Minister of Immigration, Refugees and Citizenship Canada Marc Miller introduced into the House of Commons on May 23, 2024, the 18-page Citizenship Act 2024 Amendment Act (Bill C-71), which would automatically confer Canadian citizenship to persons born abroad to a Canadian parent who is also born abroad prior to the coming into force of the proposed amendments, according to a media release from the Department of Immigration, Refugees and Citizenship Canada (IRCC).
Bill C-71 “would also extend access to a direct grant of citizenship to children born abroad and adopted by a Canadian parent beyond the first generation,” the federal government said.
Following the coming into force of the legislation, in order to pass on their Canadian citizenship, Canadian parents born abroad who have or adopt children also born outside Canada will have to meet a substantial connection test, defined as the parents having been physically present in Canada for least 1,095 cumulative days prior to the birth or adoption of their child.
Marc Miller, minister of Immigration, Refugees and Citizenship
The bill would provide citizenship to the descendants of “Lost Canadians” — “those who have never been able to become a citizen or lost citizenship because of previous and outdated legislative provisions — and to anyone born abroad to a Canadian parent in the second or subsequent generations, before Bill C-71 comes into force,” the government said.
While changes in 2009 and 2015 fixed the status of most lost Canadians, “a small, impacted cohort remained,” Miller said, which required additional amendments to remedy the situation.
He noted the proposed amendments respond to issues raised at Parliamentary committees and before the courts. On Dec. 19, 2023, an Ontario Superior Court judge declared unconstitutional a Citizenship Act provision, known as the first-generation limit or second-generation cutoff, that purported to prevent Canadian citizens born abroad from automatically passing citizenship on to their children who were also born abroad: Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152.
The federal government did not appeal the decision, which suspended the declaration of constitutional invalidity for six months — leaving the Parliament scant time now to pass a new law by June 19 — the week the House of Commons is scheduled to adjourn for the summer. Miller said the government hopes to fast-track the bill to royal assent, with opposition support, including from the NDP, which has been driving many of the proposed changes. “We hope that this can be passed at all stages," he said.
If the court’s deadline isn’t met, “we’ll have to go to the court and tell them what we’re doing, and perhaps seek an extension. We are still looking at a number of options. We don’t want an extension ad nauseam because there are people that are being prejudiced by this,” Miller said.
He also noted, “I have [been] very uncomfortable in the interim at applying a test that really should be legislative, but it’s something that we’ll have to speak to the court about.”
The successful Charter challenge was brought by several families affected by the “second generation cutoff,” which they argued treated them as second-class citizens. Last January, Miller explained that the government chose not to appeal Bjorkquist because the Citizenship Act “as it currently stands, has had unacceptable consequences for Canadians whose children were born outside the country.”
(The first-generation limit to citizenship by descent means that a Canadian citizen parent can pass on citizenship to a child born outside Canada if the parent was either born in Canada or naturalized before the birth of the child. As a result, Canadian citizens who were born outside Canada cannot pass on citizenship to their child born outside Canada and cannot apply for a direct grant of citizenship for a child born outside Canada and adopted, an IRCC backgrounder states.)
IRCC acknowledged that people who may be impacted by the proposed changes “will no doubt have questions about what this means for them and their families.”
If the bill becomes law, “we will work as quickly as possible to implement these changes and will provide more information for eligible individuals on our website,” the government said.
Bill C-71’s summary states that the proposed amendments would:
- ensure that citizenship by descent is conferred on all persons who were born outside Canada — before the coming into force of the amendments — to a parent who was a citizen;
- confer citizenship by descent on persons born outside Canada, after the first generation, on or after the coming into force of Bill C-71, to a parent who is a citizen and who had a substantial connection to Canada before the person’s birth;
- allow citizenship to be granted under s. 5.1 of the amended Citizenship Act to all persons born outside Canada who were adopted by a parent who was a Canadian citizen, before the coming into force of the amendments;
- allow citizenship to be granted under s. 5.1 of the Act to persons born outside Canada who are adopted on or after the coming into force of the bill by a parent who is a citizen and who had a substantial connection to Canada before the person’s adoption;
- restore citizenship to persons who lost their citizenship because they did not make an application to retain it under the former s. 8 of the Act or because they made an application under s. 8 that was not approved; and
- allow certain persons who become citizens as a result of the amendments coming into force to access “a simplified process to renounce their citizenship.”
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