Since the Harper Conservatives have come to power one of the areas which have attracted much of their legislative attention is the Citizenship and Immigration file. In an interview, which has attracted almost no national media attention at time of writing, published in the conservative National Post on December 27, 2013 the Minister of Citizenship and Immigration, Chris Alexander, discussed dramatic changes to Canada’s Citizenship laws which were being considered by the Conservative Government.
In what has been described as the “first comprehensive reforms to the Citizenship Act in more than a generation” the controversial bill is expected to be introduced in the House of Commons sometime in 2014.
Some of the changes being proposed include extending the qualifying period for residence to obtain Canadian Citizenship from the current three years in a four period to a longer timeframe. Minister Alexander suggested that it was “time to consider increasing the threshold.” “I think the balance of considerations is in favour of a longer requirement,” he said. “There’s only one way of truly understanding what it means to be Canadian, what it means to participate in Canadian life, and that is by living here.”
The Canadian government has already been cracking down on “alleged fraud” in reported physical presence in Canada for renewals of Permanent Residence Cards and for the granting of Canadian Citizenship. However, Citizenship and Immigration (CIC) is reportedly investigating over 11,000 suspected cases of fraud. Despite investing huge amounts of time and money to date only “twelve (12) people have had their citizenship revoked for fraud, despite more than 3000 investigations.”
Another expected change is the elimination of the automatic grant of Canadian Citizenship for those born in Canada. Reportedly Canada and the United States are the only developed countries in the World that grant citizenship to individuals born on their territory.
For a number of years Conservatives, and other commentators, have been complaining about “birth tourism” or tourists who come to Canada with the purpose of giving birth in Canada so that the child will acquire Canadian Citizenship.
Former immigration minister Jason Kenney was adamantly opposed to this current practice. “Granting citizenship based on place of birth is “outdated” and the rules need to change to prevent the proliferation of passport babies.” The new Minister of Citizenship and Immigration echoes this concern. Alexander said, “It’s something we need to look at. There is clearly abuse…..People who come here as birth tourists solely for the purpose of acquiring citizenship for newborns and without any intention of immigrating and living here permanently — we need to find a way of addressing that.”
In the United States these American born children are known as “anchor babies.” Critics in America are calling for the elimination of this policy of granting United States Citizenship to all individuals born into the country. They propose limiting the granting of citizenship to babies at least one of whose parents has permanent residence or citizenship status in the United States.
On April 17, 2009 a law amending the Canadian Citizenship Act came into effect. The law helped correct a problem in the citizenship status of many individuals who fell through the cracks in the law on obtaining Canadian Citizenship prior to the first Canadian Citizenship Law which was adopted in 1947. Prior to that date there was no law on the granting of Canadian Citizenship. The 1947 law also required those eligible for Canadian Citizenship to apply before they reached the age of 28. The 1947 Citizenship law, however, also discriminated against women and children born out of wedlock. The April 2009 law addressed some of these issues. Other problems still remained like the so called “lost Canadians” born outside of Canada and before the 1947 law was enacted.
The other major change to Canada’s Citizenship law in the 2009 law was removing the right of Canadians who were born outside of Canada the right to pass on their citizenship to their children if they were born outside of Canada and did not qualify for the limited exemptions to the law. These exemptions primarily applied to children of Canadian military or government personnel serving overseas.
This change has created many problems for children of those Canadians born outside of Canada who could not pass their citizenship to their children. The result is that some of these children end up “stateless” and with no citizenship at all. This is especially the case where the country does not grant citizenship based on birth in the country or only recognized the passing of status though the father. The Canadian parents must then sponsor their children to Canada which creates significant difficulties and delays. If the children are stateless they normally do not have a passport and cannot travel to Canada or to any other country without a travel document.
This new proposal to remove the acquisition of citizenship by birth, however, may also create a problem for such individuals who may become “stateless.” Canada ratified the 1961 Convention on the Reduction of Statelessness on July 17, 1978. The following is taken from the United Nations High Commissioner for Refugees (UNHCR) web site:
The 1961 Convention on the Reduction of Statelessness is the primary international legal instrument adopted to date to deal with the means of avoiding statelessness. The Convention provides for acquisition of nationality for those who would otherwise be stateless and who have an appropriate link with the State through factors of birth or descent. The issues of retention of nationality once acquired and transfer of territory are also addressed. The Convention does not address nationality issues within the jurisdiction of a State only, but also offers solutions to nationality problems which might arise between States. To this end, the principles outlined in the Convention have served as an effective framework within which to resolve conflicts concerning nationality.
Articles 1-4 of the Convention outline principles for the granting of nationality at birth to avoid future cases of statelessness.
Articles 5-7 of the Convention include regulation on the loss or renunciation of nationality and stipulate that loss/renunciation should be conditional upon the prior possession or assurance of acquiring another nationality. Articles 5 and 6 include principles of family unity in the light of avoidance of statelessness. In particular, Article 6 contains a provision of non-discrimination against family members as to the loss of nationality.
The issue of deprivation of nationality is dealt with in Articles 8-9. The basic principle is that no deprivation should take place if it will result in statelessness. Article 9 states that “A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.” Loss or deprivation of nationality may take place only in accordance with law and accompanied by full procedural guarantees, such as the right to a fair hearing by a court or other independent body. This Convention has the force of law in Canada. Canada has not signed the 1954 Convention Relating to the Status of Stateless Persons.
It remains to be seen how Canada’s international law obligations and being a signatory to the Convention on the Reduction of Statelessness will mesh with the proposed changes to Canada’s Citizenship laws.
According to CIC’s 2012-2013 departmental performance evaluations, citizenship grants were way below target. Only 106,353 people were conferred citizenship despite plans to grant it to as many as 214,944 people. The reason for the shortfall are increased scrutiny of residency fraud, a new tougher citizenship test and high Citizenship judge vacancy rates were contributing factors to the lower grant rate.
According to CIC citizenship application backlog stood at 349,249 at the end of 2012. The average processing time for a citizenship application was 25-35 months. In the last budget the government recognized backlogs were a problem and committed an additional $44 million over two years to speed up processing of citizenship applications. It is good that the government is addressing these unacceptable wait times.
The Minister of Citizenship and Immigration Chris Alexander has set out his views on what the proposed new legislation on Canada Citizenship law might look like. The final text of the proposed Bill has not yet been presented to the Canadian Parliament. However, it is safe to bet that the changes will be significant and will further restrict access to Canadian Citizenship to Permanent Residents of Canada and perhaps also their Canadian born children.
There are many Permanent residents in Canada who are presently eligible for Canadian Citizenship under the current rules. It would be prudent for these individuals to apply for Canadian Citizenship before the new law is passed.
Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada. He can be reached at [email protected]an.ca or at (519) 439-4015.