Retention of citizenship prior attaining 28 years old

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.

This section provides background on birth outside Canada by descent and guidelines on retention of citizenship for persons born outside Canada on or after February 15, 1977 to a Canadian parent in the second or subsequent generation.

The loss of citizenship at the age of 28 years old under section 8 and retention requirements were repealed under the legislative amendments that occurred on April 17, 2009. This means that persons who turned 28 years old on or after that date are still Canadian citizens and do not need to take steps to retain their citizenship.

This section outlines the process by which Immigration, Refugees and Citizenship Canada (IRCC) processed applications for retention and the procedures in place at the time. Canadian citizens subject to section 8 were advised of the requirement to retain citizenship. If a person did not retain citizenship, either by failing to apply for retention before turning 28 or by having an application for retention refused, the person has ceased to be a citizen. IRCC advised the former citizen of the process to obtain permanent resident status and subsequently applied to resume citizenship.

Background on birth outside Canada

From January 1, 1947 to February 14, 1977, children born outside Canada acquired citizenship only if their birth was registered within two years and they were born in wedlock to a Canadian father or out of wedlock to a Canadian mother. Adopted children, children born in wedlock to Canadian mothers and children born out of wedlock to Canadian fathers had no right to citizenship.

Under the Citizenship Act (1977), children born outside Canada on or after February 15, 1977 derive citizenship through either citizen parent and are citizens regardless of the parent's marital status at the time of the child's birth. Registration of birth outside Canada is not required. However, the 1977 Act does not allow adopted children to derive citizenship through the Canadian parent.

Transition clauses in 1977 Act

Two temporary provisions were part of the 1977 Act. One allowed persons who were not registered before February 15, 1977 to register (subsection 4(3)). The second provided for a facilitated grant of citizenship for children born in wedlock to Canadian mothers (paragraph 5(2)(b)). After May 17, 2004, after a Federal Court decision, paragraph 5(2)(b) also applied to children born between January 1, 1947 and February 14, 1977, out of wedlock to Canadian fathers.

The transition clauses expired on August 14, 2004.

Delayed registration of birth under Subsection 4(3)

Canadian Citizenship Act, 1947

  • Paragraph 5(1)(b)
  • Subsection 5(2)

Citizenship Act, 1977

  • Paragraph 3(1)(e)
  • Subsection 4(3)

Persons eligible to be registered whose births were not registered before February 15, 1977 were able to apply for a delayed registration of birth outside Canada until August 14, 2004. Persons who were registered as citizens under subsection 4(3) are considered citizens by birth and citizenship is retroactive to birth. Children born outside Canada to a person registered under subsection 4(3) are considered to be the second generation born outside Canada and are subject to loss under section 8 of the Act.

Facilitated grant of citizenship under Paragraph 5(2)(b)

Persons born outside Canada between January 1, 1947 and February 14, 1977 in wedlock to a Canadian mother were able to apply for a grant of citizenship under paragraph 5(2)(b) until August 14, 2004. Between May 17, 2004 and August 14, 2004, persons born out of wedlock to Canadian fathers were also eligible to apply for this grant. The grant was not retroactive to birth but became effective on the date the application was approved (see Grant of Citizenship – 5(2)(b)).

Children born outside Canada after the parent is granted under 5(2)(b) are considered to be the first generation born outside Canada and not subject to loss under section 8 of the Act. Children born outside Canada before the parent is granted under 5(2)(b) are not citizens.

Who is subject to section 8 of the Citizenship Act (1977)?

Children born outside Canada in the first generation are not subject to loss under section 8. Children born outside Canada in the second or subsequent generations must take steps to retain citizenship before their 28th birthday.

Section 8 defines the second generation as a person who was born outside Canada on or after February 15, 1977 to a parent who:

  • was born outside Canada between January 1, 1947 and February 14, 1977 and registered as a citizen on or after February 15, 1977, or
  • was born outside Canada on or after February 15, 1977.

The list below illustrates who is and who is not subject to loss by birth outside Canada in the second generation.

Note: In this list, "before 1977" refers to between January 1, 1947 and February 14, 1977 and "after 1977" refers to on or after February 15, 1977. The paragraphs indicated in parentheses refer to specific paragraphs of section 3 of the Citizenship Act.

  1. Person born or naturalized in Canada before or after 1977 [3(1)(a), 3(1)(c), 3(1)(d)]
    • And has a child born outside Canada before or after 1977 (if parent naturalized, child born after parent naturalized) [3(1)(b), 3(1)(d), 3(1)(e)]
    • then the child is not subject to loss and does not have to retain under section 8.
  2. Person born outside Canada before 1977 and registered as a citizen…
    • Before 1977 [3(1)(d)]
      • And has a child born outside Canada after 1977 [3(1)(b)]
      • Then the child is not subject to loss and does not have to retain under section 8.
    • After 1977 [3(1)(e)]
      • has a child born outside Canada before 1977 and this child also registered after 1977
      • then the child is not subject to loss and does not have to retain under section 8.

