IRCC Minister Transition Binder 2025-03

Citizenship By Descent and Lost Canadians

March 2025

Overview

This briefing is intended to:

• Provide an overview of citizenship by descent and “Lost Canadians”.
• Provide an overview of current litigation related to the first-generation limit to citizenship by descent (Bjorkquist) and key next steps.
• [Redacted]

Background/Context

Who is a Canadian?

• On January 1, 1947, the Canadian Citizenship Act came into force, marking the beginning of Canadian citizenship as a legal status, establishing three ways to acquire Canadian citizenship:
  • by birth on soil – if a person was born in Canada;
  • by naturalization – if a person immigrated to Canada and acquired Canadian citizenship status; and,
  • by descent – if a person was born outside of Canada, they could derive citizenship from a Canadian citizen parent.
• A new Citizenship Act was introduced in 1977, which maintained the three ways to acquire Canadian citizenship

Citizenship by Descent

• Amendments to the Citizenship Act came into force on April 17, 2009, including the introduction of a first-generation limit to citizenship by descent, which means that a Canadian citizen parent can pass on citizenship to a child born outside of Canada if that parent was either 1) born in Canada or 2) naturalized before the birth of their child.
• As a result of the first-generation limit, generally Canadian citizens who were born outside of Canada:
  • Cannot pass on citizenship to their child born outside of Canada; and,
  • Cannot apply for a direct grant of citizenship for a child born outside of Canada and adopted by them.

“Lost Canadians”

• “Lost Canadians” is a term that originally referred to individuals who lost or never acquired Canadian citizenship due to outdated provisions (sex, marital status, place of birth, naturalization status), which affected whether that person could derive, acquire, or lose Canadian citizenship.
• The 1977 Citizenship Act changed these outdated rules, but those who had already lost or never acquired Canadian citizenship were not remedied.
• Most of these cases were remedied by legislative amendments that were implemented in 2009 and 2015, except:

Section 8 “Lost Canadians”

• Persons born abroad to a Canadian parent in the second or subsequent generation who acquired citizenship at birth but did not apply to retain their citizenship or applied but were not successful on their application before turning 28 as required under the former Section 8 of the 1977 Citizenship Act.
• Section 8 was repealed on April 17, 2009, and replaced with the first-generation limit. But those born between February 15, 1977, and April 16, 1981, who had already turned 28 years old by 2009 and had lost their citizenship, were not restored.

Descendants of previously remedied “Lost Canadians”

• While most were remedied in 2009 and 2015, their descendants born abroad in the second or subsequent generations were excluded from citizenship by descent because of the first-generation limit.

Court’s Decision on First Generation-Limit

• On December 19, 2023, the Ontario Superior Court of Justice declared that key provisions setting out the first-generation limit are unconstitutional (Bjorkquist et al). The Government did not appeal the ruling.
• The Court’s decision included a six-month suspension of the declaration of invalidity to allow the government time to introduce remedial legislation. The Court has subsequently granted a series of extensions.
• Legislation is needed as the Court’s decision has struck down key provisions of the first-generation limit, which means that absent a revised framework, Canadian citizenship for many would be passed on in perpetuity to future generations born outside of Canada, regardless of their connection to Canada.
• Additionally, the Court declaration does not apply equally to all. It does not:
  • Strike down the first generation-limit for persons born abroad and adopted by a Canadian parent
  • Restore citizenship to Section 8 “Lost Canadians”
  • Provide citizenship to some persons born abroad beyond the first generation before April 1, 1949
• To respond to Bjorkquist, the government introduced former Bill C-71, An Act to Amend the Citizenship Act (see Annexes) on May 23, 2024, which died on the Order Paper with prorogation of Parliament.

