March 2025

In 2023, the Ontario Superior Court of Justice ruled that a section of the Canadian Citizenship Act was unconstitutional.  The section barred the descendants of some Canadian citizens from acquiring citizenship. Enacted in 2009, it limited the ability to pass citizenship by descent to the first generation born outside of Canada. This meant that a child born outside of Canada to a Canadian parent could obtain a citizenship certificate, but their children, the grandchildren of the Canadian parent, could not. The 2009 amendments also restored citizenship to individuals born in Canada who had lost their status due to the impact of older Canadian citizenship laws, such as those who had acquired citizenship in another country and subsequently lost their Canadian citizenship. However, only the children of these ‘Lost Canadians’ could obtain a citizenship certificate; subsequent generations could not.

The Canadian government decided that rather than appealing the court judgment, it would amend the Citizenship Act to bring it into compliance with the Constitution. Bill C-71, An Act to Amend the Citizenship Act (2024), was intended to address the problematic issues with the law. However, political shenanigans have delayed the passage of the Bill, requiring the government to ask the court for extensions of time to bring the Bill into law. The most recent extension is until April 25, 2025.

Bill C-71 would amend the Citizenship Act by establishing a test of “substantial connection” to Canada, allowing Canadian parents born outside of Canada to pass on their Canadian citizenship to their foreign-born child if they had spent at least three years physically residing in Canada before their birth.

On March 13, 2025, then-Minister of Immigration, Refugees and Citizenship Marc Miller announced an interim measure for individuals impacted by the delay in enacting the Bill. The interim measures enable individuals affected by the “first-generation limit” to be considered for a discretionary grant of citizenship. If you belong to the following groups, which were previously barred by the ‘first-generation limit’ to receive citizenship by descent, you are now offered consideration for a discretionary grant of citizenship:

• You were born or adopted before December 19, 2023 and are currently subject to the first-generation limit
• If you were born or adopted on or after December 19, 2023, and your Canadian parent had at least 1,095 cumulative days of physical presence in Canada before your birth or adoption, you will be offered consideration for a discretionary grant on a prioritized basis
• Certain individuals born before April 1, 1949, who remain affected by the first-generation limit
• You lost your citizenship under the former Section 8 of the Citizenship Act due to unmet retention requirements

 

Like many of my colleagues, I am seeing a surge of interest from American citizens interested in moving to Canada or, if they are already living here, in applying for citizenship. However, immigration to Canada is highly competitive, and many applicants will not be selected. Obtaining citizenship by descent is a way for Americans with ancestors who were born in Canada to avoid the competitive immigration process. Once in possession of a Canadian citizenship certificate, the individual can sponsor their spouse and dependent children, and the entire family could move to Canada once the applications are processed. In rare cases, the Canadian ancestor may have made a formal declaration of alienage, thereby renouncing their Canadian citizenship. If so, their ancestors would not be entitled to Canadian citizenship. Unfortunately, unless records were passed down through the family, the only way to know if this applies is to apply for a citizenship certificate. Historical records are searched as part of the application processing, and the issue would likely arise during this search.