Operational Bulletin 188 – April 9, 2010

Use of Section 25(1) of the Immigration and Refugee Protection Act on sponsored applications of dependent children affected by the C-37 first generation limitation on citizenship by descent

Issue

This operational bulletin provides guidelines on the use of section 25 of the Immigration and Refugee Protection Act (IRPA) when processing sponsored applications for permanent resident visas from dependent children of Canadian citizens who are affected by the C-37 first generation limitation on citizenship by descent.

These guidelines were developed to assist officers in applying the provisions of the Act and the Regulations; they are to be used as a tool and, as such, cannot compel or require officers to reach a particular decision. Rather, they are intended to encourage officers to consider factors either in favour of, or against the granting of an exemption pursuant to section 25 of IRPA. As decision-makers, officers are ultimately free to consider those factors they deem relevant.

Background

Bill C-37, An Act to Amend the Citizenship Act, came into force on April 17, 2009. This act limits citizenship by descent to the first generation born or adopted outside of Canada with certain exceptions.

The exceptions include children born or adopted outside Canada in the second or subsequent generation, by a Canadian parent who is working outside of Canada for the Canadian armed forces, the federal public administration or the public service of a province, other than as a locally engaged person.

Statelessness

Stateless persons are persons who are not recognized as a national by any state under its domestic law.

A child born outside Canada to a Canadian parent on or after April 17, 2009, could be stateless if the child has neither acquired a citizenship by descent, nor by birth on soil because of the laws of the country of birth.

Current requirements under IRPA

The child of a Canadian citizen, who does not acquire citizenship by descent, may be sponsored for permanent residence in Canada as a member of the family class. Section 70 of the Immigration and Refugee Protection Regulations (IRPR) sets out the requirements which must be met for a permanent resident visa to be issued to a foreign national. A visa officer must be satisfied that a sponsored applicant for a permanent resident visa is not inadmissible and meets the requirements of the Act and the Regulations , before issuing a permanent resident visa. These requirements include the requirement that a sponsorship undertaking in respect of the applicant be in effect [R120(a)] and that the applicant’s sponsor reside in Canada [R130(1)(b)].

Subsection 130(2) of the Regulations provides for an exception with respect to the residence requirement, where the sponsor is a Canadian citizen who is sponsoring a spouse, partner or dependent child. This provision permits Canadian citizens who are not residing in Canada to sponsor their family members if they “will reside in Canada when the applicant becomes a permanent resident.”

This residency requirement may be an obstacle for dependent children sponsored by Canadian parents who reside outside Canada. While these sponsors may have strong ties to Canada and may clearly plan to reside in Canada in the future, they may not be in a position to do so when the applicant becomes a permanent resident. If the sponsor does not intend to establish or re-establish residence in Canada when the applicant becomes a permanent resident, neither section 130 nor paragraph 120(a) of the Regulations will be satisfied.

These applicants may also have difficulty meeting the following inter-related requirements:

• to be coming to Canada to establish permanent residence for a permanent resident visa to be issued [R70(1)(b)];
• to hold a passport or travel document issued by the applicant’s country of citizenship or nationality, or an identity or travel document issued by a country to non-national residents who are stateless [R50(1)].

Use of section 25 in IRPA

The discretionary nature of A25 permits the Minister and delegates, on their own initiative, to examine applicants’ circumstances and to grant exemptions from criteria or obligations of the Act when justified by humanitarian and compassionate (H&C) considerations. If foreign nationals request examination of their circumstances, the Minister and delegates may also grant an exemption if justified by H&C considerations.

When examining applicants’ circumstances, officers may consider certain factors to be either positive or negative considerations in their assessment of whether an exemption is justified on H&C grounds. The following are examples of certain relevant factors that may be considered; note that this is not an exhaustive list and should not be used to determine the final outcome of the application. Officers must consider all relevant factors in an application and arrive at a decision based on the merits of the individual case:

Positive considerations:

• the dependent child is stateless or the child’s citizenship would seriously limit the family’s ability to travel because of more restrictive requirements for visas, etc;
• the parents have significant ties to Canada; and
• the parents have demonstrated that they will reside in Canada, albeit not immediately when the applicant becomes a permanent resident.

