Operational Bulletin 189 – April 9, 2010

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

Access to Grant of Citizenship for Stateless Persons Impacted by Bill C-37

Issue

This Operational Bulletin (OB) describes how to access a grant of citizenship for stateless persons impacted by Bill C-37 through the issuance of a temporary resident permit (TRP).

Background

Bill C-37, an Act to amend theCitizenship Act, S.C. 2008, c. 14, came into force on April 17, 2009. This Act limits citizenship by descent to the first generation born or adopted outside Canada to a Canadian parent. Details on the first generation born abroad limitation, including exceptions, are contained in OB 102 – Implementation of Bill C-37 an Act to Amend the Citizenship Act.

As a result of this limitation it is possible that children born on or after April 17, 2009 to a Canadian parent may be stateless. In order to provide an additional route to citizenship for the stateless children of Canadians (in addition to the family class sponsorship route below), Bill C-37 contains a new provision under subsection 5(5) for a grant of citizenship for persons born outside Canada to a Canadian parent in the second or subsequent generation who are, and who have always been, stateless. Applicants for this grant must meet certain requirements including that they be less than 23 years of age and that they must have resided in Canada for at least three years during the four years immediately preceding the date of application.

Children born outside Canada to a Canadian parent in the second or subsequent generation may be eligible to be sponsored for permanent residence in the family class under provisions in the Immigration and Refugee Protection Act (IRPA) andRegulations (IRPR). Family class sponsorship should be encouraged whenever possible. Once permanent residence has been granted, their application for citizenship under a regular grant may be submitted without any waiting period if they are under 18 years of age (there are no residence requirements for minors).

Please see Operational Bulletin 188 – Use of Section 25(1) of IRPA on sponsored applications of dependent children affected by the C-37 first generation limitation on citizenship by descent – for further information.

Because there is no waiting period to apply for citizenship under a regular grant for applicants under 18 years old, family class sponsorship should be encouraged as the preferred option. However, there may be situations where family class sponsorship is not an option for a stateless child born outside Canada to a Canadian citizen parent in the second or subsequent generation. For example, the sponsor may not meet the eligibility requirements to sponsor, the Canadian parent may be deceased, or the applicant may not meet the admissibility requirements for permanent residence. Please refer to IP 2 and R133 for more details on sponsorship requirements.

For a stateless person, the issuance of a TRP may be an alternative that will allow them to enter Canada in order to meet the residence requirements of the new statelessness provision in CA 5(5).

Processing

Processing clients who are intending to access the 5(5) grant of citizenship for stateless persons will involve two stages. This OB outlines the processing required to determine if the client may be able to access the 5(5) grant in the first stage as well as any considerations for TRP processing in the second stage.

The first stage of processing includes:

  • presenting evidence of statelessness;
  • presenting evidence of a Canadian citizen birth parent;
  • considering the residence requirement of the grant and the age of the applicant; and
  • reviewing the prohibitions to a grant under 5(5).

Officers may consider creating a miscellaneous “G” file in CAIPS to record the events of this first stage of processing.

The second stage comprises TRP processing, and includes the collection of the cost-recovery fee. The fee will not be refunded if the TRP is refused.

Eligibility

The onus is on the client to provide sufficient evidence to satisfy the visa officer, on a balance of probabilities that they are, and have always been, stateless.

Statelessness refers to the status of an individual who is not recognized as a national by any state under its domestic law. Persons born to a Canadian parent may be stateless at birth because they were born outside of Canada on or after the coming into force of the C-37 amendments to the Citizenship Act (April 17, 2009) to a Canadian parent who was also born outside Canada to a Canadian parent and they do not acquire citizenship by descent due to the laws of other countries of which their parents are also citizens or they do not acquire citizenship of the country of their birth because of the laws of that country.

Examples of documentary evidence of statelessness may include travel documents issued to stateless persons by other countries or international organizations such as the International Committee of the Red Cross or a No Record letter or similar document issued by the appropriate authorities of the country of the applicant’s birth and other countries where the applicant has lived for more than five consecutive years.

A person born stateless to a Canadian parent may be in a vulnerable situation and may not have access to documentary evidence to satisfy the officer, on a balance of probabilities that they are, and have always been, stateless. In situations where the above documentary evidence is not available, secondary evidence may be considered acceptable. For example, legal statutes, case law, research from recognized academic authorities or other reliable and credible evidence.

Canadian citizen birth parent

The onus is on the client to file satisfactory evidence of their Canadian parent’s citizenship status, which is usually done by presenting acceptable documentary evidence.  If the client’s parent has no evidence of citizenship, the officer may suggest that the client’s parent be encouraged to file a proof application through the Consular office or alternatively that the client makes an application for a search of records under the Act. It should be noted that a search of records can only confirm if a citizenship certificate was issued in the past to an individual; it is not proof of citizenship and a search that results in a “no record” does not mean that the individual is not a citizen.

The client may present to the officer any one of the following documents which are recognized by Citizenship and Immigration Canada as acceptable evidence of the Canadian parent’s Canadian citizenship status:

  • provincial or territorial birth certificate – for citizens born in Canada*;
  • citizenship certificate;
  • Registration of Birth Abroad certificate – issued between January 1, 1947 and February 14, 1977;
  • certificate of retention – issued by Canadian citizenship authorities between January 1, 1947 and February 14, 1977; or
  • naturalization certificate – issued before January 1, 1947.

* Note: Individuals born in Canada where neither parent is a citizen or permanent resident and at least one parent is in Canada with diplomatic status are not citizens by birth. Therefore, individuals in this situation cannot use a birth certificate as proof of citizenship.