        OR

      • has a child born outside Canada after 1977 [3(1)(b)]
      • then the child is subject to loss and does have to retain under section 8.
  3. Person born outside Canada after 1977
    • (1st generation) [3(1)(b)]
      • has a child born outside Canada after 1977 [3(1)(b)]
      • then the child is subject to loss and does have to retain under section 8.

      OR

    • To a Canadian parent also born outside Canada [3(1)(b), 3(1)(e)]
      • has a child born outside Canada after 1977 (3rd generation) [3(1)(b)]
      • the 3rd generation child is a citizen if born before parent's 28th birthday or born after parent formally retained citizenship. This 3rd generation is also subject to section 8 retention provision.
  4. Person born outside Canada and did not retain citizenship
    • has a child born outside Canada after loss of citizenship
    • the child is not a citizen.

Loss under section 8

As the loss under section 8 was repealed on April 17, 2009, only persons born between February 15, 1977 and April 16, 1981 are subject to loss on attaining 28. These persons had to make an application to retain citizenship before their 28th birthday and had their application approved to remain Canadian citizens.

Loss occurs even if the person resided in Canada. This means that persons residing in Canada who ceased to be citizens before April 17, 2009 under section 8 have no legal status in Canada. Persons who ceased to be a citizen under section 8 can apply for permanent resident status and subsequently resume citizenship under subsection 11(1) of the Act.

Requirements of section 8

There were three requirements for retention of citizenship under section 8 of the Citizenship Act:

  • register as a citizen;
  • have residence in Canada or a "substantial connection" with Canada; and
  • make an application for retention.

Registration

Before April 17, 2009, a person born outside Canada in the second generation was automatically a Canadian citizen at birth. For second generation born outside Canada, the approved application for proof of citizenship fulfilled the registration requirement of subsection 8(b) of the Citizenship Act.

Residence in or substantial connection with Canada

In order to have retained citizenship a person must have:

  • resided in Canada for one year immediately before applying for retention, or
  • had established a substantial connection with Canada after the age of 14 and before the age of 28.

Residence in Canada

The applicant for retention must have resided in Canada for at least one year immediately before making the application. This means that the applicant must have move to Canada by the day before turning 27 years old, at the very latest. A person arriving on or after the 27th birthday was not be able to meet the minimum requirement of one year residence in Canada before the 28th birthday.

Example 1

A person subject to section 8, whose 28th birthday is July 1, 2007, moves to Canada on June 30, 2006. This person must make an application for retention of citizenship on June 30, 2006.

Example 2

A person subject to section 8, whose 28th birthday is July 1, 2007, moves to Canada on March 1, 2002. This person may apply for retention of citizenship one year after arriving; that is, March 1, 2003. Furthermore, this person may apply for retention anytime between March 1, 2003 and April 16, 2009 as long as they have continued to reside in Canada for one year immediately before making the application.

Subsection 8(b) of the Act specifies that a person must "reside in Canada for a period of at least one year immediately preceding the date of his application". The Minister's direction is that residence is considered to be physical presence in Canada unless there are certain exceptional circumstances (see CP 5 – Residence). Existing Federal Court jurisprudence applies to the evaluation of residence in Canada during the period specified in the Act as the pertinent period of residence. In accordance with established case law, an applicant, in certain cases, may be absent from Canada during this period and still meet the residence requirement.

Paragraph 6(3)(e) of the Regulations states that evidence to establish residence in Canada must be submitted with the application for retention. This evidence must clearly show that the applicant has resided in Canada for at least one year immediately before the date of the application.

Example 3

A person subject to section 8, whose 28th birthday is July 1, 2007, moves to Canada on March 1, 2002. She lives in Canada until May 1, 2004 when she returns to the country of her birth (or moves away to live in another country). She applies for retention on October 1, 2004.

Even though she lived in Canada for at least one year, it was not the year immediately before her application (October 1, 2003 to October 1, 2004). Therefore, she does not meet the residence requirement for retention. However, she may satisfy the "substantial connection with Canada" criteria (see 12.9.6).

Evidence of residence

Examples of proof of residence include but are not limited to:

  • employment records or if self employed, evidence of business transactions in Canada;
  • school records;
  • rental agreements, receipts, or leases;
  • mortgage papers, land transfer documents;
  • property tax bills or receipts, residential property assessment notices, notice of assessments;
  • bank or credit card statements confirming transactions made in Canada;
  • receipts confirming purchases made in Canada (e.g. signature for goods received), utility bills, telephone bills, insurance policies;
  • stamps in passport(s) or travel document(s);
  • provincial or territorial health records, letters from health professionals confirming dates of visits.

