Citizenship law is too rigid for those abroad with family ties to Canada

  • March 09, 2020
  • Amandeep S. Hayer

Almost all states apply the principals of jus sanguinis to its citizenship law. Canada is no exception. However, unlike Europe, Canada has placed arbitrary limits on claims of citizenship through jus sanguinis.

Under Canadian citizenship law, jus sanguinis claims are limited to the first generation born abroad (first-generation limitation) and exclude subsequent generations born outside Canada. Arguably the first-generation limitation has merit. However, the limitation, as currently enacted, provides no flexibility.   As the Library of Parliament criticized the first generation limitation: “[t]he major problem with this approach is that it may result in some people not being Canadian citizens at birth even though they and their parents have a substantial connection with Canada…”1

Any limitation prescribed by law should provide flexibility, especially given the globalized world that Canadians live in today, where more and more Canadians travel and interact with the rest of the world. As the first-generation limitation currently stands, it has undoubtedly affected several Canadians. Affected Canadian citizens include those who have had a child:

  1. with a non-Canadian citizen partner while temporarily outside Canada; or
  2. while residing in a border community where the closest hospital is in the U.S—so-called border babies.

During a 2015 election debate, Prime Minister Justin Trudeau, said “a Canadian is a Canadian is a Canadian. You devalue the citizenship of every Canadian in this place, in this country when you break it down and make it conditional.”  Yet the first-generation limitation remains a blight on Canadian citizenship law and prevents many would-be Canadians from inheriting citizenship.

Therefore, it begs the question: is it possible to expand jus sanguinis beyond the first generation, without extending citizenship to those individuals born to parents who have left Canada and severed their ties?

Returning to the old Canadian model

Between 1977 and 2009, like today, a person born abroad in the first generation had an unfettered right to Canadian citizenship. However, those born abroad in subsequent generations would automatically lose their Canadian citizenship on their 28th birthday, unless they applied for retention of citizenship. As long as each subsequent generation took the same steps, they could continue being Canadian citizens.

While on its surface this may seem like a novel solution, it too is fraught with problems. Imposing a requirement on individuals to retain citizenship creates a situation where people lost their Canadian citizenship unknowingly and arbitrarily. When this old model was in place, many assumed that their status as Canadian citizens was permanent and failed to inquire into any conditions on it.

The third way

Canada is hardly the only country that has attempted to limit jus sanguinis. Most countries in the Americas have opted for a near-universal right to jus soil but a more limited interpretation of jus sanguinis.

Like Canada, the United States limits claims of jus sanguinis, but unlike Canada, the limitation under U.S. law takes into consideration the parent’s ties to the United States.  Under current U.S. citizenship law, a child born outside the U.S. will be a U.S. citizen if:2

  1. both of their parents were U.S. citizens at the time of the birth; or
  2. one parent was a U.S. citizen, and the other a foreign national, then the child would be a U.S. citizen if, their U.S. citizen parent resided in the United States for at least 5 years, with at least two of those 5 years after the parent’s 14th birthday.

This option provides much-needed flexibility while limiting the right to citizenship to those who have substantial ties to the country:

  1. it establishes jus sanguinis not on an arbitrary test, but, rather, it considers personal factors that determine citizenship; and,
  2. it establishes certainty, rather than imposing retention requirements, as a person who is a citizen keeps their citizenship once it is conferred.

The U.S. legislation provides a balanced approach, as it imposes sufficient limits to jus sanguinis while providing the flexibility needed for unique situations where citizenship by jus sanguinis should apply.

U.S. citizenship law is not entirely without issues.  The requirement to prove your parents lived in the United States for the requisite five years—with two of those after their 14th birthday—may be difficult to prove for some, particularly those who are estranged from their parents.

If Canada were to adopt a similar interpretation, it may wish to maintain certainty for the first generation and leave the law unchanged. It should apply the U.S. model only to generations born subsequent to the first generation, giving those individuals much-needed relief.

Conclusion

In analyzing the current first-generation limitation in Canada, it is too inflexible and punitive to would-be Canadians.  It may be in Canada’s interest to adopt a similar formula to the United States, where those would-be Canadian citizens who have substantial ties to Canada are able to pass on their citizenship despite being born elsewhere.

Amandeep S. Hayer is a lawyer at Sedai Law Office

1 Becklumb, Penny, Bill C-37: An Act to amend the Citizenship Act, Library of Parliament: Publication No. 39-2-LS-591-E

[2] Immigration and Nationality Act, 8 USC 1433