Birthright Citizenship: A Case of a Solution Needing a Problem

September 2018

I consider myself to be a mild-mannered person. Living with teenagers has required learning the patience of Job. It is rare that I find myself hot under the collar about something.  But the issue of birthright citizenship is one that really sticks in my craw. 

All children born in Canada, even in Canadian airspace, are automatically granted citizenship. There is only one narrow exception, which is set out in our Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

This section is about to be litigated in Canada’s Supreme Court, over children born in Canada to Russian spies.  This section is also the one which made Deepan Budlakoti stateless. 

Last month, the Conservative Party of Canada held a policy convention. The party narrowly adopted a resolution which stated:

We encourage the government to enact legislation which will fully eliminate birthright citizenship in Canada unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.

Given how many issues have already been created over the very limited exception to birthright citizenship for children born to diplomats, can you imagine the chaos that will ensue if the Conservative resolution becomes law? The regulatory implications are completely unworkable. 

The purported goal of the Conservative resolution is to eliminate birth tourism. This occurs when women travel to Canada for the sole purpose of giving birth, sometimes misrepresenting their intentions for travelling, and not always fully paying their hospital bills.  According to media reports, the goal of birth tourism is for the Canadian-born children to later be able to sponsor their parents, so that the family can live in Canada together. 

There seems to be a lack of knowledge over the limited quota for parental sponsorships, and the need for the sponsoring child to be able to show three years of Canadian income tax statements proving a solid middle-class income prior to applying. As a result, so far as birth tourism goes, Canada likely isn’t even a particularly good choice.  Abolishing birthright citizenship is a solution in need of a problem – there are only a few hundred babies born in Canada through birth tourism each year.   In addition, our immigration department specifically permits women to apply for visitor visas to come to Canada to give birth. 

In a series of tweets, uOttawa professor Jamie Liew explains that Canada is party to the 1961 Convention on the Reduction of Statelessness.  That document, in addition to a provision in the Convention on the Rights of the Child that provides a right to nationality, means that abolishing birthright citizenship would lead to Canada violating its international obligations.  It is true that an exemption could be worked into any legislative changes to ensure no child would be rendered stateless. However, why purposefully create a bureaucratic nightmare?  It is those who are most marginalized, including refugee claimants with little English and no resources, who will be disproportionately affected.

When the controversy broke out in the news last week, our associate lawyer Fanni Csaba took to twitter:

If this policy existed when my dad was born in Canada to my refugee grandmother, I wouldn't be Cdn. Canada could've dodged a bullet keeping out SUCH an unproductive member of Cdn society. But hey, I'm the right 'type' of citizen so I should know this isn't aimed at me, right?

A previous Conservative government abandoned plans to tackle the birth tourism ‘problem’.  The ‘solution’ would simply be too costly to enact.  Sensible, they were.  So why is this new crop of Conservative politicians bringing up the issue only four years later?   Surely it is a coincidence that this issue is also coming to the forefront in the USA.

There is an alternative to this issue. Abolish national borders.  One planet, one people.  Not having countries means not needing citizenship in one. 

If this is too radical for you, then just leave things be. Stop playing politics with babies’ lives.

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