a distinct citizenship. Prior to the conferring of legal status on Canadian citizenship, Canada's naturalization
laws consisted of a hodgepodge of confusing Acts, which may have provided additional impetus for the editing of Canadian citizenship.
On 1 January 1947, Canadian citizenship was conferred on most British subjects connected with Canada. Subsequently, on 1 April 1949, Canadian nationality law was extended to Newfoundland
upon that country's admission to Confederation.
From 1 January 1947 until the early 1980s, Canadian citizens remained British subjects. They had a dual status. Nowadays the dual status is that of Canadian citizen and Citizen of the Commonwealth.
Canadian nationality law was substantially revised on 15 February 1977 when the new Citizenship Act came into force. Notably, from that date Canada fully accepts multiple citizenship
. However, those who lost Canadian citizenship before that date did not automatically have it restored until 17 April 2009 when Bill C-37 became law.
Children born to residents holding temporary work or study permits are not citizens at birth. Most persons born in Canada before 1947 acquired Canadian citizenship on 1 January 1947 if still living at that date.
Section 3(2) of the Current Act states that Canadian citizenship is not granted to a child born in Canada if, at the time of his/her birth, neither of his/her parents was a Canadian citizen or Canadian permanent resident and either parent was a diplomatic or consular officer or other representative or employee of a foreign government in Canada or an employee of such a person.
However, should the immigration status of the parents of such persons change to permanent resident, they may be granted citizenship immediately, or when the parents acquire citizenship through naturalization, at the discretion of Citizenship and Immigration Canada
.
Minister for Citizenship, Immigration and Multiculturalism said the following in the House of Commons of Canada on June 10, 2010: "...That’s why we must protect the values of Canadian citizenship and must take steps against those who would cheapen it...." "We will strengthen the new limitation on the ability to acquire citizenship for the second generation born abroad." http://www.cic.gc.ca/english/department/media/speeches/2010/2010-06-10.asp
The new rules would not confer a Canadian citizenship on children born outside of Canada to parents who were themselves Canadian citizens by birth but not born in Canada. Thus the new rule makes a distinction between Canadian citizens born in Canada and immigrants granted citizenship on the one hand and citizens by birth who were born outside Canada on the other who have attenuated rights to pass on citizenship to their children.
In a scenario the new rules would apply like this: A child is born in Brazil
in 2005 (before the new rules came in effect) to a Canadian citizen father, who himself is a born abroad citizen by descent, and a Brazilian mother who is only a Permanent Resident of Canada. Child automatically becomes a Canadian citizen through a simple application process. Another child born after April 17, 2009 in the same scenario would not be considered a Canadian citizen. The child is considered born past "first generation limitation" and the parents (the father) would have to sponsor the child to Canada to become a Permanent Resident, (a lengthy process which may take from one to four years ) even though the child has four other siblings who are Canadian citizens by the same parents. Once the Permanent Residency is granted, a Canadian parent can apply for Canadian citizenship on behalf of the child, without the required three-year-residency rule, however.http://www.cic.gc.ca/english/citizenship/rules.asp#become
Every person born outside Canada but within one generation of the native-born or naturalized citizen parent is automatically a Canadian citizen by descent (retroactive to date of birth or date citizenship was lost). The second generation born abroad, however, are not citizens of Canada at birth. Such an individual might even be stateless
if he or she has no claim to any other citizenship. (This situation actually occurred to a child born in China to a father who is a Canadian citizen born outside Canada.) The second generation born abroad can only gain Canadian citizenship by emigrating to Canada; this can be done by their Canadian citizen parents sponsoring them as dependent children, a category with fewer requirements, which would also take less time than most other immigration application categories.
Under new rules introduced in 2009, foreign nationals being adopted by Canadian citizens can now acquire Canadian citizenship immediately upon completion of the adoption, without first entering Canada as a permanent resident under the previous rules.
may apply for Canadian citizenship by naturalization
(grant) subject to the following conditions.
The person:
The residence and other requirements do not normally apply to those aged under 18.
