ARCHIVED – Operational Bulletins 031 – May 28, 2007

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Interim Instructions on Handling Cases on Hold Pending the Taylor Appeal

This Operational Bulletin has expired.

Background

This operational bulletin (OB) replaces OB 026 of the same name and incorporates the 2007 Citizenship Fees Remission Order. This OB should be read in conjunction with OB 031 “Handling Special Cases of Certain People Living in Canada Without Status” and OB 032 “Remission of Citizenship Fees”.

On September 1, 2006, Justice Luc Martineau delivered his reasons for decision in the Joseph Taylor case (Taylor v. Canada (Minister of Citizenship and Immigration) (2006 FC 1053). In his decision, Justice Martineau declared that Mr. Taylor is a Canadian citizen and he directed the Minister to issue a citizenship certificate to Mr. Taylor.

Mr. Taylor was born in England in 1944 to a Canadian serviceman father and an English mother. His parents subsequently married, and in 1946 Mr. Taylor’s mother brought him to Canada to live with his father. He and his mother came to Canada pursuant to an Order in Council aimed at facilitating the immigration of war brides and their children to Canada. A few months after their arrival, and before the first Canadian Citizenship Act came into force on January 1, 1947, the marriage failed and the mother and her son left Canada and returned to England to live.

In 2003, Mr. Taylor applied for a citizenship certificate (proof). The citizenship officer refused to issue a citizenship certificate because Mr. Taylor was born outside of Canada, out of wedlock, to a mother who was not born in Canada and was not a resident in Canada at the time of Mr. Taylor’s birth. Mr. Taylor launched a judicial review of the officer’s decision. On September 1, 2006, the Federal Court allowed the judicial review application.

On September 29, 2006, the Minister of Citizenship and Immigration appealed the Federal Court’s decision to allow the judicial review application of Mr. Taylor.

On December 21, 2006, the Federal Court of Appeal granted the Minister’s motion requesting that the Order of Justice Martineau be stayed pending the determination of the appeal. Consequently, all citizenship applications which would have been rejected prior to the decision of Martineau are now on hold until the final outcome of the appeal is known.

Current Situation

On September 11, 2006, interim instructions were sent to Citizenship and Immigration Canada staff to stop rejecting applications that would be affected by the Taylor decision while the department analyzed the impact of this decision. Due to the recent granting of the stay motion by the Federal Court of Appeal, these interim instructions are sanctioned by law and must continue to be followed.

By Order of the Court and until further notice, do not make any negative decisions or issue any refusal letters for:

  1. proof applications where the person ceased to be a citizen due to an automatic loss provision under previous citizenship legislation. (This includes applications that are dependent upon a parent who ceased to be a citizen due to an automatic loss provision under previous citizenship legislation, prior to the applicant’s birth. This does not include persons who ceased to be citizens due to revocation or renunciation. Persons who ceased because of revocation or renunciation may be issued a refusal letter; however before the letter is sent, evaluate if the client should be considered for a facilitated* grant. (See Operational Bulletin 031 Handling Special Cases of Certain People Living in Canada without Status.)
  2. proof applications where the decision is based on whether or not an individual (applicant, parent or grandparent of applicant) was born out of wedlock.
  3. proof applications where the claim is based on paragraph 3(1)(e) and subsection 4(3) of the current Act received after the expiry of the transitional provisions.
  4. grant applications under paragraph 5(2)(b) of the current Act even if the application was received after the expiry of the transitional provisions.
  5. retention applications where the decision is based on whether or not a parent or grandparent of the applicant was born in/out of wedlock. Do not refer a retention application to a citizenship judge for decision if there are indications that the application may be refused because the parent or grandparent of the applicant was born in/out of wedlock. (This means that retention applications can only be refused if the applicant was born after February 15, 1977, and failed to retain before their 28th birthday, or if the applicant does not meet the residence or substantial connection criteria. However, before the letter is sent, evaluate if the client should be considered for a facilitated* grant. (See Operational Bulletin 031 Handling Special Cases of Certain People Living in Canada without Status.)
  6. resumption applications under the current Act. Do not refer any resumption applications to a citizenship judge for decision if there are indications that the application may be refused.

Also, do not issue any recall letters where the decision is based on whether or not an individual (applicant, parent or grandparent of applicant) was born in/out of wedlock.

