Jump to content

Canadian nationality law: Difference between revisions

From Wikipedia, the free encyclopedia
Browse history interactively
← Previous editNext edit →
Content deleted Content added
VisualWikitext
Line 22: Line 22:


Section 3(2) of the Current Act states that Canadian citizenship is not granted to a child born in Canada if, at the time of his/her birth, neither of his/her parents was a Canadian citizen or Canadian permanent resident '''and''' either parent was a diplomatic or consular officer or other representative or employee of a foreign government in Canada or an employee of such a person.
Section 3(2) of the Current Act states that Canadian citizenship is not granted to a child born in Canada if, at the time of his/her birth, neither of his/her parents was a Canadian citizen or Canadian permanent resident '''and''' either parent was a diplomatic or consular officer or other representative or employee of a foreign government in Canada or an employee of such a person.
Hanuz mishe nevesht


==Canadian citizenship by descent==
==Canadian citizenship by descent==

Revision as of 17:46, 27 November 2010

Part of a series on
Canadian citizenship
Immigration
Nationality
Legislation
Agencies
Issues
Demographics
flag Canada portal

Canadian citizenship is typically obtained by birth in Canada, birth abroad when at least one parent is a Canadian citizen and was born in Canada, or by adoption abroad by at least one Canadian citizen. It can also be granted to a permanent resident who lives in Canada for three out of four years and meets specific requirements. Details and exceptions to these general rules are explained below.

History of Canadian Citizenship

Main article: History of Canadian nationality law
First Canadian Citizenship ceremony in 1947 in Ottawa.

The Canadian Citizenship Act of 1946 took effect on 1 January 1947. Prior to that date, Canadians were British subjects and Canada's nationality law closely mirrored that of the United Kingdom. As Canadian independence was obtained incrementally over the course of many years since the formation of the Canadian Confederation in 1867, the Second World War in particular gave rise to a desire amongst Canadians to have their country recognized as a fully-fledged sovereign state with a distinct citizenship.[1] Prior to the conferring of legal status on Canadian citizenship, Canada's naturalization laws consisted of a hodgepodge of confusing Acts,[2] which may have provided additional impetus for the editing of Canadian citizenship.

On 1 January 1947, Canadian citizenship was conferred on most British subjects connected with Canada. Subsequently, on 1 April 1949, Canadian nationality law was extended to Newfoundland upon that country's admission to Confederation.

From 1 January 1947 until the early 1980s, Canadian citizens remained British subjects. They had a dual status. Nowadays the dual status is that of Canadian citizen and Citizen of the Commonwealth.

Canadian nationality law was substantially revised on 15 February 1977 when the new Citizenship Act came into force. Notably, from that date Canada fully accepts multiple citizenship. However, those who lost Canadian citizenship before that date did not automatically have it restored until 17 April 2009 when Bill C-37 became law.[3]

Birth in Canada

British citizenship and
nationality law
Introduction
Nationality classes
See also
Law relating to former territories
Relevant legislation

In general, everyone born in Canada from 1947 or later acquires Canadian citizenship at birth. The only exceptions concern children born to diplomats, where additional requirements apply.

Most persons born in Canada before 1947 acquired Canadian citizenship on 1 January 1947 if still living at that date.

Section 3(2) of the Current Act states that Canadian citizenship is not granted to a child born in Canada if, at the time of his/her birth, neither of his/her parents was a Canadian citizen or Canadian permanent resident and either parent was a diplomatic or consular officer or other representative or employee of a foreign government in Canada or an employee of such a person. Hanuz mishe nevesht

Canadian citizenship by descent

Every person born outside Canada after 15 February 1977, who has a Canadian parent at the time of birth, is automatically a Canadian citizen by descent. Every such person whose Canadian parent or parents were also not born in Canada and obtained their citizenship at birth by descent (i.e. second generation born abroad) must have successfully applied to maintain their Canadian citizenship before their 28th birthday, that is, if their 28th birthday took place before 17 April 2009. People falling into that category who did not take steps to maintain their citizenship lost their citizenship on that birthday. With Bill C-37[4] coming into effect on 17 April 2009, there is no longer a requirement nor any allowance to apply to maintain citizenship.