Bill C-14 consists of only four clauses. Clause 1 amends section 3 of the Citizenship Act so that adopted children who attain citizenship without first obtaining permanent resident status are Canadian citizens. Clause 2 applies to adopted children who are minors and also to those who are at least 18 years of age; it amends section 5 of the Citizenship Act and provides that, subject to certain conditions, the Minister shall grant citizenship to children who are adopted abroad after 14 February 1977. Clause 2 also has a special provision for adoptions that are under the jurisdiction of Quebec.
Many Canadians lost their citizenship prior to 15 February 1977 through:
See History of Canadian citizenship
A Canadian citizen who holds another nationality may in some cases renounce their Canadian status.
, who found out recently, on applying for passports, that for various reasons they may not be Canadian citizens as they thought. Don Chapman, a witness before the committee, estimated that 700,000 Canadians have either lost their citizenship or are at risk of having it stripped. However, Citizenship and Immigration Minister Diane Finley
said her office has had just 881 calls on the subject. On 19 February 2007, she signed documents granting citizenship to 33 such individuals. Some of the reasons citizenship may have been lost is if the individual was born out of wedlock before 1977, or to a father who took a second citizenship. Another reason is if the child was born outside Canada, and failed to confirm their citizenship before turning 24 or 28. Some of the people affected reside in towns near the southern border, and hence were born in American hospitals. Others, particularly Mennonites, were born to Canadian parents in Mexico or Paraguay. An investigation by the CBC, based on Canadian census
data, concluded that the problem could affect an estimated 10,000 to 20,000 individuals currently residing in Canada.
On 29 May 2007, Canadian Minister of Citizenship and Immigration Diane Finley
announced her proposal to amend the Citizenship Act. Under the proposal, anyone naturalized in Canada since 1947 would have citizenship even if they lost it under the 1947 Act. Also, anyone born since 1947 outside the country to a Canadian mother or father, in or out of wedlock, would have citizenship if they are the first generation born abroad. Appearing before the Standing Committee on Citizenship and Immigration, Finley asserted that as of 24 May 2007, there were only 285 cases of individuals in Canada whose citizenship status needs to be resolved. Under the proposed legislation, anyone born before 1947 to a Canadian citizen abroad would be dealt with on a case-by-case basis; such individuals would have to apply for a ministerial permit.
Bill C-37, which received Royal Assent on 17 April 2009, amended the Citizenship Act to give Canadian citizenship to those who lost or never had it, due to outdated provisions in existing and former legislation. The law came into effect on 17 April 2009.
Former Canadians who lost British subject status before 1947 have no specific rights to Canadian citizenship, except in the case of women who lost British subject status on marriage to a foreign man.
Brian Mulroney
agreed to a redress package for Japanese-Canadians deported from Canada between 1941 and 1946 (about 4,000 in total) and their descendants.
The package authorized a special grant of Canadian citizenship for any such person. All descendants of deported persons were also eligible for the grant of citizenship provided that they were living on 22 September 1988, regardless of whether the person actually deported from Canada was still alive.
Over the years 2 principal schools of thought with respect to residence have emerged from the Federal Court.
Early on, in 1978, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re), opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant’s linkages suggest that Canada is his or her home, regardless of any absences from the country.
In Koo (Re), Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. Resolving such a question involves consideration of several factors:
The general principle is that the quality of residence in Canada must be more substantial than elsewhere.
In contrast, a line of jurisprudence flowing from the decision in Pourghasemi (Re) emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time.
In the words of Justice Francis Muldoon
:
The co-existence of such disparate, yet equally valid approaches has led some judges to comment that the citizenship "law is in a sorry state," that "there cannot be two correct interpretations of a statute," that "it does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court," that there's a "scandalous incertitude in the law,"
and that "there is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery."
In 2010 it seemed that a relative judicial consensus with respect to decision-making in residence cases might emerge. In several Federal Court decisions it was held that the Citizenship Judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).
However, most recently, this compromise formula was rejected by the Federal Court judges, who continued to plead for legislative intervention as the means to settle the residency requirement debacle.
A few of the other major decisions are:
Glynos v. Canada (1992). The federal court ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.
Benner v. Canada (1997). The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath).
