Introduction And Summary
This is Part 4 in my “Little Red Dual Citizenship Book” Series. For parts 1 to 5, see the Appendix.
Excellent from @Chris_Muther: American @dualcitizenship interest surges amid political turmoil https://t.co/lIpRoGSXgI… via@BostonGlobe
— John Richardson – Counsellor for US persons abroad (@ExpatriationLaw) March 26, 2025
A recent article in the Boston Globe is evidence that more and more Americans are interested in acquiring a second citizenship. Second citizenship can be obtained through naturalization, investment or citizenship by descent. “Citizenship by descent” is citizenship conferred based on one’s relationship – ancestry – to a parent or grandparent. The nature of the ancestral relationship depends on the country. Countries offering citizenship by descent include: Italy, Ireland, Poland, Canada and many other European countries. Citizenship by ancestry is often referred to as “citizenship by descent”. The basic principle is that one acquires citizenship because of a familial relationship to a citizen of that country. Increasing numbers of people are learning that through ancestry, they may be able acquire or document a second citizenship.
An option for “citizenship by descent” that is much closer to home – Canada – will soon be an option for more U.S. citizens than it is under exiting law.
Citizenship By Descent – Equal Treatment And Opportunity For All Canadian Citizens
The precise rules governing citizenship by descent vary from country to country. The rules governing citizenship by descent have many difficulties. Should ANY citizen be able to pass his/her citizenship on to the next generation? Does the physical connection to the country of citizenship matter? Should citizenship by descent rules operate so that acquisition of descent can be available for many generations? These questions were explored in the context of Canada’s Charter of Rights And Freedoms.
In December of 2023 J.T. Akbarali j. of the Ontario Superior court ruled on the following issue:
The Issue
[1] At issue in this case is the ability of Canadian citizens who were born abroad, and who have a substantial connection to Canada, to pass on their citizenship to their children if those children are also born abroad.
The Ruling
Brief Conclusion
[5] For the reasons below, I find that s. 3(3)(a) of the Act contravenes ss. 6 and 15 of the Charter and it is not saved by s. 1. Under s. 52 of the Constitution Act, 1982, I declare the provision to be of no force or effect, but I suspend the declaration of invalidity for a period of 6 months from the date of the release of these reasons.
In simple terms, the court ruled that Canadian citizens who were born outside of Canada and have a substantial connection to Canada, can confer Canadian citizenship on their children born outside of Canada. To treat Canadians born in Canada differently from Canadians with a substantial connection to Canada,who were born outside of Canada, is (in the Canadian context) unconstitutional.
The complete ruling is available here:
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc7152/2023onsc7152.html
A Summary Of The Ruling …
The ruling in Bjorquist et al v. Attorney General of Canada held that Canada’s failure to confer Canadian citizenship on individuals born abroad to certain Canadian citizens, who themselves were born abroad, was unconstitutional. (Individuals born abroad to Canadian citizens who were either born in Canada or naturalized as Canadian citizens were Canadian citizens. The court decision removed this inequality.) Commentary on the court’s ruling is here and here. The court ruling also gave the Government of Canada time to amend its citizenship laws so that they become consistent with Canada’s Charter Of Rights. Specifically the Government of Canada must amend it’s citizenship by descent law so that Canadian citizens who acquired Canadian citizenship by descent AND can demonstrate a “substantial connection to Canada”, will be able to confer Canadian citizenship by descent on their children born outside of Canada.
As of March 31, 2025, the Government has proposed its changes in the form of Bill C-71 which has not yet been passed.
A summary of the amendments to Canada’s Citizenship Act Under Bill C-71 (as proposed) include:
SUMMARY
This enactment amends the Citizenship Act to, among other things,
(a) ensure that citizenship by descent is conferred on all persons who were born outside Canada before the coming into force of this enactment to a parent who was a citizen;
(b) confer citizenship by descent on persons born outside Canada after the first generation, on or after the coming into force of this enactment, to a parent who is a citizen and who had a substantial connection to Canada before the person’s birth;
(c) allow citizenship to be granted under section 5.1 of that Act to all persons born outside Canada who were adopted before the coming into force of this enactment by a parent who was a citizen;
(d) allow citizenship to be granted under section 5.1 of that Act to persons born outside Canada who are adopted on or after the coming into force of this enactment by a parent who is a citizen and who had a substantial connection to Canada before the person’s adoption;
(e) restore citizenship to persons who lost their citizenship because they did not make an application to retain it under the former section 8 of that Act or because they made an application under that section that was not approved; and
(f) allow certain persons who become citizens as a result of the coming into force of this enactment to access a simplified process to renounce their citizenship.
(Interestingly, some of these proposals appear to confer Canadian citizenship at birth. Others appear to allow for a grant of citizenship after birth.)
The changes to Canadian law in Bill C-71 will align Canadian citizenship law more closely to the U.S. law governing citizenship by descent. Specifically, individuals born outside Canada to a Canadian citizen parent who “had a substantial connection to Canada before the person’s birth” (at least 1095 days of presence of Canada) would be eligible to pass their Canadian citizenship to the child.
Establishing A Substantial Connection To Canada For Canadian Citizens Living Outside Canada
Imagine you were born in the United States to a Canadian father. You would be a Canada/U.S. dual citizen from birth. Let’s further imagine that you wish to continue living in the United States, but you want to be able to confer Canadian citizenship on future children.
