As an immigration lawyer and co-chair of the Law Society of Ontario’s Immigration Law Summit, I know that our bar is following issues relating to Canadian citizenship with great interest.
Citizenship as a legal status came about as of the January 1, 1947 Canadian Citizenship Act, which established this status for those born in Canada, were naturalized, or derived it by descent.
Citizenship by descent was limited as per the Citizenship Act, which came into force April 17, 2009. As per the ‘first-generation limit,’ a citizen parent could only transfer citizenship to a child born outside of Canada if the parent was born in Canada or naturalized before the birth of the child.
On December 19, 2023, the Ontario Superior Court of Justice found that the limitation was unconstitutional and the government did not appeal. However, the declaration of invalidity of the limitation has been suspended to provide the government with time to rectify the issue. Several extensions have been granted by the Court to the government.
Proposed amendments to the Citizenship Act provide that a citizen parent can transfer citizenship to a child born outside of Canada (even if the parent was born outside of Canada) if that parent can meet a ‘substantial connection’ test, which is defined as 1,095 cumulative days of physical presence in Canada. Citizenship would be granted effective as of the child’s date of birth.
In this current period, where the amendments are proposed but are not yet the law, we are assisting applicants to apply for a citizenship certificate under interim measures whereby the government will confirm they are impacted by the first generation limit and then invite the applicant to request a discretionary grant of citizenship. This avoids the need to meet the proposed 1,095 day test for the parent and should be pursued in a timely manner for affected clients.