Canada (Attorney General) v. McKenna (C.A.) (1999). As a result of the existing Citizenship Act, adopted children are treated differently from biological children born abroad to Canadian citizens. The Federal Court of Appeal has indicated that distinctions in the law based on "adoptive parentage" violate the equality rights provisions in section 15 of the Canadian Charter of Rights and Freedoms. Under the existing law, moreover, children adopted by Canadian parents who are living abroad and who wish to continue doing so cannot become permanent residents and, therefore, cannot become Canadian citizens.
Taylor v. Minister of Citizenship and Immigration (2006). The federal court ruled that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad. The ruling was far-reaching in terms of striking down a number of the loss provisions of the 1947 Citizenship Act based on the retrospective application of the Charter of Rights and Freedoms. The Canadian Government launched an appeal in 2006, and on 2 November 2007 the Federal Court of Appeal ruled in favour of the government, ruling that Mr. Taylor is not a Canadian citizen based on the 1947 Citizenship Act. However, on 24 January 2008, The Honourable Diane Finley, Minister of Citizenship and Immigration, gave him a special grant of citizenship under a section of the Citizenship Act which permits such action in special circumstances.
Citizens are responsible for:
Commonwealth citizenship also imparts rights within other Commonwealth realm
s although many of these have now been repealed.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, birth abroad when at least one parent is a Canadian citizen and was born or naturalized in Canada, or by adoption abroad by at least one Canadian citizen. It can also be granted to a permanent resident
Permanent resident (Canada)
A Permanent Resident in Canada is someone who is not a Canadian citizen but who has been granted permission to live and work in Canada without any time limit on his or her stay...
who lives in Canada for three out of four years and meets specific requirements. Details and exceptions to these general rules are explained below.
History of Canadian Citizenship
Canadian Citizenship Act 1946
The Canadian Citizenship Act is an Act of the Parliament of Canada, which was enacted June 27, 1946, and came into effect on January 1, 1947, recognizing the definition of a Canadian, including reference to them being British subjects....
took effect on 1 January 1947. Prior to that date, the status of Canadians was only that of British subject
British subject
In British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
. Canada's nationality law closely mirrored that of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. As Canadian independence was obtained incrementally over the course of many years since the formation of the Canadian Confederation
Canadian Confederation
Canadian Confederation was the process by which the federal Dominion of Canada was formed on July 1, 1867. On that day, three British colonies were formed into four Canadian provinces...
in 1867, the Second World War
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
in particular gave rise to a desire amongst Canadians to have their country recognized as a fully-fledged sovereign state with a distinct citizenship. Prior to the conferring of legal status on Canadian citizenship, Canada's naturalization
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
laws consisted of a hodgepodge of confusing Acts, which may have provided additional impetus for the editing of Canadian citizenship.
On 1 January 1947, Canadian citizenship was conferred on most British subjects connected with Canada. Subsequently, on 1 April 1949, Canadian nationality law was extended to Newfoundland
Dominion of Newfoundland
The Dominion of Newfoundland was a British Dominion from 1907 to 1949 . The Dominion of Newfoundland was situated in northeastern North America along the Atlantic coast and comprised the island of Newfoundland and Labrador on the continental mainland...
upon that country's admission to Confederation.
From 1 January 1947 until the early 1980s, Canadian citizens remained British subjects. They had a dual status. Nowadays the dual status is that of Canadian citizen and Citizen of the Commonwealth.
Canadian nationality law was substantially revised on 15 February 1977 when the new Citizenship Act came into force. Notably, from that date Canada fully accepts multiple citizenship
Multiple citizenship
Multiple citizenship is a status in which a person is concurrently regarded as a citizen under the laws of more than one state. Multiple citizenships exist because different countries use different, and not necessarily mutually exclusive, citizenship requirements...
. However, those who lost Canadian citizenship before that date did not automatically have it restored until 17 April 2009 when Bill C-37 became law.
Birth in Canada
In general, everyone born in Canada from 1947 or later acquires Canadian citizenship at birth. The only exceptions concern children born to diplomats, where additional requirements apply.Children born to residents holding temporary work or study permits are not citizens at birth. Most persons born in Canada before 1947 acquired Canadian citizenship on 1 January 1947 if still living at that date.
