New Canadian Citizenship Rule

Jennifer Roggemann explians the new Canadian Citizenship rule.

Introduction:

To obtain citizenship, there are three ways in general:

  • You were born in Canada – jus soli or citizenship by birth on soil:
  • You were born outside of Canada, but entered Canada as a permanent resident or landed immigrant and obtained a citizenship – naturalization;
  • You were born to a Canadian parent – jus sanguis, jus sanguinis or citizenship by descent.

Please note that I did not discuss any adopted persons by a Canadian parent, because such matters are more complex, depending on the timing and method of adoption taken place.

A new Canadian citizenship rule came into effect on April 17th, 2009 to deal with the third category to obtain Canadian citizenship for those born to a Canadian parent outside Canada.

Background:
Under the Citizenship Act, 1947, a person born outside Canada in wedlock to a Canadian mother and a non-Canadian father was not a citizen by birth. Subsequently, in 1977, the Citizenship Act was amended to allow the above-described individuals to apply for a grant of Canadian citizenship for a limited time, until August 14th, 2004. After August 14th, 2004, if such an individual did not apply for citizenship, then that individual was not a citizen.

As a result of the new citizenship rule, the above described individuals are Canadian citizens by descent, and are not required to apply for citizenship, but such is restored retroactively to the date of birth of those individuals.

Citizenship by Birth:

If you were born in Canada, you are a Canadian citizen, except when your parents are foreign diplomats and non-Canadians at the time of your birth.

Citizenship by Descent:

For those born after February 14th, 1977:

The critical date is the date of birth of a person who claims to be a Canadian citizen. The person must be born after February 14th, 1977. If you were born after February 14th, 1977 to a Canadian mother or father, you are a Canadian citizen by descent.

After April 17th, 2009, if you are born after April 17th, 2009 to a Canadian mother or father outside of Canada, then you are a Canadian citizen regardless whether you are the first generation or subsequent generation of Canadian born outside of Canada, as long as you register your birth before you turn 28 years of age. However, with the new law, if you were born to a Canadian mother or father outside of Canada as a second generation Canadian and did not register your birth and you turn 28 years of age as of April 17th, 2009, in that case, you are NOT a Canadian citizen.

If you have registered your birth prior to April 17th, 2009 and have turned 28 years of age, then you are a citizenship by descent even if you are a second generation Canadian.

This new rule DOES NOT restore citizenship to a person born between February 15th, 1977 and April 16th, 2009 to a Canadian father or mother who has turned 28 years of age and did not register his/her birth.

For those born between January 1st, 1947 and February 14th, 1977:

This section applies if you were born outside of Canada between January 1st, 1947 and February 14th, 1977, born to a Canadian mother (out of wedlock) or father (in wedlock) who was eligible to be registered as a citizen born outside Canada but was not registered until After February 17th, 1979. This right expired on August 14th, 2004. Some of these individuals may apply under the new rule, provided that they are the first Canadian generation.

For those first generation born outside Canada but never were citizens before April 17th, 2009 (between January 1st, 1947 and February 14th, 1977):

These are the individuals will be citizens under the new rule, provided that they are the first generation born outside of Canada and at least one of their parents was a Canadian at the time of their birth.

Conclusion:

If you were born OUTSIDE OF CANADA between January 1st, 1947 and February 14th, 1977 to a Canadian mother or father who were born in Canada or were naturalized Canadians and you were never a Canadian citizen, then you are Canadian under the new Canadian citizenship rule.

If you were born OUTSIDE OF CANADA after February 15th, 1977 to a Canadian mother or father who was born in Canada or was a naturalized Canadian and you are a Canadian citizen by descent.

To illustrate the new rule, I have two sample situations hereunder. Please note that these are simple illustrations only, without any further facts that may be taken into consideration in final decisions. To determine whether one is a Canadian citizen under this new rule, he/she must consult with a professional for such determination.

Sample Situation – #1

Cam is a US citizen born on November 30th, 1950 in Michigan, United States. His mother was Canadian, born on March 21, 1930 and married to his father, a US citizen, in June of 1947. He visited with his mother’s relatives in Canada, but his mother never registered his birth in Canada. He did not know anything about being a Canadian.

Is Cam a Canadian under the new rule?

  • His mother was a Canadian born on March 21st, 1930. As a British subject at the time of her birth, she became a Canadian on January 1st, 1947.
  • She subsequently married his father, a US citizen, in June of 1947. By virtue of her marriage, she lost her Canadian citizenship.
  • Because he was born outside Canada in wedlock, he was not eligible to be a Canadian on November 30th, 1950.
  • On February 15th, 1977, he was 27 years old and he was eligible to register his birth and he would be granted Canadian citizenship.
  • He did not register his birth as of August 14th, 2004.
  • He lost his Canadian citizenship.
  • By virtue of the new rule on April 17th, 2009, as the first Canadian generation born to a Canadian mother, who never renounced her Canadian citizenship before her death, he will be a Canadian by descent.

Sample Situation – #2

Sam is a Mexican citizen by birth. His grandfather was a Canadian citizen. His grandfather was born March 11th, 1928 in Canada. On June 26th, 1948, his grandfather went to Mexico. In Mexico, his grandfather married a Mexican woman in 1953. His father was born on November 12th, 1955. His father married his mother who is a Mexican by birth on June 12th, 1975. Sam was born on July 25th, 1978. His aunt, his father’s younger sister, was born on June 20th, 1958. She went to Canada and met her husband, a Canadian by birth in January 23rd, 1976. She and her husband came to Mexico to reside soon after. She had a child on February 11th, 1979, Sam’s cousin Sally.

Is Sam a Canadian?

  • Sam is a second generation born outside Canada. His grandfather was British subject on his birth on March 11th, 1928. Then, his grandfather became a Canadian citizen on January 1st, 1947.
  • His grandfather went to Mexico and his father was born in November 12th, 1955. His father could have been a Canadian citizen by registering himself before he turned 28 years old – November 11th, 1983. Or Sam could have been a Canadian citizen if he was registered before August 13th, 2004. However, since he did not register his birth, he lost his opportunity to be a Canadian citizen. Had he registered his birth before August 13th, 2004, he would be then a Canadian citizen.
  • However, if his father wishes to be a Canadian, under the new rule he is a Canadian citizen. He was born to a Canadian father in wedlock between January 1st, 1947 and February 14th, 1977.

Is Sally a Canadian?

  • Sally would be the same as Sam, if her father was a Mexican. However, Sally’s father is a Canadian by birth. Therefore, she is the first generation born outside of Canada to a Canadian parent.
  • Sally was born after February 15th, 1977 but before April 19th, 2009. Therefore, on her mother’s side, she is a second generation Canadian born outside of Canada who did not register her birth and turned 28 years old on February 15th, 2005. Therefore, she is not a Canadian citizen.
  • However, because her father is a Canadian by birth, Sally is the first generation born outside of Canada from her father’s side. Therefore, she is a Canadian citizen under the new rule.

If you, or someone you care about, is dealing with immigration law issues in the Kitchener, Ontario Region, contact Jennifer Roggemann Law Office for a consultation.

This article is provided as an information service only and should not be used as legal advice. Laws vary by jurisdiction so please consult with an appropriate legal professional if you are looking for help with a specific situation.