Restoring lost citizenship

  • March 24, 2023

The Immigration Law Section of the Canadian Bar Association supports retroactively restoring citizenship to individuals who lost theirs under s. 8 of the Citizenship Act. In a letter to the House of Commons Standing Committee on Citizenship and Immigration, the Section makes two recommendations to improve Bill S-245, An Act to amend the Citizenship Act (granting citizenship to certain Canadians). The CBA Section appeared in front of the Committee to present its recommendations on March 27.

Clarify the date of citizenship

Until Parliament enacted Bill C-37 in 2009, individuals born outside Canada to Canadian citizen parents in the second or subsequent generations between February 15, 1977 and April 17, 2009 had until their 28th birthday to apply to retain their Canadian citizenship. After Bill C-37, the retention requirements were repealed but only for individuals who had not yet lost their citizenship.

“The CBA Section supports eliminating the requirement to meet the retention requirements by age 28 and retroactively restoring citizenship to their date of birth. However, it is unclear if Bill S-245 will restore citizenship as of the date the Act comes into effect, or retroactively to the date citizenship was lost. We recommend that this be clarified.”

This is important, the letter adds, because it affects an individual’s ability to pass on citizenship to their children.

Pre-empting potential Charter challenges

S. 3(4) of the Citizenship Act inadvertently treats people differently based on their grandparent’s gender and marital status and Bill S-245 is liable to make that problem worse. The Section therefore recommends either amending S-245 or introducing a new bill to pre-empt a potential Charter challenge to s. 3(4) of the Citizenship Act.

The second potential Charter issue is that current legislation does not allow people who live abroad but have significant ties to Canada and who are born in the second or subsequent generations to become Canadian citizens. “Parliament may wish to consider changes to the Citizenship Act, to permit those born in second and subsequent generations to also become Canadian citizens,” the CBA letter reads.