Bill C-37[4] came into effect on 17 April 2009, which changed the rules for Canadian citizenship. Individuals can now become Canadian citizens by descent only if one of their parents was either a native-born citizen of Canada or a foreign-born but naturalized citizen of Canada. The new law limits citizenship by descent to one generation born outside Canada.

All individuals born outside Canada but within one generation of the native-born or naturalized citizen parent are automatically recognized as Canadian citizens (retroactive to date of birth or date citizenship was lost).[4] The second generation born abroad, however, are not citizens of Canada at birth. 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.[5].) 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, a category with fewer requirements, which would also take less time than most other immigration application categories.

Under new rules introduced in 2009, foreign nationals 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.

Naturalization as a Canadian citizen

A person who is a permanent resident may apply for Canadian citizenship by naturalization (grant) subject to the following conditions.

The person:

  • is aged 18 years or over
  • is a permanent resident
  • has lived in Canada for a total of three years out of the four years preceding the application for citizenship
  • has knowledge of Canada (as demonstrated by taking a test, which is required as part of the application process, but only if the applicant is between 18 and 54 years of age)
  • is not a subject to any criminal prohibitions
  • is not a war criminal
  • is able to speak English or French well enough to communicate with people [6]

Children aged under 18

The naturalization requirements for children under 18 are different from those for adults.

  • the child should be a permanent resident
  • a parent of the child should be a Canadian citizen or in the process of applying for Canadian citizenship

The residence and other requirements do not normally apply to those aged under 18.

Citizenship ceremonies

Main article: Oath of Citizenship (Canada)

All applicants for Canadian citizenship aged 14 or over must attend a citizenship ceremony as the final stage of their application.

Canadian citizenship by adoption

In May 2006 the Canadian government introduced draft legislation, Bill C-14: An Act to Amend the Citizenship Act (Adoption) which is designed to allow adopted children the right to apply for immediate citizenship. This bill received Royal Assent on 22 June 2007.[7]

Bill C-14 consists of only four clauses. Clause 1 amends section 3 of the Citizenship Act so that adopted children who attain citizenship without first obtaining permanent resident status are Canadian citizens. Clause 2 applies to adopted children who are minors and also to those who are at least 18 years of age; it amends section 5 of the Citizenship Act and provides that, subject to certain conditions, the Minister shall grant citizenship to children who are adopted abroad after 14 February 1977. Clause 2 also has a special provision for adoptions that are under the jurisdiction of Quebec.

Loss of Canadian citizenship

Under current law there is no provision for involuntary loss of Canadian citizenship except:

  • naturalized Canadians can have their citizenship revoked if convicted of fraud in relation to their citizenship application, or their original admission to Canada as an immigrant

Many Canadians lost their citizenship prior to 15 February 1977 through:

  • naturalization in another country
  • long residence overseas (prior to 1967)
  • if a child, based on a parent's loss of Canadian citizenship

See History of Canadian citizenship

A Canadian citizen who holds another nationality may in some cases renounce their Canadian status.

