By Associate Lawyer, Mathew Wilton
The right of Canadians to pass on citizenship to their children born outside of Canada has been enshrined in Canadian law for decades. Canadian citizenship is conferred at birth outside Canada as long as one of the child’s parents is a Canadian Citizen – and obtained their citizenship either by birth or through naturalization (immigrating to Canada).
But what about those born outside of Canada to a Canadian parent that was also born outside of Canada? Are they granted citizenship at birth?
Since 2009 the answer to this question was ‘no.’ This is because of a ‘first generation limit’ in The Citizenship Act implemented in 2009, preventing those born abroad who acquired their citizenship through birth from passing on the right of citizenship to their children. However, we now have a new answer to this question.
On January 22, 2024, Minister Miller, Minister of Immigration, Refugees and Citizenship announced that Canada will not appeal a decision of the Ontario Superior Court of Justice to strike down the ‘first generation limit’ to Canadian citizens by decent. The decision, Bjorkquist et al. v Attorney General of Canada, dated December 19, 2023, found the ‘first generation limit’ to be unconstitutional for violating the Charter rights of Canadians who acquired their citizenship when born abroad.
Specifically, the court found their rights to be violated because the ‘first generation limit’:
· creates a lesser class of citizenship for those who could not pass on citizenship to their children;
· has an adverse impact on women and individuals based on their national origin; and
· creates an unrealistic expectation for those who obtained citizenship at birth abroad to return to Canada to give birth themselves.
This potential change to the Citizenship Act (removing the ‘first generation limit) means that there are now a new group of Canadians: descendants of Canadians living abroad whose parents themselves acquired citizenship through their parents. While the next steps taken by the government remain to be seen, this is an exciting ruling that will provide an increase in access to Canadian citizenship. From Minister Miller:
Canadian citizenship is highly valued around the world and, as Minister of Immigration, Refugees and Citizenship, I’m committed to making the citizenship process as fair and transparent as possible.
The Canadian passport is among the most coveted in the world, but obtaining one is often not easy. The government’s response to this Court ruling applies to allows people to apply for proof of citizenship and allows people to live and work in Canada as Canadians, passing on their citizenship to their children regardless of how it was acquired.
If you believe that you are a Canadian citizen as a result of this policy change, contact us! You can book a consultation by writing to: email@example.com or by phone at (416) 203-2899 ext. 30.