Time not counted towards residence

Under section 21 of the Citizenship Act, time spent on probation, on parole, or confined in a penitentiary, jail, reformatory or prison cannot be counted as periods of residence.

Substantial connection with Canada

The other way to have met the retention criteria was to establish a substantial connection with Canada. For example, a person who came to Canada some time after February 15, 1977 but did not stay and did not apply to retain after one year's residence, may have sufficient and specific connections with Canada to satisfy the requirements of subsection 8(b) of the Act regarding a substantial connection with Canada.

Section 16 of the Regulations specifies the criteria for determining a substantial connection with Canada:

  • employment, for at least two of the four years immediately before the application, in the public service of Canada or a province, or as a member of the Canadian Forces or the Royal Canadian Mounted Police or as a Canadian representative to the United Nations or one of its affiliated agencies, or
  • an adequate knowledge of Canada, of one of the official languages of Canada (English or French), and the responsibilities and privileges of citizenship, and since turning 14 years of age, has spent more than one year in Canada with a member of their family, or in attendance at a recognized secondary or post-secondary educational institution.

The citizenship judge must have been satisfied the evidence used to establish substantial connection with Canada clearly shows that the applicant was employed as specified in 16(a) or was present in Canada as specified in 16(b). The judge also had to determine whether the applicant met the language and knowledge requirements of 16(b).

Acceptable proof of substantial connection

Acceptable proof of substantial connection

  • employment records;
  • school records;
  • sworn affidavit from family member(s) (parent, brother, sister, aunt, uncle or grandparent) describing circumstances of residence in Canada (when, where, with whom applicant lived);
  • provincial or territorial health records, medical records, letters from doctors;
  • birth or marriage certificates if applicant gave birth or got married during pertinent period in Canada.

The criteria for determining whether a person has an adequate knowledge of English or French are based on questions prepared by the Minister. See CP 4, Section 5: Assessing Language and Knowledge – Written Test and CP 4, Section 6: Assessing Language and Knowledge – Oral Interview.

Note: There is no waiver based on age for section 8 applicants.

Application for retention

A person subject to section 8 of the Citizenship Act must have made a formal application, in the prescribed form, to retain citizenship. Supporting documents to establish citizenship and compliance with residence requirement or substantial connection with Canada must have also been submitted with the application.

Process for application for retention

CPC Sydney

Applications for retention were received at CPC Sydney directly from applicants or through missions abroad or local offices. An officer at CPC reviewed the file to confirm the applicant was a citizen, research any previous records pertaining to the current application, and determine if the application is based on residence or substantial connection Once citizenship was established, the file was referred for decision to a citizenship judge at a local office or to a mission.

Decision making applications for retention

Citizenship judges made the decision to approve or refuse applications for retention.

For applicants residing in Canada, the judge in the local office evaluated applications, conducted interviews, if necessary, and made the decision to approve or refuse retention of citizenship. For applicants residing outside Canada, the senior citizenship judge conducted telephone interviews to test language and knowledge and obtain any additional information necessary to make a decision. These interviews were administered at the mission where staff will verify the applicant's identity.

In accordance with section 14 of the Act, the decision to approve or refuse an application was to be made within 60 days. The applicant was advised, in writing, of the judge's decision. Both the applicant and the Minister had the right to appeal the judge's decision to the Federal Court – Trial Division.

Approval of applications for retention

When the judge approved an application, it was referred to an officer who was delegated under section 8 to approve the issuance of a certificate. If the officer believed the judge may have made an error or did not correctly apply Federal Court jurisprudence, the Minister may appeal the judge's decision.

Proof of retention

The retention certificate is confirmation that Canadian citizenship was retained. A new citizenship certificate was issued at the same time as the retention certificate. All previously issued certificates were to be surrendered.

Refusal of an application for retention

When an application was refused, the citizenship judge provided written reasons for the refusal. The letter also outline the process to initiate an appeal of the judge's decision. Also, if a citizenship certificate was prepared in conjunction with the application under section 8, it will was cancelled and not issued to the applicant.

Person under 28 years old

Until age 28, unsuccessful applicants may have reapply for retention whenever they felt they met the requirements. The refusal letter indicated the applicant did not cease to be a citizen until turning 28 years of age. Any original certificates submitted with the application remain valid (until retention is approved or 28th birthday) and are were returned with the refusal letter.

Person 28 years old or over

A person who had turned 28 and whose application was not approved ceased to be a citizen. The refusal letter outlined the process for resumption. If the applicant was outside Canada and interested in resuming citizenship, the mission would provide information and assistance in applying for permanent resident status (a requirement of resumption). If the applicant was inside Canada, IRCC advised the former citizen of the options for regularizing status in Canada.

When loss was confirmed (i.e. the person has turned 28 years of age and has not retained citizenship), CPC Sydney notified Immigration Query Response Centre and the Passport Office.

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