*Note: In the context of this bulletin, a facilitated grant could mean urgent processing of a 5(1) grant of citizenship or an 11(1) resumption of citizenship application, or inviting the client to submit an application for a discretionary grant under subsection 5(4) of the Citizenship Act.

Procedures – CPC Sydney

When an officer, after full analysis, determines that an application would have been refused prior to the decision of the Federal Court in Taylor, the officer must mail a letter notifying the client that the case is on hold until the final outcome of the Taylor appeal (see Annexes 1 and 2).

Before this notification letter is mailed, the officer evaluates the application using the criteria found in Operational Bulletin 031 Handling Special Cases of Certain People Living in Canada without Status.

If the client meets the criteria of a regular 5(1) grant or an 11(1) resumption application, the officer sends the notification letter in Annex 1, tailored to the client’s personal circumstance. The officer provides the client with sufficient information so that the client’s application may be processed on a priority basis.

If it appears that the client could be appropriately dealt with under subsection 5(4) of the Citizenship Act, the complete file is sent to Case Management Branch.

If the client does not meet the criteria for citizenship under a different provision of the Act and if it does not appear that the client could be appropriately dealt with under subsection 5(4) of the Citizenship Act, the officer sends the notification letter in Annex 2.

Procedures – Case Management Branch

For clients who could be appropriately dealt with under subsection 5(4) of the Citizenship Act, the case analyst will send the notification letter in Annex 2 to the client.

However, before the notification letter is sent, the case analyst will contact the client by phone to advise the client that they will be receiving a letter shortly, to reassure the client that CIC will be providing them with personalized counselling, and to advise the client of the possibility of applying for citizenship using the discretionary grant under 5(4).

The case analyst will also advise the client that a fact sheet (Annex 4) on the discretionary grant will be sent to them separately. The case analyst will give the client their name and a direct phone number so that the client can contact the case analyst directly after the client has had time to consider options. The case analyst should use the script in Annex 3 as a guideline for the initial call.

The case analyst provides the client with sufficient information so that if the client chooses to submit a 5(4) application, the client’s application will be processed urgently.

Further instructions

Further instructions will follow when a final determination has been made on the Taylor appeal.

Questions

Questions about this operational bulletin should be sent to the Citizenship Program Unit, Operational Management and Coordination Branch at Nat-Cit-Operations@cic.gc.ca.


ANNEX 1

(Office)

Date
Client ID:

Client

Dear (Client):

I am writing to notify you that your application for citizenship is currently on hold.

On September 1, 2006, Justice Martineau of the Federal Court issued his judgment in the matter of Taylor v. Minister of Citizenship and Immigration. The decision in Taylor changed the law as previously understood and applied. As a result, the Minister of Citizenship and Immigration is appealing that decision.

The Minister applied to the Federal Court of Appeal to suspend the processing of citizenship applications (stop making refusal decisions) affected by the decision in Taylor while the appeal takes place. This request has been granted.

Your application for citizenship has been identified as one affected by the Taylor decision. In other words, your application for citizenship would normally be refused but for the reasons of the decision of Justice Martineau.

In accordance with the Federal Court of Appeal Order suspending processing in a case such as yours, I am advising you that we will not be making a decision on your application until the Minister’s appeal of the Taylor decision is finally determined.

However, in making the assessment of your application, we noticed that you may meet the requirements for citizenship under a different provision of the Citizenship Act.

As you currently have a citizenship application on hold, your options are the following:

  1. Wait for the final outcome of the Taylor appeal. Depending on the outcome, you may be declared a citizen from birth (or you may still be a citizen) or you may not be a citizen.
  2. If you do not wish to await the outcome of the Taylor appeal, submit an Application for Canadian Citizenship (or submit an Application to Resume Canadian Citizenship).

Should you wish to pursue the second option, I enclose an Application for Canadian Citizenship (or an Application to Resume Canadian Citizenship). Please note that as this application is a grant of citizenship, you will become a citizen only if you meet all the requirements of section 5(1) (or section 11(1) as the case may be) and you have taken the oath of citizenship. The grant of citizenship is not retroactive to your birth. As such, only your children born after you acquire citizenship will automatically be citizens if they are born outside Canada.