Section 3(2) of the Current Act states that Canadian citizenship is not granted to a child born in Canada if, at the time of his/her birth, neither of his/her parents was a Canadian citizen or Canadian permanent resident and either parent was a diplomatic or consular officer or other representative or employee of a foreign government in Canada or an employee of such a person.
However, should the immigration status of the parents of such persons change to permanent resident, they may be granted citizenship immediately, or when the parents acquire citizenship through naturalization, at the discretion of Citizenship and Immigration Canada
Citizenship and Immigration Canada
Citizenship and Immigration Canada is the department of the government of Canada with responsibility for issues dealing with immigration and citizenship...
.
Canadian citizenship by descent
Every person born outside Canada after 15 February 1977, who has a Canadian parent at the time of birth, is automatically a Canadian citizen by descent. Every such person whose Canadian parent or parents were also not born in Canada and obtained their citizenship at birth by descent (i.e. second generation born abroad) must have successfully applied to maintain their Canadian citizenship before their 28th birthday, that is, if their 28th birthday took place before 17 April 2009. People falling into that category who did not take steps to maintain their citizenship lost their citizenship on that birthday. With Bill C-37 coming into effect on 17 April 2009, there is no longer a requirement nor any allowance to apply to maintain citizenship.2009 Amendments to Citizenship Act
Bill C-37 came into effect on 17 April 2009, which changed the rules for Canadian citizenship. Individuals born outside of Canada can now become Canadian citizens by descent if one of their parents is a citizen of Canada either by having been born in Canada or by naturalization. The new law limits citizenship by descent to one generation born outside Canada. One of the changes instituted by the Government of Canada, is the "first generation limitation", considered a punitive measure by some against naturalized citizens who reside abroad for lengthy periods of time. Jason KenneyJason Kenney
Jason T. Kenney, PC, MP is Canada's current Minister of Citizenship, Immigration and Multiculturalism. He has represented the riding of Calgary Southeast in the Canadian House of Commons since 1997....
Minister for Citizenship, Immigration and Multiculturalism said the following in the House of Commons of Canada on June 10, 2010: "...That’s why we must protect the values of Canadian citizenship and must take steps against those who would cheapen it...." "We will strengthen the new limitation on the ability to acquire citizenship for the second generation born abroad." http://www.cic.gc.ca/english/department/media/speeches/2010/2010-06-10.asp
The new rules would not confer a Canadian citizenship on children born outside of Canada to parents who were themselves Canadian citizens by birth but not born in Canada. Thus the new rule makes a distinction between Canadian citizens born in Canada and immigrants granted citizenship on the one hand and citizens by birth who were born outside Canada on the other who have attenuated rights to pass on citizenship to their children.
In a scenario the new rules would apply like this: A child is born in Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
in 2005 (before the new rules came in effect) to a Canadian citizen father, who himself is a born abroad citizen by descent, and a Brazilian mother who is only a Permanent Resident of Canada. Child automatically becomes a Canadian citizen through a simple application process. Another child born after April 17, 2009 in the same scenario would not be considered a Canadian citizen. The child is considered born past "first generation limitation" and the parents (the father) would have to sponsor the child to Canada to become a Permanent Resident, (a lengthy process which may take from one to four years ) even though the child has four other siblings who are Canadian citizens by the same parents. Once the Permanent Residency is granted, a Canadian parent can apply for Canadian citizenship on behalf of the child, without the required three-year-residency rule, however.http://www.cic.gc.ca/english/citizenship/rules.asp#become
Every person born outside Canada but within one generation of the native-born or naturalized citizen parent is automatically a Canadian citizen by descent (retroactive to date of birth or date citizenship was lost). The second generation born abroad, however, are not citizens of Canada at birth. Such an individual might even be stateless
Statelessness
Statelessness is a legal concept describing the lack of any nationality. It is the absence of a recognized link between an individual and any state....
if he or she has no claim to any other citizenship. (This situation actually occurred to a child born in China to a father who is a Canadian citizen born outside Canada.) The second generation born abroad can only gain Canadian citizenship by emigrating to Canada; this can be done by their Canadian citizen parents sponsoring them as dependent children, a category with fewer requirements, which would also take less time than most other immigration application categories.
