History of Canadian nationality law

Immigration to Canada
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Canada established its own nationality law in 1946 with the enactment of the Canadian Citizenship Act 1946, which took effect on 1 January 1947. It was the second nation in the then British Commonwealth to establish its own nationality law; the first was the Irish Free State, which was a Commonwealth member until 1949 and established its own nationality law in 1935.

Under current Canadian law, Canada does not restrict dual citizenship but Passport Canada encourages its citizens to travel abroad on their Canadian passport, so they can access Canadian consular services.

Imperial and federal legislation, 1868-1914

At common law, a person born within Her Majesty's dominions became a British subject at birth. The various colonies of the British Empire passed their own laws determining how naturalization as a subject could take place, as well as what status aliens possessed, within their respective jurisdictions. Upon the passage of the Constitution Act, 1867, the Parliament of Canada was given authority over "Naturalization and Aliens", by virtue of section 91(25).

The Aliens and Naturalization Act, 1868 was the first federal Act to be passed, and it provided that persons that had been previously naturalized in any part of the Dominion possessed the same status as anyone naturalized under that Act. In addition:

• Aliens could apply for naturalization after three years' residence in Canada.
• Alien-born women became naturalized by marriage to a natural-born subject or to a husband naturalized under the Act.
• The laws in Nova Scotia and the former Province of Canada that allowed aliens to hold property were kept in force.

The 1868 Act was replaced by the Naturalization and Aliens Act, 1881, which came into force on 4 July 1883. It made the rules allowing aliens to hold property uniform throughout the Dominion, and otherwise standardized the law along the same lines as the Naturalization Act 1870 of the United Kingdom.

Canadian citizens and Canadian nationals, 1910-1947

Canadian citizenship was originally created under the Immigration Act, 1910, to designate those British subjects who were born, naturalized or domiciled in Canada. All other British subjects required permission to land. "Domicile" was defined as having been resident in Canada for three years, excluding any time spent in prisons or mental institutions.

The status of all British subjects in the Empire (whether by birth or naturalization) was standardized by the Imperial British Nationality and Status of Aliens Act 1914, which was adopted in Canada by the Naturalization Act, 1914. As a result, the period of residence required to qualify for naturalization was increased from three years to five years.

A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921, which was defined as being a Canadian citizen as defined above, their wives, and any children (fathered by such citizens) that had not yet landed in Canada.

After the passage of the Statute of Westminster in 1931, whereby each self-governing dominion of the British Empire was henceforth considered equal in status to all the others, with the Crown becoming one that is shared and operating independently in each realm rather than as a unitary British Crown under which all the dominions were subordinate, the monarchy thus ceased to be an exclusively British institution. Because of this Canadians, and others living in countries that became known as Commonwealth Realms, were known as subjects of the Crown. However in legal documents the term "British subject" continued to be used.

Prior to 1947, Canada issued two types of passports: those to British subjects by birth (coloured blue), and those to naturalized British subjects or citizens (coloured red).

World War II-Era War Brides

By marrying a Canadian soldier, a woman, if not already British, acquired the status of British subject and Canadian national. If she then landed in Canada, she became a British subject of Canadian domicile.

In addition, Order in Council P.C. 7318 of 21 September 1944 - later replaced by P.C. 858 of February 9, 1945 - stated:

"Every dependent applying for admission to Canada shall be permitted to enter Canada and upon such admission be deemed to have landed within the meaning of the said Act ; and where the member of the Canadian Armed Forces is either a Canadian citizen or has Canadian domicile, the dependent shall, upon being landed, be deemed to have acquired the same status for the purposes of the said Act."

Laws governing Canadian nationality

Timeline of Canadian nationality law

↓first Federal Act

↓first use of term "Canadian citizen"

↓Canadian citizenship separated from British nationality

↓standardized to Imperial naturalization criteria

↓extension to Newfoundland

↓dual citizenship loss rules revoked

↓reform of descent rules

↓uniformity of alien property ownership rules

↓P.C. 7138 - war brides provision

↓reform of descent rules

↓reform of adoption rules

↓"Canadian national" as separate status

↓extension to First Nations

↓delayed foreign birth registration revoked

 

 

 

 

 

 

 

 

 

Naturalization and Aliens Act, 1881

 

 

 

 

 

 

Immigration Act, 1910

 

 

 

 

 

 

Naturalization Act, 1914

 

 

 

 

 

 

Canadian Nationals Act, 1921

 

 

 

 

 

 

Canadian Citizenship Act, 1946

 

 

 

 

 

 

Canadian Citizenship Act, 1976

 

 

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1867

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1887

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1907

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1927

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1947

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1967

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1987

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2007

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2027

Creation of Canadian Citizenship, January 1947

First Canadian Citizenship ceremony on January 3, 1947 in Ottawa.

Canadian citizenship, as a status separate from British nationality, was created by the Canadian Citizenship Act, 1946, which came into effect on 1 January 1947.