Lost Canadians

In February 2007, the House of Commons Standing Committee on Citizenship and Immigration held hearings on so-called Lost Canadians,[8] who found out recently, on applying for passports, that for various reasons they may not be Canadian citizens as they thought.[9] Don Chapman, a witness before the committee, estimated that 700,000 Canadians have either lost their citizenship or are at risk of having it stripped.[9] However, Citizenship and Immigration Minister Diane Finley said her office has had just 881 calls on the subject. On 19 February 2007, she signed documents granting citizenship to 33 such individuals. Some of the reasons citizenship may have been lost is if the individual was born out of wedlock before 1977, or to a father who took a second citizenship. Another reason is if the child was born outside Canada, and failed to confirm their citizenship before turning 24 or 28. Some of the people affected reside in towns near the southern border, and hence were born in American hospitals.[10] Others, particularly Mennonites, were born to Canadian parents in Mexico or Paraguay.[11] An investigation by the CBC, based on Canadian census data, concluded that the problem could affect an estimated 10,000 to 20,000 individuals currently residing in Canada.[12]

On 29 May 2007, Canadian Minister of Citizenship and Immigration Diane Finley announced her proposal to amend the Citizenship Act. Under the proposal, anyone naturalized in Canada since 1947 would have citizenship even if they lost it under the 1947 Act. Also, anyone born since 1947 outside the country to a Canadian mother or father, in or out of wedlock, would have citizenship if they are the first generation born abroad.[13] Appearing before the Standing Committee on Citizenship and Immigration, Finley asserted that as of 24 May 2007, there were only 285 cases of individuals in Canada whose citizenship status needs to be resolved.[14] Under the proposed legislation, anyone born before 1947 to a Canadian citizen abroad would be dealt with on a case-by-case basis; such individuals would have to apply for a ministerial permit.[15]

Bill C-37, which received Royal Assent on 17 April 2009, amended the Citizenship Act to give Canadian citizenship to those who lost or never had it, due to outdated provisions in existing and former legislation. The law came into effect on 17 April 2009.

Resumption of Canadian citizenship

Former Canadian citizens who lost their citizenship as adults are generally required to obtain landed immigrant (permanent resident) status under normal rules and live in Canada for one year in order to resume Canadian citizenship.

Former Canadians who lost British subject status before 1947 have no specific rights to Canadian citizenship, except in the case of women who lost British subject status on marriage to a foreign man.

Japanese Repatriation

On 22 September 1988, Prime Minister Brian Mulroney agreed to a redress package for Japanese Canadians deported from Canada between 1941 and 1946 (about 4000 in total) and their descendants.

The package authorizes a special grant of Canadian citizenship for any such person. All descendants of deported persons are also eligible for grant of citizenship provided they were living on 22 September 1988, regardless of whether the person actually deported from Canada is still alive.

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. In particular, the interpretation of the 3 year (1,095 day) residence requirement enacted by the 1977 Citizenship Act, which does not define the term "residence" and, further, prohibits an appeal of a Federal Court decision in a citizenship matter to the Federal Court of Appeal or the Supreme Court, has generated considerable judicial controversy.

Over the years 2 principal schools of thought with respect to residence have emerged from the Federal Court.

Early on, in 1978, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re)[16], opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant’s linkages suggest that Canada is his or her home, regardless of any absences from the country.

In Koo (Re)[17], Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. Resolving such a question involves consideration of several factors:

  1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
  2. Where are the applicant's immediate family and dependents (and extended family) resident?
  3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
  4. What is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive?
  5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
  6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

The general principle is that the quality of residence in Canada must be more substantial than elsewhere.

In contrast, a line of jurisprudence flowing from the decision in Pourghasemi (Re)[18] emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time.

In the words of Justice Francis Muldoon:

It is clear that the purpose of paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become "Canadianized." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook... So those who would throw in their lot with Canadians by becoming citizens must first throw in their lot with Canadians by residing among Canadians, in Canada, during three of the preceding four years, in order to Canadianize themselves. It is not something one can do while abroad, for Canadian life and society exist only in Canada and nowhere else.

The co-existence of such disparate, yet equally valid approaches has lead some judges to comment that the citizenship "law is in a sorry state"[19], that "there cannot be two correct interpretations of a statue"[20], that "it does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court"[21] and that "there is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery."[22]

Only in the last year has a relative judicial consensus with respect to decision-making in residence cases emerged. [23][24][25] At present it is held that the Citizenship Judge firstly ascertains whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).