Under new rules introduced in 2009, foreign nationals being adopted by Canadian citizens can now acquire Canadian citizenship immediately upon completion of the adoption, without first entering Canada as a permanent resident under the previous rules.
Naturalization as a Canadian citizen
A person who is a permanent residentPermanent resident (Canada)
A Permanent Resident in Canada is someone who is not a Canadian citizen but who has been granted permission to live and work in Canada without any time limit on his or her stay...
may apply for Canadian citizenship by naturalization
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
(grant) subject to the following conditions.
The person:
- is aged 18 years or over
- is a permanent residentPermanent resident (Canada)A Permanent Resident in Canada is someone who is not a Canadian citizen but who has been granted permission to live and work in Canada without any time limit on his or her stay...
- has lived in Canada for a total of three years out of the four years preceding the application for citizenship, including two years as a permanent resident
- has knowledge of Canada (as demonstrated by taking a testCanadian Citizenship TestRun by Citizenship and Immigration Canada, the Canadian Citizenship Test is a test applicants for Canadian citizenship that are aged between 18 and 54 who also meet the basic requirements for citizenship are required to take...
, which is required as part of the application process, but only if the applicant is between 18 and 54 years of age) - is not a subject to any criminal prohibitions
- is not a war criminalWar crimeWar crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
- is able to speak English or French well enough to communicate with people
Children aged under 18
The naturalization requirements for children under 18 are different from those for adults.- the child should be a permanent residentPermanent resident (Canada)A Permanent Resident in Canada is someone who is not a Canadian citizen but who has been granted permission to live and work in Canada without any time limit on his or her stay...
- a parent of the child should be a Canadian citizen or in the process of applying for Canadian citizenship
The residence and other requirements do not normally apply to those aged under 18.
Citizenship ceremonies
All applicants for Canadian citizenship aged 14 or over must attend a citizenship ceremony as the final stage of their application.Canadian citizenship by adoption
In May 2006 the Canadian government introduced draft legislation, Bill C-14: An Act to Amend the Citizenship Act (Adoption) which is designed to allow adopted children the right to apply for immediate citizenship. This bill received Royal Assent on 22 June 2007.Bill C-14 consists of only four clauses. Clause 1 amends section 3 of the Citizenship Act so that adopted children who attain citizenship without first obtaining permanent resident status are Canadian citizens. Clause 2 applies to adopted children who are minors and also to those who are at least 18 years of age; it amends section 5 of the Citizenship Act and provides that, subject to certain conditions, the Minister shall grant citizenship to children who are adopted abroad after 14 February 1977. Clause 2 also has a special provision for adoptions that are under the jurisdiction of Quebec.
Loss of Canadian citizenship
Under current law there is no provision for involuntary loss of Canadian citizenship except:- naturalized Canadians can have their citizenship revoked if convicted of fraud in relation to their citizenship application, or their original admission to Canada as an immigrant
Many Canadians lost their citizenship prior to 15 February 1977 through:
- naturalization in another country
- long residence overseas (prior to 1967)
- if a child, based on a parent's loss of Canadian citizenship
See History of Canadian citizenship
A Canadian citizen who holds another nationality may in some cases renounce their Canadian status.
Lost Canadians
In February 2007, the House of Commons Standing Committee on Citizenship and Immigration held hearings on so-called Lost CanadiansLost Canadians
Lost Canadians are those individuals who believe themselves to be Canadian citizens, but who lost their citizenship through the vagaries of either the current citizenship law or that in force prior to 1977....