Canadian citizenship was generally conferred immediately on the following persons:

• British subjects born or naturalized in Canada
• British subjects who had resided in Canada as immigrants since 1 January 1942
• British subjects born outside Canada whose father met one of the above criteria and either were aged under 21 on 1 January 1947, or had been admitted to Canada as landed immigrants before that date

Eligibility of married women

There were complex rules for determining whether married women qualified as British subjects that could be eligible for Canadian citizenship.

Until 14 January 1932, the rule was that the wife of a British subject was deemed to be a British subject, and the wife of an alien was deemed to be an alien. After that date, and until 31 December 1946, the rules were generally as follows:

At time of marriage		During the marriage
If husband was a British subject …	… then wife automatically became a British subject on marriage.	If husband naturalized as a British subject …	… then wife must apply to become a British subject and obtain a Series H certificate.
If husband was an alien …	… then wife only ceased to be a British subject if she automatically acquired her husband's alien nationality upon marriage.	If husband naturalized in a foreign country …	… then wife's status changed only if she was automatically included in her husband's alien naturalization. However, she could apply to retain British subject status and be issued a Series I certificate.

Canadian Citizenship Act, 1946

British & Commonwealth citizenship
Commonwealth nationality laws
British (history) Australian Bangladeshi Barbadian Canadian (history) Cypriot Indian Malaysian Pakistani Maltese New Zealand Samoan Singaporean South African Tongan Irish citizens in the UK
Classes of citizens and subjects
British Citizen British Subject British Overseas Territories Citizen British Overseas Citizen British National (Overseas) British Protected Person Commonwealth citizen
Rights and visas
Right of abode in the UK Indefinite leave to remain in the UK Permanent resident (Australia) Permanent resident (Canada) Permanent resident (New Zealand) Belonger status UK Ancestry Entry Clearance
Acts
Ireland Act 1949 British Nationality Act 1981 British Nationality (Falkland Islands) Act 1983 British Overseas Territories Act 2002 Canadian Citizenship Act 1946

In addition to those people who became Canadian citizens upon the coming into force of the Act (popularly known as the "1947 Act" due to the year it came into force), citizenship afterwards was generally acquired as follows:

• birth in Canada (except in the case of those born to non-British diplomats)
• naturalization in Canada after five years' residence as an immigrant
• grant of citizenship to a foreign woman married to a Canadian man after one year's residence in Canada
• grant of citizenship to women who lost British subject status prior to 1947 upon marriage to a foreign man or his subsequent naturalization
• registration of child born outside Canada to a Canadian father (in exceptional cases a Canadian mother)

Loss of Canadian citizenship generally occurred in the following cases:

• voluntary acquisition of another citizenship by a Canadian citizen aged 21 or over while outside Canada
• in the case of a person aged under 21, Canadian citizenship was lost if the responsible parent (the father, if born in wedlock or the mother, if born out of wedlock) lost Canadian citizenship and the child possessed or obtained another citizenship at the time
• naturalized Canadians who lived outside Canada for 10 years and did not file a declaration of retention (repealed 7 July 1967)
• where a Canadian had acquired that status by descent from a Canadian parent, loss of citizenship could occur on the person's 24th birthday unless the person was living in Canada on that date or had filed a declaration of retention between their 21st and 24th birthday.

Although Canada restricted dual citizenship between 1947 and 1977, there were some situations where Canadians could nevertheless legally possess another citizenship. For example, migrants becoming Canadian citizens were not asked to formally prove that they had ceased to hold the nationality of their former country. Similarly children born in Canada to non-Canadian parents were not under any obligation to renounce a foreign citizenship they had acquired by descent. Holding a foreign passport did not in itself cause loss of Canadian citizenship.

Extensions of citizenship

• The Dominion of Newfoundland joined Confederation on 31 March 1949, and British subjects in Newfoundland acquired Canadian citizenship on broadly similar terms to those applying in the rest of Canada since 1947.
• Those defined as Status Indians or "Eskimos" (Inuit) who were domiciled in Canada on 1 January 1947 were granted citizenship on June 7, 1956.

Canadian Citizenship Act, 1976

Citizenship law was reformed by the Canadian Citizenship Act, 1976, which came into force on 15 February 1977. Canada removed restrictions on dual citizenship, and many of the provisions to acquire or lose Canadian citizenship that existed under the 1947 Act were repealed.

Under the new Act (popularly known as the "1977 Act" due to the year it came into force), Canadian citizenship is acquired by:

• birth in Canada (except in cases where parents are diplomats of a foreign nation)
• birth overseas to a Canadian parent
• naturalization (grant) after three years residence in Canada
• notification in the case of a woman who lost British subject status by marriage before 1947
• registration in some cases of persons born outside Canada to a Canadian citizen before 15 February 1977 (these provisions were terminated on 14 August 2004).

Canadian citizens are in general no longer subject to involuntary loss of citizenship, barring revocation on the grounds of citizenship or immigration fraud.