A few of the other 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.[26]

Benner v. Canada (1997). 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).[27] Canada (Attorney General) v. McKenna (C.A.) (1999). As a result of the existing Citizenship Act, adopted children are treated differently from biological children born abroad to Canadian citizens. The Federal Court of Appeal has indicated that distinctions in the law based on "adoptive parentage" violate the equality rights provisions in section 15 of the Canadian Charter of Rights and Freedoms. Under the existing law, moreover, children adopted by Canadian parents who are living abroad and who wish to continue doing so cannot become permanent residents and, therefore, cannot become Canadian citizens. [28]

Taylor v. Minister of Citizenship and Immigration (2006). The federal court ruled 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. The ruling was far-reaching in terms of striking down a number of the loss provisions of the 1947 Citizenship Act based on the retrospective application of the Charter of Rights and Freedoms.[29][30] The Canadian Government launched an appeal in 2006, and on 2 November 2007 the Federal Court of Appeal ruled in favour of the government, ruling that Mr. Taylor is not a Canadian citizen based on the 1947 Citizenship Act.[31] However, on 24 January 2008, The Honourable Diane Finley, Minister of Citizenship and Immigration, gave him a special grant of citizenship under a section of the Citizenship Act which permits such action in special circumstances.[32]

Rights and responsibilities of citizens

According to Citizenship and Immigration Canada, citizens are:

  • Entitled to enjoy the rights guaranteed by the Canadian Charter of Rights and Freedoms (all persons present in Canada have these rights, regardless of citizenship).
  • Able to vote in political elections upon reaching the age of 18 (provided they are not absent from Canada for more than 5 years and intend to resume residency in Canada).
  • Able to run for political office upon reaching the age of 18.
  • Able to obtain a Canadian passport.
  • Able to prevent risk of getting deported from Canada (if the subject born outside Canada, but is naturalized).
  • Able to work for the Federal government (where citizenship is usually required/preferred).
  • Allowed to live outside Canada indefinitely while retaining the right to return.
  • Able to pass on Canadian citizenship to children born outside Canada (to the first generation only).

Citizens are responsible for:

  • Serving on jury when reaching the age of majority, and if selected.
  • Obeying Canada's laws.
  • Respecting the rights and freedoms of others.
  • Helping others in the community.
  • Caring for and protecting the Canadian heritage and environment.
  • Eliminating discrimination and injustice.

Proof of Canadian Citizenship Document

A citizenship certificate is issued when a permanent resident has sworn the oath of citizenship and has thus become a new Canadian citizen. It is also issued at the request of any Canadian citizen but could take many months to be issued. [33] However, it is illegal to be in possession of more than one certificate of citizenship or naturalization.[34]

Commonwealth Citizenship

Under United Kingdom law, Canadians are Commonwealth citizens and hence are entitled to certain rights in the UK:

Commonwealth citizenship also imparts rights within other Commonwealth realms although many of these have now been repealed.