, who found out recently, on applying for passports, that for various reasons they may not be Canadian citizens as they thought. Don Chapman, a witness before the committee, estimated that 700,000 Canadians have either lost their citizenship or are at risk of having it stripped. However, Citizenship and Immigration Minister Diane Finley
Diane Finley
Diane Finley, PC, MP is a Canadian politician. She serves as Minister of Human Resources and Skills Development in the cabinet of Prime Minister Stephen Harper. Of the 12 MPs in the Priorities and Planning Committee of cabinet , known as the inner cabinet, she is the only woman...
said her office has had just 881 calls on the subject. On 19 February 2007, she signed documents granting citizenship to 33 such individuals. Some of the reasons citizenship may have been lost is if the individual was born out of wedlock before 1977, or to a father who took a second citizenship. Another reason is if the child was born outside Canada, and failed to confirm their citizenship before turning 24 or 28. Some of the people affected reside in towns near the southern border, and hence were born in American hospitals. Others, particularly Mennonites, were born to Canadian parents in Mexico or Paraguay. An investigation by the CBC, based on Canadian census
Census in Canada
The Census in Canada is a census that takes place every five years. The census is conducted by Statistics Canada. The census provides demographic and statistical data that is used to plan public services including health care, education, and transportation, determine federal transfer payments, and...
data, concluded that the problem could affect an estimated 10,000 to 20,000 individuals currently residing in Canada.
On 29 May 2007, Canadian Minister of Citizenship and Immigration Diane Finley
Diane Finley
Diane Finley, PC, MP is a Canadian politician. She serves as Minister of Human Resources and Skills Development in the cabinet of Prime Minister Stephen Harper. Of the 12 MPs in the Priorities and Planning Committee of cabinet , known as the inner cabinet, she is the only woman...
announced her proposal to amend the Citizenship Act. Under the proposal, anyone naturalized in Canada since 1947 would have citizenship even if they lost it under the 1947 Act. Also, anyone born since 1947 outside the country to a Canadian mother or father, in or out of wedlock, would have citizenship if they are the first generation born abroad. Appearing before the Standing Committee on Citizenship and Immigration, Finley asserted that as of 24 May 2007, there were only 285 cases of individuals in Canada whose citizenship status needs to be resolved. Under the proposed legislation, anyone born before 1947 to a Canadian citizen abroad would be dealt with on a case-by-case basis; such individuals would have to apply for a ministerial permit.
Bill C-37, which received Royal Assent on 17 April 2009, amended the Citizenship Act to give Canadian citizenship to those who lost or never had it, due to outdated provisions in existing and former legislation. The law came into effect on 17 April 2009.
Resumption of Canadian citizenship
Former Canadian citizens who lost their citizenship as adults are generally required to obtain landed immigrant (permanent resident) status under normal rules and live in Canada for one year in order to resume Canadian citizenship.Former Canadians who lost British subject status before 1947 have no specific rights to Canadian citizenship, except in the case of women who lost British subject status on marriage to a foreign man.
Japanese Repatriation
On 22 September 1988, Prime MinisterPrime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...
Brian Mulroney
Brian Mulroney
Martin Brian Mulroney, was the 18th Prime Minister of Canada from September 17, 1984, to June 25, 1993 and was leader of the Progressive Conservative Party of Canada from 1983 to 1993. His tenure as Prime Minister was marked by the introduction of major economic reforms, such as the Canada-U.S...
agreed to a redress package for Japanese-Canadians deported from Canada between 1941 and 1946 (about 4,000 in total) and their descendants.
The package authorized a special grant of Canadian citizenship for any such person. All descendants of deported persons were also eligible for the grant of citizenship provided that they were living on 22 September 1988, regardless of whether the person actually deported from Canada was still alive.
Judicial review of provisions of current and previous citizenship acts
There have been a number of court decisions dealing with the subject of Canadian citizenship. In particular, the interpretation of the 3 year (1,095 day) residence requirement enacted by the 1977 Citizenship Act, which does not define the term "residence" and, further, prohibits an appeal of a Federal Court decision in a citizenship matter to the Federal Court of Appeal or the Supreme Court, has generated considerable judicial controversy.Over the years 2 principal schools of thought with respect to residence have emerged from the Federal Court.
Early on, in 1978, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re), opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant’s linkages suggest that Canada is his or her home, regardless of any absences from the country.
In Koo (Re), Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. Resolving such a question involves consideration of several factors:
- Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
- Where are the applicant's immediate family and dependents (and extended family) resident?
- Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
- What is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive?
- Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
- What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
The general principle is that the quality of residence in Canada must be more substantial than elsewhere.
In contrast, a line of jurisprudence flowing from the decision in Pourghasemi (Re) emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time.
In the words of Justice Francis Muldoon
Francis C. Muldoon
The Honourable Francis C. Muldoon was a judge of the Federal Court of Canada from July 18, 1983 until September 4, 2001.- References :...
:
It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook... So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.
The co-existence of such disparate, yet equally valid approaches has led some judges to comment that the citizenship "law is in a sorry state," that "there cannot be two correct interpretations of a statute," that "it does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court," that there's a "scandalous incertitude in the law,"
and that "there is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery."
In 2010 it seemed that a relative judicial consensus with respect to decision-making in residence cases might emerge. In several Federal Court decisions it was held that the Citizenship Judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).
However, most recently, this compromise formula was rejected by the Federal Court judges, who continued to plead for legislative intervention as the means to settle the residency requirement debacle.
A few of the other major decisions are:
Glynos v. Canada (1992). The federal court ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.
Benner v. Canada (1997). The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath).
Canada (Attorney General) v. McKenna (C.A.) (1999). As a result of the existing Citizenship Act, adopted children are treated differently from biological children born abroad to Canadian citizens. The Federal Court of Appeal has indicated that distinctions in the law based on "adoptive parentage" violate the equality rights provisions in section 15 of the Canadian Charter of Rights and Freedoms. Under the existing law, moreover, children adopted by Canadian parents who are living abroad and who wish to continue doing so cannot become permanent residents and, therefore, cannot become Canadian citizens.
Taylor v. Minister of Citizenship and Immigration (2006). The federal court ruled that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad. The ruling was far-reaching in terms of striking down a number of the loss provisions of the 1947 Citizenship Act based on the retrospective application of the Charter of Rights and Freedoms. The Canadian Government launched an appeal in 2006, and on 2 November 2007 the Federal Court of Appeal ruled in favour of the government, ruling that Mr. Taylor is not a Canadian citizen based on the 1947 Citizenship Act. However, on 24 January 2008, The Honourable Diane Finley, Minister of Citizenship and Immigration, gave him a special grant of citizenship under a section of the Citizenship Act which permits such action in special circumstances.
Rights and responsibilities of citizens
According to Citizenship and Immigration Canada, citizens are:- Entitled to enjoy the rights guaranteed by the Canadian Charter of Rights and FreedomsCanadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
(all persons present in Canada have these rights, regardless of citizenship). - Able to vote in political elections upon reaching the age of 18 (provided they are not absent from Canada for more than 5 years and intend to resume residency in Canada).
- Able to run for political office upon reaching the age of 18.
- Able to obtain a Canadian passportCanadian passportA Canadian passport is a passport issued to citizens of Canada for the purpose of international travel; allowing the bearer to travel in foreign countries in accordance with visa requirements; facilitating the process of securing assistance from Canadian consular officials abroad, if necessary; and...
. - Able to prevent risk of getting deportedDeportationDeportation means the expulsion of a person or group of people from a place or country. Today it often refers to the expulsion of foreign nationals whereas the expulsion of nationals is called banishment, exile, or penal transportation...
from CanadaCanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
(if the subject born outside Canada, but is naturalized). - Able to work for the Federal government (where citizenship is usually required/preferred).
- Allowed to live outside Canada indefinitely while retaining the right to return.
- Able to pass on Canadian citizenship to children born outside Canada (to the first generation only).
Citizens are responsible for:
- Serving on juryJuryA jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
when reaching the age of majority, and if selected. - Obeying Canada's laws.
- Respecting the rights and freedoms of others.
- Helping others in the community.
- Caring for and protecting the Canadian heritage and environment.
- Eliminating discrimination and injustice.