Should you choose to apply, please complete and return the enclosed application, with requested documents and fee, within ninety (90) days of the date of this letter. Please use the enclosed envelope (or please send to the attention of…) so that we may process your application promptly. An application fee of $200 (or $100) is required. However, CIC will apply your previously submitted fee of $75 to this balance. Therefore please submit $125 (or $25) with your application.

Should you require additional information, please do not hesitate to contact me at… General information can also be found on our website at www.cic.gc.ca or by contacting our Call Centre at 1-888-242-2100.

Sincerely,

Citizenship Officer


ANNEX 2

(Office)

Date
Client ID:

Client

Dear (Client):

I am writing to notify you that your application for citizenship is currently on hold.

On September 1, 2006, Justice Martineau of the Federal Court issued his judgment in the matter of Taylor v. Minister of Citizenship and Immigration. The decision in Taylor changed the law as previously understood and applied. As a result, the Minister of Citizenship and Immigration is appealing that decision.

The Minister applied to the Federal Court of Appeal to suspend the processing of citizenship applications (stop making refusal decisions) affected by the decision in Taylor while the appeal takes place. This request has been granted.

Your application for citizenship has been identified as one affected by the Taylor decision. In other words, your application for citizenship would normally be refused but for the reasons of the decision of Justice Martineau.

In accordance with the Federal Court of Appeal Order suspending processing in a case such as yours, I am advising you that we will not be making a decision on your application until the Minister’s appeal of the Taylor decision is finally determined.

If you are in Canada without status, you may wish to consider other means to obtain status in Canada, such as an application for permanent residence. Please consult our website at www.cic.gc.ca for more information or contact our Call Centre at 1-888-242-2100.

Sincerely,

Citizenship Officer


ANNEX 3: SCRIPTS FOR CASE ANALYSTS – INITIAL CALL – TAYLOR AFFECTED CASES INVITING 5(4)

Good morning/Good afternoon,

My name is _____________ and I am calling on behalf of the Department of Citizenship and Immigration Canada.

I am calling you in regards to your citizenship application. I wanted you to be aware that you will be receiving a letter soon. That letter says that we cannot make a decision on your application right now and explains why.

When you receive that letter, if you don’t understand it or have other questions, please do not hesitate to contact me. I will give you my phone number so that if you have questions later, you can call me back.

Basically the letter says that we have evaluated your application and we have determined that you are not a citizen (or have ceased to be a citizen) under the law as we understand it, but that because of a court order in the Taylor appeal, we cannot make that negative decision.

Once you receive that letter you will have two options.

  1. Wait for the final outcome of the Taylor appeal. Depending on the outcome, you may be declared a citizen from birth (or you may still be a citizen) or you may not be a citizen.
  2. If you do not wish to await the outcome of the Taylor appeal, you may wish to apply for a discretionary grant of citizenship.

I will be sending you a fact sheet that explains what the discretionary grant of citizenship is. I will also be sending you an application form just in case you decide to apply. Whether you decide to wait or apply for the discretionary grant, we will advise you of the outcome of your current application when the court case has been finalized.

I know you have a lot of things to think about now. Like I mentioned previously you will receive a letter, then a fact sheet and application. If you have any additional questions, please do not hesitate to give me a call.

Good day.

If client has questions on the Taylor appeal

The reason why we are not presently making a definite determination of your citizenship status is due to a recent decision of the Federal Court in Joseph Taylor v. The Minister of Citizenship and Immigration (T-1024-05). In part, the court decided it did not agree with the automatic loss provisions in previous citizenship legislation. However the decision is so broad, it may have an impact on many different types of applications including yours. As this court decision is being appealed, a stay has been issued by the Federal Court of Appeal (A-417-06). This stay means that Citizenship and Immigration Canada cannot make any negative decisions on current applications, such as yours, or on any similar applications received in the future, until a final determination on the appeal is made.

If client asks how long the appeal will take

I do not know how long the appeal process will take.

If client has questions on the discretionary grant

Although you are not a permanent resident, which is a requirement for a grant of citizenship, there is a provision in the law that addresses exceptional cases. Under subsection 5(4) of the Citizenship Act, the Governor in Council (GIC) has the discretionary authority to direct the Minister of Citizenship and Immigration to grant citizenship to any person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada. The GIC is a committee of Cabinet Ministers and has authority under the Act for making decisions in these types of cases. Since the decision to grant citizenship rests with the GIC, there would be no guarantee on the outcome of your application.

