SOCI – Bjorkquist et al and First Generation Limit Interim Measure – December 5, 2024

Key Facts

• On December 19, 2023, the Ontario Superior Court of Justice declared that certain sections of the Citizenship Act regarding the first-generation limit (FGL) are unconstitutional, which the government did not appeal; however, a suspension of the Court’s declaration of invalidity is currently in effect until December 19, 2024. An Interim Measure to support individuals impacted by the FGL and who require urgent processing of their citizenship application is currently in place.

Key Messages

• The FGL to citizenship by descent has had unacceptable consequences for Canadians and their families born abroad, including those with a genuine connection to Canada.
• For this reason, the government did not appeal the decision of the Ontario Superior Court and has introduced legislation, Bill C-71, that would extend citizenship by descent beyond the first generation in a way that is inclusive and protects the value of Canadian citizenship.
• While the legislation makes its way through the Parliamentary process and the FGL continues to be in force, an Interim Measure has been introduced to help ensure that individuals impacted by the first generation limit facing urgent circumstances, such as but not limited to harm, hardship or statelessness, have a pathway to citizenship.

Supplementary Information

Bjorkquist Litigation

• On December 19, 2023, the Ontario Superior Court of Justice declared that the FGL to citizenship by descent was unconstitutional.
• On January 22, 2024, the government announced that it would not appeal the decision, recognizing that the FGL has had unacceptable consequences for some Canadians whose children were born abroad.
• On August 2, 2024, the Court granted an extension of the suspension of the declaration of invalidity to December 19, 2024, until which time the current rules governing citizenship by descent remain in effect.
• The government will file a motion on November 29, 2024, seeking a three-month extension of the suspension of the declaration of invalidity.
• An Interim Measure has been put in place for persons who may be impacted by the FGL. The Interim Measure is invoked when an applicant makes a request for urgent processing of their application for a citizenship certificate (proof). If the applicant is eligible for urgent processing, they are provided the option to request consideration for a grant of citizenship under subsection 5(4) of the Citizenship Act at the Minister of Immigration, Refugees and Citizenship’s (IRC) discretion. 
• If the applicant elects to be considered for a discretionary grant, they are instructed to provide additional documentation and to pay the $100 right of citizenship fee (if applicable) after which the Minister of IRC or a delegated decision-maker will assess their application.
• In parallel, Bill C-71, An Act to amend the Citizenship Act (2024), was introduced in the House of Commons on May 23, 2024. Bill C-71 aims to extend citizenship by descent beyond the first generation in a way that is inclusive and protects the value of Canadian citizenship.
• The Interim Measure supporting individuals impacted by the FGL will remain in effect until either Bill C-71 comes into force or the Bjorkquist declaration of invalidity takes effect, whichever comes first.
• If the Bjorkquist declaration comes into effect first, the Interim Measure would continue to apply to a smaller subset of individuals who remain impacted by the FGL until Bill C-71 comes into force.

If pressed on urgent processing:

• Immigration, Refugees and Citizenship Canada can process proof of citizenship applications urgently in special cases or situations such as: to avoid situations of potential harm or hardship, to move a minor child to Canada, to obtain social benefits, to alleviate cases of statelessness, to obtain proof of citizenship for employment or schooling, and to travel due to death or serious illness in the family while unable to obtain a passport in their other nationality.
• Applicants may reapply for urgent processing should their circumstances change. However, a decision to approve urgent processing is not guaranteed.