The one exception is section 8 of the Citizenship Act which applies to Canadians born outside Canada to a Canadian parent who also acquired Canadian citizenship by birth outside to a Canadian parent. Such persons lose Canadian citizenship at age 28 unless they have established specific ties to Canada and applied to retain Canadian citizenship. Children born outside Canada to naturalized Canadian citizens are not subject to the section 8 provisions, nor is anyone born before 15 February 1977.

2009 amendments

Effective 17 April 2009, the Act was significantly amended.

• There is no longer a requirement nor any allowance to apply to maintain citizenship.
• Individuals can now only become Canadian citizens by descent if one of their parents was either a native-born citizen of Canada or a foreign-born but naturalized citizen of Canada. This effectively limits citizenship by descent to one generation born outside Canada. Such an individual might even be stateless if he or she has no claim to any other citizenship. (This situation actually occurred to a child born in China to a father who is a Canadian citizen born outside Canada.) The second generation born abroad can only gain Canadian citizenship by immigrating to Canada - this can be done by their Canadian citizen parents sponsoring them as dependent children, which is a category with fewer requirements and would take less time than most other immigration application categories.
• Foreign-born citizens being adopted by Canadian citizens can now acquire Canadian citizenship immediately upon completion of the adoption, without first entering Canada as a permanent resident under the previous rules.

Judicial review of provisions of current and previous Citizenship Acts

There have been a number of court decisions dealing with the subject of Canadian citizenship. A few of the major decisions are:

Glynos v. Canada (1992). The Federal Court ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.

Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), 1997 1 SCR 358. The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath).

Canada (Attorney General) v. McKenna, 1998 CanLII 9098 (FCA), 1999 1 FC 401. The Federal Court of Appeal ruled that the Minister had to establish a bona fide justification pursuant to section 15(g) of the Canadian Human Rights Act for the discriminatory practice in the Act on adoptive parentage, where children born abroad to Canadian citizens obtain "automatic" citizenship while children adopted outside Canada must gain admission to Canada as permanent residents, as mandated by paragraph 5(2)(a ) of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status. However, it also declared that the Canadian Human Rights Tribunal had overreached itself in declaring that the granting of citizenship was a a service customarily available to the general public, and had breached the rules of natural justice by failing to notify the Minister that the provisions of the Citizenship Act were being questioned.

Taylor v. Minister of Citizenship and Immigration, 2007 FCA 349. The Federal Court of Canada had ruled in September 2006 that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad. This was reversed by the Federal Court of Appeal in November 2007, which held that Taylor had lost his Canadian citizenship under section 20 of the 1947 Act (absence from Canada for ten consecutive years), and therefore the court could not grant his request. However, he was now able to request a grant of citizenship under section 5(4) of the current Act (special cases),and citizenship was subsequently granted in December 2007.

Canadians and British nationality

While Canada created Canadian citizenship on 1 January 1947, the United Kingdom nationality legislation continued to grant British nationality to Canadians until 31 December 1948.

At this point, Canadian citizens generally lost British nationality unless they had specific ties to the UK & Colonies itself. However, in the intervening period some people acquired British nationality based on ties solely with Canada, while not acquiring Canadian citizenship. These included:

• women from outside the Commonwealth who married Canadian men in 1947 and 1948 who did not register as Canadian citizens before 1 January 1949.
• children born outside Canada to Canadian fathers in 1947 and 1948 who were not registered as Canadian citizens before 1 January 1949.

Additionally, some British subjects connected with Canada did not become Canadians in 1947. This includes children born outside Canada to Canadian fathers where the child was born before 1926 (hence aged over 21 on 1 January 1947) and had not been admitted to Canada as a landed immigrant before 1947.

Under the terms of section 12(4) of the British Nationality Act 1948:

• such persons acquired citizenship of the UK & Colonies (CUKC) on 1 January 1949 on the basis of being British subjects connected with Canada, if they did not have citizenship of, or connections with, another Commonwealth country or Ireland.
• where a person had connections with another Commonwealth country that had not introduced a citizenship law as of 1 January 1949, they acquired citizenship of the UK and Colonies on the date the other country introduced a citizenship law if they did not become a citizen of that country at the time
• A complication arises if the person had a connection with India or Pakistan and such a person may have remained a British subject without citizenship if he did not acquire Indian or Pakistani citizenship.

Persons acquiring CUKC would have retained it upon a later acquisition of Canadian citizenship. However they would only be British citizens today if they had obtained a 'right of abode' in the UK under the terms of the Immigration Act 1971, such as by having a UK-born grandparent. Otherwise they would be British Overseas citizens.

British subjects without citizenship would have retained that status only if they did not acquire a Commonwealth nationality (or Irish citizenship) before 1983, or any citizenship from 1983 or later.

British Overseas citizens and British subjects may register as British citizens if they have no other nationality (and have not lost another nationality since 4 July 2002), but otherwise do not have an automatic right to live in the United Kingdom.

See also

• Canadian immigration law
• Canadian nationality law
• Immigration to Canada
• Canadians of convenience
• Lost Canadians