ANNEX 4: FACT SHEET – DISCRETIONARY GRANT OF CITIZENSHIP UNDER SUBSECTION 5(4) OF THE CITIZENSHIP ACT

What is a discretionary grant of citizenship?

In general, in order to obtain citizenship, one of the requirements is that a person must be a permanent resident of Canada and must have lived in Canada for at least 3 years.

There is however a provision in the Citizenship Act that addresses exceptional cases. Under subsection 5(4) of the Citizenship Act, the Governor in Council (GIC) has the discretionary authority to direct the Minister of Citizenship and Immigration to grant citizenship to any person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada.

The GIC is a committee of Cabinet Ministers and has authority under the Act for making decisions in these types of cases. Since the decision to grant citizenship rests with the GIC, there is no guarantee that an application under subsection 5(4) will be accepted. Citizenship is granted under this provision in exceptional cases only.

How do I apply?

If you were never a Canadian citizen, you will need to complete an “Application for Canadian Citizenship – Adults”. Since you are not a permanent resident, you may leave questions 7(a) and 7(g) of the application blank as they do not apply to you.

If you were a Canadian citizen in the past (ceased to be a citizen), you will need to complete an “Application to Resume Canadian Citizenship”.

Also required for your application are the following documents:

  1. 2 photos and identity documents as specified in the instructions of the application form (except proof of permanent resident status);
  2. a letter and supporting documents (if applicable) explaining the reasons you would like your application for a discretionary grant to be considered by the Minister and the GIC.

The total fee for a discretionary grant is $200 if you were never a citizen, or $100 if you ceased to be a citizen. However, you may be exempt from paying this fee under the 2007 Citizenship Fees Remission Order (see below for more information). If it is determined that you are exempt from paying this fee, the $75 processing fee you previously submitted will be refunded to you if your application for a discretionary grant is approved and you obtain citizenship. If it is determined that you are not exempt from paying this fee, the $75 processing fee you previously submitted will be allocated to your new application, leaving a balance payable of $125 (or $25 if you ceased to be a citizen). We will advise you if additional fees are required.

Next Steps

If you choose to apply under this provision, please complete and return the enclosed application, with requested documents and fee. Please write on the envelope: “Attention …” so that we process your application promptly.

After the application has been received, it will be reviewed and a report to the Minister of Citizenship and Immigration will be prepared. The Minister may make a favourable or unfavourable recommendation to the GIC. If you are not subject to any security or criminal prohibitions in Canada (as outlined in the application kit) and your application is approved, you will be invited to a citizenship ceremony to take the oath of citizenship which is the final step in becoming a Canadian citizen. Provided all of the above, you would then receive a citizenship certificate at the ceremony.

Please note that as this is a grant, you will become a citizen once you have taken the oath. If you have children who are not Canadian citizens and would like them to become Canadian at the same time as you, you will also have to submit an application for each child (includes adult children).

2007 Citizenship Fees Remission Order

The 2007 Citizenship Fees Remission Order provides the authority for Citizenship and Immigration Canada to remit citizenship grant fees, right to be a citizen fees and resumption fees, either in the form of a refund for fees paid or exemption for fees that have not been paid, in respect of applications from individuals who meet the specified conditions. A copy of the Citizenship Fees Remission Order can be viewed on the Treasury Board’s website at http://www.gazette.gc.ca/archives/p2/2007/
2007-04-04/html/si-tr37-eng.html

Note: The fee for an adult to acquire citizenship (grant) is $200 total which consists of $100 processing fee and $100 right to be a citizen fee. The total fee to resume citizenship is $100.

To qualify under the Remission Order, you must meet all of the following conditions:

  1. have been granted, or is under consideration to be granted, citizenship under subsection 5(4) of the Citizenship Act;
  2. have had an application for grant or resumption of citizenship in process on January 24, 2007, or have submitted an application on or after that date;
  3. have had a reasonable but mistaken belief that you were a Canadian citizen;
  4. have lived in Canada most of your life; and
  5. be currently living in Canada.

You cannot qualify under the Remission Order if you:

  1. are a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
  2. are prohibited from being granted citizenship under section 20 or 22 of the Citizenship Act; or
  3. have renounced your citizenship under the Canadian Citizenship Act (as it was in force from 1947 until 1977) or the Citizenship Act.
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