See also

References

  1. ^ "Forging Our Legacy: Canadian Citizenship And Immigration, 1900–1977 – The growth of Canadian nationalism".
  2. ^ "Forging Our Legacy: Canadian Citizenship And Immigration, 1900–1977".
  3. ^ "Legislation to restore citizenship to lost Canadians passes". Press release. Ottawa: Citizenship and Immigration Canada. 16 April 2008. Retrieved 5 June 2009.
  4. ^ a b c "Learn about the new law".
  5. ^ http://www.canada.com/vancouversun/news/editorial/story.html?id=c3a5560d-5170-4d4a-a318-a8675e759171
  6. ^ "Becoming a Canadian citizen: Who can apply". Citizenship and Immigration Canada. 16 March 2010. Retrieved 2 November 2010.
  7. ^ "Bill C-14: An Act to amend the Citizenship Act (adoption) (LS-528E)". Parl.gc.ca. Retrieved 2010-07-27.
  8. ^ CIMM - Loss of Canadian Citizenship for the years 1947, 1977 and 2007 - Committees of the House of Commons
  9. ^ a b http://www.cbc.ca/cp/national/070226/n022659A.html [dead link]
  10. ^ "Manitoba 'border babies' officially become Canadians". CBC News. 20 February 2007.
  11. ^ The hunt for lost Canadians | Macleans.ca - Canada - Features
  12. ^ "450 'lost Canadians' caught in passport glitch: Finley". CBC News. 19 February 2007.
  13. ^ "Statement from the Minister of Citizenship and Immigration on Proposed Changes to the Citizenship Act" (Press release). CIC Canada. 29 May 2007. Retrieved 30 May 2007.
  14. ^ Finley, Diane (29 May 2007). "Notes for an Address by The Honourable Diane Finley, P.C., M.P. Standing Committee on Citizenship and Immigration "Main Estimates and Loss of Citizenship"". Ottawa, Ontario. Retrieved 5 June 2009.
  15. ^ CTV.ca News Staff (29 May 2007). "Citizenship limbo to end for war bride children". Retrieved 30 May 2007.
  16. ^ Papadogiorgakis (Re) [1978] 2 F.C. 208
  17. ^ "Koo (Re)". CanLII. 1992-12-03. Retrieved 2010-11-11.
  18. ^ Pourghasemi (Re) (F.C.T.D.) (1993), 60 F.T.R.122
  19. ^ "Mann v. Canada". Federal Court of Canada. 2003-12-16. Retrieved 2010-11-11.
  20. ^ "Chen v. Canada". Federal Court of Canada. 2001-12-29. Retrieved 2010-11-11.
  21. ^ "Collier v. Canada". Federal Court of Canada. 2006-11-30. Retrieved 2010-11-11.
  22. ^ "CP - 5 Residence". Citizenship and Immigration Canada. 2010-06-11. {{cite web}}: |access-date= requires |url= (help); Missing or empty |url= (help); Text "http://www.cic.gc.ca/english/resources/manuals/cp/cp05-eng.pdf" ignored (help)
  23. ^ "Canada v. Salim". Federal Court of Canada. 2006-11-30. Retrieved 2010-11-11.
  24. ^ "Canada v. Elzubair". Federal Court of Canada. 2010-03-16. Retrieved 2010-11-11.
  25. ^ "Canada v. Takla". Federal Court of Canada. 2009-11-02. Retrieved 2010-11-11.
  26. ^ [1][dead link]
  27. ^ "Supreme Court of Canada - Decisions - Benner v. Canada (Secretary of State)". Csc.lexum.umontreal.ca. 1997-09-23. Retrieved 2010-07-27.
  28. ^ "Federal Courts Reports". Reports.fja.gc.ca. 2010-05-12. Retrieved 2010-07-27.
  29. ^ "Federal Court - Taylor v. Canada (Minister of Citizenship and Immigration)". Decisions.fct-cf.gc.ca. Retrieved 2010-07-27.
  30. ^ "Press releases, newspaper coverage, media, news about Canadian War Brides of World War Two, births, weddings, marriages to Canadian servicemen". Canadianwarbrides.com. Retrieved 2010-07-27.
  31. ^ "Joe Taylor, Citizenship, passports, news about Canadian War Brides of World War Two, births, weddings, marriages to Canadian servicemen". Canadianwarbrides.com. Retrieved 2010-07-27.
  32. ^ "News Release - Minister Finley welcomes Joe Taylor as Canadian". Cic.gc.ca. 2008-01-24. Retrieved 2010-07-27.
  33. ^ Processing Times for Citizenship Certificates
  34. ^ Application for Citizenship Certificate
  35. ^ [2][dead link]
Retrieved from "https://en.wikipedia.org/w/index.php?title=Canadian_nationality_law&oldid=399171340"