Proof of Canadian Citizenship Document
A citizenship certificate is issued when a permanent resident has sworn the oath of citizenship and has thus become a new Canadian citizen. It is also issued at the request of any Canadian citizen but could take many months to be issued. However, it is illegal to be in possession of more than one certificate of citizenship or naturalization.Commonwealth Citizenship
Under British law, Canadians are Commonwealth citizens and hence are entitled to certain rights in the United Kingdom:- access to the British working holiday visaWorking holiday visaA working holiday visa is a travel permit which allows travellers to undertake employment in the country issuing the visa for the purpose of supplementing their travel funds....
scheme - for those with a British born grandparent, access to the UK Ancestry Entry ClearanceUK Ancestry Entry ClearanceA UK Ancestry Entry Clearance often referred to as an "Ancestry Visa" is a United Kingdom Entry Clearance for Commonwealth citizens with a grandparent born in the United Kingdom, Channel Islands or Isle of Man who wish to work in the United Kingdom. It is used mainly by young Australians, New...
- for those born before 1983 who meet the requirements, Right of AbodeRight of Abode (United Kingdom)The right of abode is a status under United Kingdom immigration law that gives an unrestricted right to live in the United Kingdom. It was introduced by the Immigration Act 1971.-British citizens:...
in the United Kingdom - if resident in Great Britain or Northern Ireland, the right to vote and stand for public office there
Commonwealth citizenship also imparts rights within other Commonwealth realm
Commonwealth Realm
A Commonwealth realm is a sovereign state within the Commonwealth of Nations that has Elizabeth II as its monarch and head of state. The sixteen current realms have a combined land area of 18.8 million km² , and a population of 134 million, of which all, except about two million, live in the six...
s although many of these have now been repealed.
See also
- Nationality lawNationality lawNationality law is the branch of law concerned with the questions of nationality and citizenship, and how these statuses are acquired, transmitted, or lost. By custom, a state has the right to determine who its nationals and citizens are. Such determinations are usually made by custom, statutory...
- Department of Citizenship and Immigration Canada
- Oath of Citizenship (Canada)Oath of citizenship (Canada)The Oath of Citizenship, or Citizenship Oath , is a statement recited and signed by candidates who wish to become citizens of Canada...
- Permanent resident (Canada)Permanent resident (Canada)A Permanent Resident in Canada is someone who is not a Canadian citizen but who has been granted permission to live and work in Canada without any time limit on his or her stay...
- Canadian passportCanadian passportA Canadian passport is a passport issued to citizens of Canada for the purpose of international travel; allowing the bearer to travel in foreign countries in accordance with visa requirements; facilitating the process of securing assistance from Canadian consular officials abroad, if necessary; and...
- Passport CanadaPassport CanadaPassport Canada is an independent operating agency of the Government of Canada with bureaucratic oversight provided through Foreign Affairs Canada. It operates under the auspices of the Canadian Passport Order which defines the agency...
- Immigration to CanadaImmigration to CanadaImmigration to Canada is the process by which people migrate to Canada to reside permanently in the country. The majority of these individuals become Canadian citizens. After 1947, domestic immigration law and policy went through major changes, most notably with the Immigration Act, 1976, and the...
- Canadians of convenienceCanadians of convenienceThe term "Canadians of convenience" was coined by Canadian politician Garth Turner in 2006 in conjunction with the evacuation of Canadian citizens from Lebanon during the 2006 Israel-Lebanon conflict...
- Lost CanadiansLost CanadiansLost Canadians are those individuals who believe themselves to be Canadian citizens, but who lost their citizenship through the vagaries of either the current citizenship law or that in force prior to 1977....
- Honorary Canadian citizenshipHonorary Canadian citizenshipHonorary Canadian citizenship is an honour wherein Canadian citizenship is bestowed by the Governor General of Canada, with the approval of parliament, on foreigners of exceptional merit...
- Visa requirements for Canadian citizensVisa requirements for Canadian citizensAccording to the "Henley Visa Restrictions Index 2011," Canadian citizens can travel to 164 countries and territories visa-free or with visa on arrival. Countries or territories that require prior application for a visa are also mentioned below....
Further reading
- DeRocco David, John F. Chabot (2008) From Sea to Sea to Sea: A Newcomer's Guide to Canada Full Blast Productions, ISBN 978-0-9784738-4-6
- Stanford Frances, (2003) Citizenship and Immigration : Becomming a Canadian! S&S Learning Materials, ISBN 1-55035-746-8