Examples:

• Child is born while parents are working overseas and parents will return to reside within a specific time period (e.g., at the end of a 5 year employment contract) and the child’s lack of status would affect the parents status (e.g., parents on work permits in Bermuda) or the child’s ability to travel (e.g., child cannot travel with the family because they do not possess a passport).
• Child is born while parents are working overseas and parents will return to reside within a specific time period; the child is unable to travel freely while the parents remain outside Canada (e.g., different passport with different/more restrictive visa requirements than the rest of the family).

Negative considerations:

• the parents do not have concrete plans to return to Canada;
• the statelessness of the dependent child does not create any significant problems for the child or the parents during the period before they plan to reside in Canada.

Example:

• The child is born to parents who are employed permanently outside of Canada; they have no concrete plans to return and have not demonstrated significant ties to Canada. (e.g., the parents have lived abroad for an extended period of time and have permanently established themselves outside Canada).

IRPA also requires that the best interest of any child directly affected by a decision under A25(1) be considered. For more information on how to consider the best interest of the child, please consult manual chapters OP 4 and IP 5.

Sponsors who will reside in Quebec

This bulletin was drafted in consultation with the Ministère de l’Immigration, de la Francisation et de l’Intégration (MIFI). It does not change existing procedures related to provincial requirements for processing sponsorship applications from persons outside of Canada who will reside in Quebec. The MIFI will determine if an engagement for the sponsored child can be approved.

Adoptions

During consultations with the MIFI, concerns were also raised about children who have been adopted outside Canada. Quebec’s role, and indeed the role of all provinces and territories in protecting the best interests of adopted children is reflected in paragraphs R117(3)(e) and (f). The specific manner in which these regulatory requirements are met ranges from approval of foreign adoptions by a tribunal (in Quebec) to notification from the province that they agree to, do not object to or have not been involved in the adoption process (please see sections 5.5 to 5.7 of OP 3).

Conceivably, some sponsors might establish residence outside of Canada for the express purpose of circumventing these requirements. It is unlikely, in such cases, that the positive considerations outlined above would be evident. Nevertheless, given the particularly sensitive nature of such cases, officers should inform the Operational Management and Coordination (OMC) Branch at NHQ of any requests for H&C consideration involving adopted children. This will ensure that officers have all the required information to properly exercise their authority pursuant to subsection A25(1).

Other related provisions

A stateless individual may also be issued a Temporary Resident Permit and a single journey travel document to enable them to enter Canada and meet the requirements for a grant of citizenship under subsection 5(5) of the Citizenship Act. More information on this can be found in Operational Bulletin (OB) 189 – Issuing of Temporary Resident Permits for Statelessness.

Applications based on H&C grounds from persons in Canada should be processed according to the instructions in IP 5.

Applying for citizenship

There are no residence requirements for a grant of citizenship to an applicant under the age of 18. Therefore, an application for citizenship can be made on behalf of the child immediately after permanent residence is granted. Children must meet the usual requirements for a minor grant of citizenship. A request can be made for urgent processing of the application and, if justified, the Case Processing Centre in Sydney will process the application on a priority basis.

Applying for a Canadian passport

Once an applicant receives a Canadian citizenship certificate, they can submit an application for a Canadian passport. Standard processing times for a Canadian passport vary between 2 to 4 weeks, depending on the manner in which the application is submitted. However, Passport Canada provides urgent and express processing, within 24 hours or 2-9 business days respectively, under certain circumstances. An additional fee is required of applicants who request urgent or express service.

Further information on processing times and fees for urgent and express applications is available at the Passport Canada website:

www.ppt.gc.ca/cdn/urgent.aspx?lang=eng&region=Canada#urgent

Additional information and ongoing updates can be found on the CIC website:

www.cic.gc.ca/english/citizenship/rules_2009.asp

For more information on Bill C-37, please see OB 102:

www.cic.gc.ca/english/resources/manuals/bulletins/2009/ob102.asp

Link to citizenship amendments:

www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3437373&file=4