Retention Requirements for Second and Subsequent Generation Applicants born after February 14, 1977
Under the 1977 Act, a retention requirement existed for second generation children whose Canadian parent was also born abroad. According to Section 8 of the 1977 Act, if a person was born outside Canada after February 14, 1977 and was a Canadian citizen by reason that, at the time of his/her birth, one of his/her parents was also a Canadian citizen by virtue of Subsection 3(1)(b) or 3(1)(e), the person would cease to be a Canadian citizen upon attaining twenty-eight years of age, unless that person:
- Made an application to retain citizenship; and
- Registered as a Canadian citizen and either resided in Canada for a period of at least one year immediately preceding the date of the application or established a substantial connection with Canada.
"Substantial connection" was defined in the regulations as follows:
- The person has been employed, for at least two of the four years immediately preceding the date of his application, in the public service of Canada or of a province or as a member of the Canadian forces or the Royal Canadian Mounted Police or as a Canadian representative of the United Nations or one of its affiliated agencies; or
- The person has an adequate knowledge of one of the official languages of Canada, of Canada and the responsibilities and privileges of citizenship, determined in accordance with the criteria set out in the regulations and, since attaining the age of fourteen years of age, has spent more than one year in Canada with a parent, brother, sister, aunt, uncle, or grandparent or in attendance at a recognized secondary or post-secondary educational institution.
Resumption of Lost Citizenship
Where a person subject to Section 8 of the 1977 Act ceased to be a Canadian citizen for failure to comply with the retention requirements, it was still possible to apply for resumption of Canadian citizenship. According to Subsection 11(1) of the 1977 Act, the Minister would be required to grant citizenship to any person who, having ceased to be a citizen:
- Made an application for resumption of citizenship;
- Was not the subject of an order of or a declaration by the Governor in Council made pursuant to Section 10 (fraud) or Section 20 (matters of security) of the 1977 Act or Section 18 of the 1947 Act;
- Was not under a deportation order; and
- Had been lawfully admitted to Canada for permanent residence after having ceased to be a citizen, has not ceased since that admission to be a permanent resident, and has resided in Canada since that admission for at least one year preceding the date of his application.
The 2009 Amendments
Remedial Provisions Contained in the 2009 Amendments
The 2009 Amendments sought to restore Canadian citizenship to the certain individuals who had either lost Canadian citizenship or who had never been Canadian citizens and to ensure the retroactive grant of citizenship to persons who had lost citizenship and then regained it through a grant or resumption under a previous remedial provision. It did so by adding additional provisions to Subsection 3(1), which describes persons who are now considered Canadian citizens.
As a result of the 2009 Amendments, the following individuals are now considered Canadian citizens:
A related issue of concern is that limiting Canadian citizenship to the first generation may render some children of Canadians born abroad stateless. This can occur if the child is born in a country where the concept of jus sanguinis (citizenship through ancestry) applies rather than jus solis (citizenship through birth in a specific country); where jus sanguinis applies, the child would not acquire the citizenship of his or her country of birth.
The 2009 Amendments provide only limited relief to such stateless children. According to Subsection 5(5), Canadian citizenship shall be granted to a person born outside of Canada after April 17, 2009, to a parent who was a Canadian at the time of the person's birth if, at the time the person applies for Canadian citizenship, he or she:
The first two provisions are clearly intended to restore Canadian citizenship to individuals who have lost it. The last three provisions are intended to retroactively fill in gaps of time in the past when these individuals were not considered Canadian citizens; without these provisions, any children born during the gap in time would not otherwise acquire Canadian citizenship (since the parent would not have been a Canadian citizen at the time of their birth).
Although these remedial provisions will be beneficial to many individuals, they do not restore Canadian citizenship to all individuals (see below).
Undesirable Consequences of the 2009 Amendments
The primary issue of concern arising from the 2009 Amendments is that the ability to transmit Canadian citizenship to children born abroad will be limited to the first generation [Paragraph 3(3)(b)]. In other words, a person born abroad to a Canadian citizen who was born in Canada will still be considered a Canadian citizen. However, if that Canadian citizen born abroad subsequently has children born abroad, those children will not be considered Canadian citizens. An exception to this limitation exists for individuals who are born to a Canadian parent who is working abroad in or with the Canadian Armed Forces, the federal public administration, or the public service of a province, unless the parent is a locally engaged person.
Fortunately, this provision only applies to persons born after the effective date of the 2009 Amendments (April 17, 2009). According to Subsection 3(4), persons born before that date who are second or subsequent generation Canadians continue to have Canadian citizenship.
In addition, the 2009 Amendments repeal the previous retention requirement that was imposed on second and subsequent generations by the 1977 Act. However, they do not restore Canadian citizenship to persons who previously lost their citizenship as a result of this previous retention requirement (because they failed to register before the age of 28).
- A person who lost Canadian citizenship for any reason other than the following three reasons:
- The person renounced his or her Canadian citizenship;
- The person's Canadian citizenship was revoked for false representation, fraud, or concealment of material circumstances; or
- The person is a second or subsequent generation Canadian born abroad after enactment of the 1977 Act and who lost citizenship for failure to retain by age 28 [Paragraph 3(1)(f)];
- A person who was born abroad to a Canadian parent before the 1977 Act but who never became a Canadian citizen [Paragraph 3(1)(g)];
- A person who was born abroad to a Canadian Parent before the 1977 Act and who went through the process of immigrating to Canada and then naturalizing to become a Canadian citizen [Paragraph 3(1)(h)];
- A person who who had been a citizen by way of grant, ceased to be a citizen for a reason other than one of the three reasons listed in Paragraph 3(1)(f), but regained citizenship under the 1977 Act [Paragraph 3(1)(i)]; and
- A person who had been a citizen other than by way of grant, ceased to be a citizen for a reason other than one of the three reasons listed in Paragraph 3(1)(f), but resumed his or her Canadian citizenship under a provision from prior legislation [Paragraph 3(1)(j)].
- Is less than 23 years old;
- Has resided in Canada for at least three years during the four years immediately preceding the date of the citizenship application;
- Has always been stateless; and
- Has not been convicted of certain national security offences.