Bill C-71 opens up a possible never-ending chain of citizenship

by Policy Options. Originally published on Policy Options
July 8, 2024

Bill C-71 sets out to allow Canadians to pass on their citizenship to any of their children born abroad past the first generation and expands “Lost Canadians” to cover a much larger number than before.

It is fraught with potential unintended consequences.

The bill is in response to a ruling by the Ontario Superior Court of Justice in 2023, which declared previous limitations for citizenship transmission unconstitutional. Essentially, the court objected to a limitation inherent in previous citizenship laws that prevented Canadian citizens born outside Canada from passing on citizenship to a child also born abroad, or for an adopted child born outside Canada.

To remedy the issue, Bill C-71 uses residency as the “substantial connection test.”

However, the new standard in Bill C-71, which requires a foreign-born Canadian parent to have spent a total of 1,095 days in Canada prior to the birth or adoption, differs significantly from what is required of new Canadians.

Specifically, while in both cases the parent must have spent 1,095 days (the equivalent of three years) in Canada, new Canadians must have done so within a five-year time limit.

Bill C-71 places no such time limit to accumulate 1,095 days of residency in Canada for foreign-born Canadian citizens in the same circumstance.

This lack of a timeframe for meeting the critical requirement for passing on citizenship to descendants suggests the government has failed to fully consider the implications of such an open-ended condition.

The number of people potentially affected is significant.

There are an estimated four million Canadians living outside Canada. About half of them were born abroad.

As of 2017, two-thirds of them lived in the U.S., with another 15 per cent in the U.K., Australia, France and Italy – the total living in all other countries has unsurprisingly risen from 14 per cent in 1990 to 20 per cent in 2017.

This trend is significant in the context of Bill C-71: for second- and subsequent-generation expatriates in the U.S., EU and other politically stable places, seeking Canadian citizenship may not be a priority. It is likely a higher priority for those in other countries with less secure conditions.

Fueling the issue triggered by Bill C-71, expatriates as a whole are older than Canadians living in Canada – 45.3 years old compared to 41.7. Citizens by descent are much younger, at an average age of 31.7.

Without an established timeframe, it will be challenging or impossible for the federal government to accurately predict citizenship acquisition year over year.

Same rights, divergent pathways

Consider these scenarios:

My grandson was born in Europe. He cannot pass down Canadian citizenship to any future child. Under C-71, he would have that right, but only after first spending 1,095 cumulative days in Canada. One strategy would be to attend a Canadian university and accumulate most or all of the 1,095 days while getting a degree.

Consider a Canadian born abroad who maintains a cottage in Canada and spends summers there. Spending eight weeks a year in Canada, it would take nearly 20 years to acquire the right to give their descendants Canadian citizenship.

For second-generation Canadians who spend most of their life abroad, the road is even longer. Perhaps they make occasional trips to Canada, accumulating days to meet the 1,095-day requirement. But they would not likely meet the threshold unless they choose to return permanently in retirement.

Many descendants who are temporary residents either through a job transfer or as spouses of skilled workers or students would likely meet the physical-presence requirement. Temporary foreign workers on seasonal or short-terms contracts, on the other hand, would likely not meet the requirement.

The first two scenarios are manageable given that the physical-presence requirement for most would be met within a defined time period. In the latter situations, it is impossible to forecast if or when descendant citizenship rights would eventually be required.

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Immigration Refugees and Citizenship Canada (IRCC) needs to determine and share estimates for the approximate number of new citizens expected under the change, along with the incremental workload and resources that are required before the bill goes before committee.

Media in India are characterizing Bill C-71 as legislation that “will open up the chain of citizenship without end as long as the parents have spent at least 1,095 cumulative days.”

Arguably, this change moves Canada closer to a hybrid jus sanguinis/jus soli regime, as it will make it possible for families to maintain intergenerational Canadian citizenship through different scenarios, which currently is not possible.

It may also provide opportunities for longer-term sophisticated foreign-interference efforts by countries like China and India by exploiting descendants who can acquire Canadian citizenship in their recruitment strategies.

Another question that remains unanswered is how many “Lost Canadians” want to be found. As seen in previous efforts to respond to public pressures, the actual number of those who request citizenship proofs is relatively small, at an average of just 1,500 per year between 2009 and 2022. (Similarly, the low number of expatriates who register and vote is another indicator that interest may be limited.)

However, the potential impact of Bil C-71 could be potentially large. So, before the government enshrines a new pathway to citizenship for some, all of the facts need to be properly considered.

Canadian citizenship is a precious gift. At the committee stage, members of Parliament must be able to fulsomely examine the implications of an open-ended residency requirement and consider establishing a specific time frame of five or 10 years.

This article authored by Andrew Griffith first appeared on Policy Options and is republished here under a Creative Commons license.