How would you establish a “substantial connection to Canada”?
I suggest that a “substantial connection to Canada” could be created by simply attending a Canadian University or other post secondary institution. This would combine getting a post secondary education with creating the conditions to be able to confer Canadian citizenship on future children born outside of Canada. Assuming, that the future child would be a Canadian citizen from birth and that the child was born in the United States this would make the child a Canada/US dual citizen from birth. The status of Canada/US dual citizen from birth would make that child a “preferred U.S. citizen” under Section 877A of the Internal Revenue Code.
Citizenship By Descent And Life Planning Opportunities …
There are many U.S. citizens who were born outside of Canada to Canadian citizen parent(s). Many of those U.S. citizens will have never considered that they might be either Canadian citizens by birth or eligible for Canadian citizenship through naturalization or registration. The general interest in dual citizenship, coupled with this change in Canadian citizenship law, law will certainly mean that more U.S. citizens will either be or be able to become Canada/U.S. dual citizens.
Canadian citizenship would give U.S. citizens the right to move to Canada, live in Canada, work in Canada and (depending on the amount of time they have spent in Canada) pass Canadian citizenship on to their children. By each generation creating a “substantial connection to Canada”, Canadian citizenship could become a family asset passed down through the generations.
Advantages to Canada/U.S. dual citizenship include:
1. Dual citizenship creates the opportunity to renounce U.S. citizenship; and
2. Dual citizenship from birth creates the opportunity to renounce U.S. citizenship and avoid the U.S. draconian exit taxes.
Incredibly, The largest number of beneficiaries of the 2024 Canadian court decision may be U.S. citizens born to Canadian citizens!
Although Bill C-71 has NOT passed, Canada’s Immigration Minister has arranged (as described in the Appendix*) for “discretionary citizenship” …
John Richardson – Follow me on X.com @ExpatriationLaw
*Appendix A – March 13, 2025 Announcement From Canada’s Immigration Minister
Canada to request a further extension to maintain first-generation limit to Canadian citizenship by descent
From: Immigration, Refugees and Citizenship Canada
Statement
Ottawa, March 13, 2025—The Honourable Marc Miller, Minister of Immigration, Refugees and Citizenship, issued the following statement:
“Canadian citizenship is highly valued around the world. As Minister of Immigration, Refugees and Citizenship, I’m committed to making the citizenship process as fair and transparent as possible.
The Citizenship Act currently includes a “first-generation limit” to citizenship by descent, which means that children born abroad to Canadian citizens beyond the first generation generally do not acquire Canadian citizenship automatically at birth.
On December 19, 2023, the Ontario Superior Court of Justice declared that key provisions setting out the first-generation limit for those born abroad are unconstitutional.
The government agrees that this law as it currently stands has had unacceptable consequences for Canadians whose children were born outside the country. For this reason, we did not appeal the ruling. On May 23, 2024, we introduced former Bill C-71, An Act to amend the Citizenship Act (2024) to address the Court’s decision while upholding the value of Canadian citizenship.
To address delays in passing Bill C-71, I am approving an interim measure to support those affected by the first-generation limit while Parliament considers legislative amendments to the Citizenship Act. Individuals in the following groups will be offered consideration for a discretionary grant of citizenship under subsection 5(4) of the Act:
those born or adopted before December 19, 2023, who are subject to the first-generation limit
those born or adopted on or after December 19, 2023, if their Canadian parent had at least 1,095 cumulative days of physical presence in Canada before their birth or adoption (they 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
those who lost their citizenship under the former section 8 of the Citizenship Act due to unmet retention requirements
The government was granted an extension to the suspension of the Court’s declaration until March 19, 2025. The Government of Canada is now requesting a 12-month extension to provide time to reintroduce former Bill C-71 and allow Parliament to consider and enact the legislation.
For further information (media only), please contact:
Renée LeBlanc Proctor
Press Secretary
Minister’s Office
Immigration, Refugees and Citizenship Canada
Renee.Proctor@cic.gc.ca
Media Relations
Communications Sector
Immigration, Refugees and Citizenship Canada
613-952-1650
media@cic.gc.ca
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Appendix B – Previous Posts In “The Little Red Dual Citizenship Series”
Part 1 – Dual Citizenship Reporting
Part 2 – Under What Circumstances Is Citizenship By Ancestry Justified?
Part 3 – Could U.S./Canada Dual Citizens Residing In Canada Determine The Outcome Of A U.S. Election? (The Democrats Hope So)
Part 4 – A Change In Canadian Law Increase Canadian “Citizenship Through Ancestry” Options For Americans
Part 5 – When Dual Citizenship For The Individual, Becomes “Duel Citizenship” For The State
When I was born in the US in 1952, my Canadian mother could not confer Canadian citizenship to me because she neglected to register me with the Canadian government within the first 2 years of my birth. When we moved to Canada I could only do so as a landed immigrant. Years later when U.S. citizenship law no longer stripped me of my US citizenship in doing so, I naturalized as a Canadian. When Canadian citizenship subsequently changed I became a Canadian citizen at birth through my mother, making me more Canadian than most people – by birth and choice! This recent chance will allow my grandaughter, born in the U.S. and Canadian through her father (my son) to give Canadian citizenship to her children now that she’s back living in the US after being raised mostly in Canada. Great news!