While the above documents all constitute proof of citizenship, an applicant presenting as proof of their Canadian parent’s citizenship a Canadian provincial or territorial birth certificate would not be stateless but would likely be a Canadian citizen by descent. In that instance, the client’s parent should be encouraged to submit an application for a citizenship certificate (proof of citizenship) for their child through the Consular office.

If the citizenship document has been lost or destroyed other evidence of the parent's citizenship, such as a Canadian passport, may be accepted. 

If… Then…
CPC-Sydney confirms at least one of the child’s natural parents was born in Canada or was naturalized/granted citizenship… the child is likely a citizen. The visa section will refer the parent/applicant to the Consular office to file an application for a citizenship certificate (proof of citizenship) for the child.
CPC-Sydney confirms that the records indicate that the client’s natural parent(s) is a citizen by descent or received a grant of citizenship under 5.1 (adoption provision)… the visa officer will know that the client was not a Canadian citizen when the client was born ( unless at least one of the client’s natural parents is a Canadian who was working outside Canada as an employee of the Canadian government, other than as a locally-engaged employee, an employee of a Canadian province or territory, or was serving outside Canada with the Canadian Forces).
CPC-Sydney confirms that the parent was not a citizen when the client was born (for example, if the parent lost citizenship because he/she failed to retain citizenship)… the client is not eligible for the stateless grant.
CPC-Sydney cannot confirm that the parent was a citizen when the client was born… the visa officer will direct the client’s parent to the consular office to file a proof application.

Residence requirement and age

In order to be eligible for a grant of citizenship under 5(5) a client must be born outside Canada on or after April 17, 2009. In addition, the client must be less than 23 years of age at the time of application for the grant and have resided in Canada for at least three years during the four-year period immediately before the date of application for a grant. Careful consideration should be given before issuing TRPs to clients who will not be able to meet the residence requirement prior to their 23 rd birthday and each case must be assessed on its own merits to determine whether it is justified in the circumstances.

Considerations related to a grant of citizenship under 5(5)

When considering the issuance of a TRP to a stateless person intending to apply for a grant under CA 5(5), officers should bear in mind that to be eligible for a grant of citizenship under CA 5(5), applicants must not have been convicted of any of the following offences:

  • a terrorism offence, as defined in section 2 of the Criminal Code;
  • an offence under any of sections 47, 51 or 52 of the Criminal Code;
  • an offence under subsection 5(1) or any of sections 6 and 16 to 22 of the Security of Information Act ; or
  • conspiring, attempting to commit, being an accessory after the fact or counseling in relation to any offence referred to in the second and third bullets above.

In addition, an applicant must not be the subject of a declaration by the Governor in Council in matters of security, pursuant to section 20 of the Citizenship Act.

TRP processing

In considering whether to issue a TRP to a person who may become eligible for a grant of citizenship, officers should continue to recommend and issue permits in accordance with the guidelines provided in OP 20 and are required to keep documentary evidence of their decision on file.

Any person who is inadmissible or does not meet the requirements of the Act and is seeking to enter Canada is eligible for a TRP [A24(1)] if an officer is of the opinion that it is justified in the circumstances.

It is anticipated that the majority of stateless individuals will not meet the requirements of the IRPA to enter Canada. Stateless persons seeking to enter Canada for the purpose of a C-37 grant of citizenship will be doing so as visitors, with the purpose of remaining for a period of at least three years within a four-year period. As such, it is likely that an officer would not be satisfied that the applicant is a genuine visitor to Canada who would leave at the end of an authorized stay. Therefore, the applicant would not meet the requirement for the issuance of a temporary resident visa, specifically R179(b): they will not leave Canada by the end of the period authorized for their stay under Division 2. Furthermore, as some stateless persons may not have acceptable travel documents, they may not meet the requirements of R179(c): to hold a passport or other document they may use to enter the country that issued it or another country.

Negative decisions may result in a stateless client remaining stateless due to the inability to enter Canada to meet the requirements to obtain the 5(5) grant. Negative decisions should be clear, well-founded and documented.

Travel document

It is possible that the stateless client may not have a travel document. In these cases clients may be issued a Single Journey Travel Document (SJTD – IMM 5565B) in addition to the TRP counterfoil to allow them to travel to Canada. The issuance of a SJTD is delegated to the program manager. Clients are to be counselled that the SJTD must be surrendered upon entry to Canada.

Applicants without travel documents should be counselled regarding the limitations on their ability to leave and re-enter Canada.

Permit validity

As section 5(5) requires stateless persons to be residents for three years during the four-year period before applying for citizenship, officers should issue the initial TRP for the three-year maximum.

Clients should be counselled about applying inland for a subsequent TRP in order to cover the time required to complete the citizenship processing and, in some cases, meet the residence requirement. As the subsequent TRP will be considered a ‘new’ permit, the applicant will be assessed for any new inadmissibilities. If a new inadmissibility is discovered, the officer has the discretion to issue a new TRP or to refuse the application, depending on the circumstances. Officers should take into account the list of prohibitions for a 5(5) grant mentioned above.

Negative decisions should be well supported in the documentary evidence as a stateless client may remain stateless due to the inability to obtain the 5(5) grant. In addition, the client may not possess a travel document to leave Canada and refusal may result in an unenforceable removal order.

Special program code

TRPs issued to stateless clients to meet the residence requirement of the grant of citizenship for stateless persons impacted by Bill C-37 should be coded for the applicable inadmissibility in addition to the special program code C37. This new special program code will allow CIC to track the number of permits issued in these circumstances. The case type code 80 (inadmissible person NES) should also be used.

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