Current Status of Bjorkquist Litigation and Extensions

• The government filed a third request for a further Extension of Time (12 months) after the prorogation of Parliament removed any possibility of Bill C-71 coming into force before March 19, 2025. The hearing took place March 13, 2025.
• The suspension of the declaration of invalidity was extended to April 25, 2025. However, the Judge issued orders requiring the government to provide additional evidence of the proposed expanded interim measure* by April 2, 2025, and further legal arguments by April 4, 2025.
• A hearing will be held on April 11, 2025, to address the additional submissions, which will be followed by a decision on the overall Extension of Time request.
• Should the Extension of Time request be unsuccessful, the declaration of invalidity will take effect on April 26, 2025, at 12:00am [Redacted]

Key Takeaways/Next Steps

• [Redacted]
  • Additional evidence of the expanded interim measures, to be filed by April 2, 2025, at 5 p.m.
  • Further legal argument, to be filed by April 4, 2025, at noon.
• [Redacted]
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Annex A: Former Bill C-71

Former Bill C-71 proposed amendments to the Citizenship Act to address the Court’s ruling comprehensively, while protecting the value of citizenship. It had two key objectives:

• Restore and bestow citizenship to more individuals and their descendants – all people born abroad before its coming into force to a Canadian citizen parent, including “Lost Canadians” and their descendants, will automatically become citizens by descent.
• Establish a revised framework that protects the value of citizenship on a go forward basis with a substantial connection to Canada requirement – for those born abroad on or after coming into force beyond the first generation, they will automatically become citizens by descent, if one of their Canadian parents meets the substantial connection requirement before their birth (an accumulation of 3 years/1095 days of physical presence in Canada).

A similar scheme would apply to those born abroad and adopted by a Canadian citizen adoptive parent beyond the first generation to minimize treatment between “natural born children abroad” and “children born abroad and adopted by a Canadian citizen”.

Additional consequential amendments in Bill C-71 include:

• Ensure that persons who become automatic citizens by operation of law and have previously been granted Canadian citizenship are converted to only being recognized as citizens by descent.
• Provide citizenship by descent to eligible persons whose Canadian parent was deceased at the time of the coming into force of this legislation.
• Extend access to simplified renunciation for some persons born before the coming into force of this legislation who are automatically conferred citizenship retroactively but who do not wish to be citizens.

No person who was previously a Canadian citizen will lose citizenship as a result of these amendments.

Annex B: Examples of the Effect of Bill C-71

Objective 1 – Before Coming Into Force of Bill C-71: Section 8 Loss of Citizenship (“Lost Canadians”)

• Patrick was born in 1978 in Kenya. His father was a Canadian citizen who was also born abroad. Patrick was born a Canadian citizen but did not apply to retain his citizenship before he turned 28, as required by the Section 8 retention requirements in place at the time and lost his citizenship in 2006 when he turned 28.
• Current legislation – Section 8 was repealed and replaced with the first-generation limit in 2009; Patrick’s citizenship was not restored because he was born in the second generation abroad.
• New legislation – Upon coming into force, Patrick’s citizenship is restored retroactively to the date of loss.

Objective 1 – Before Coming Into Force of Bill C-71: Automatic Citizenship By Descent For Persons Born Abroad To A Canadian Citizen Parent

• John is born in 2011 in England. His mother is a Canadian citizen who was also born abroad.
• Current legislation – As John is born in the second generation abroad, he is subject to the first-generation limit to citizenship by descent and is not a Canadian citizen.
• New legislation – Upon coming into force, John becomes an automatic citizen by descent, retroactive to his date of birth

Objective 2 – On or After Coming Into Force of Bill C-71:Automatic Citizenship By Descent For Persons Born Abroad To A Canadian Citizen Parent

• Amy is born in 2026 in Germany. Her mother is a Canadian citizen by descent who was also born abroad. Before Amy was born, her mother lived in Canada for four years while she attended university.
• Current legislation – As Amy is in the second generation born abroad, she is subject to the first-generation limit to citizenship by descent and is not a Canadian citizen.
• New legislation – Upon coming into force, because Amy’s mother meets the substantial connection requirement, Amy becomes an automatic citizen by descent from the time of her birth.

Objective 2 – On or After Coming Into Force of Bill C-71: Access To The Direct Adoptions Grant For Persons Adopted Abroad By A Canadian Citizen Parent

• Jeff is born in 2026 in the United States. He is adopted by Canadian citizen parents in 2027, who were also born abroad. Before Jeff’s adoption, his Canadian citizen parents lived for five years in Canada.
• Current legislation – Jeff’s parents are unable to apply for the direct grant of citizenship for an adopted person because they cannot pass on citizenship to Jeff. This is because they were born in the first generation outside Canada.
• New legislation – Upon coming into force, Jeff’s parents can apply for the direct grant of citizenship because they have met the substantial connection requirement. Once his application is granted, he is a citizen as of the date of his grant.