Canada Won’t Appeal Court Ruling Striking Down First Generation Limit to Canadian Citizenship

Minister of Immigration, Refugees, and Citizenship Marc Miller rises during Question Period in the House of Commons on Parliament Hill in Ottawa on Oct. 19, 2023. (Justin Tang /The Canadian Press)

Ottawa says it will not challenge a court ruling that found a portion of Canada’s Citizenship Act to be unconstitutional.

Ontario’s Superior Court of Justice ruled on Dec. 19 that the “second-generation cut-off rule” was a violation of the Canadian Charter of Rights and Freedoms because it denies automatic citizenship to children born abroad if their Canadian parents were also born overseas.

Immigration Minister Marc Miller said the government “will not appeal the ruling.”

“This law, as it currently stands, has had unacceptable consequences for Canadians whose children were born outside the country,” Mr. Miller said in a statement this week.

The court ruling came after seven multi-generational Canadian families sued the Canadian government for declining to grant citizenship to their foreign-born offspring due to the country’s “second-generation cut-off rule.” The clock for challenging the ruling officially ran out last week.

Toronto constitutional lawyer Sujit Choudhry, who represented the so-called “Lost Canadians,” living in Canada, Dubai, Hong Kong, Japan, and the United States, said his clients are “feeling vindicated” by both the judge’s ruling and the government’s decision not to challenge it.

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“Some of them have been fighting for over a decade,” Mr. Choudhry said in a recent media interview. “They feel more of a sense of relief by the government’s decision not to appeal.”

Mr. Choudhry, who filed a constitutional challenge to the second-generation cut-off rule in 2021, said it has been a long road to victory.

“It’s been a protracted and difficult battle,” he said in another media interview, adding that his clients “feel comforted” by the outcome.

Amending an Act

Justice Jasmine Akbarali, in a 55-page ruling, said that foreign-born Canadians were given a “lesser class of citizenship” because, unlike Canadian-born citizens, they weren’t permitted to pass their Canadian citizenship on to their children if they were also born abroad.

She noted that they also were not automatically able to return to Canada to live with their born-abroad children, a privilege that would never be denied to a Canadian-born parent.

“These families’ experiences highlight the real-life impacts of the unconstitutional second-generation cut-off,” Justice Akbarali wrote. “It is particularly tragic that so much suffering was borne by the children.”

She ordered the federal government to amend the Citizenship Act within six months of her ruling.

There was already legislation in the works to do just that, although it has been stalled at the committee level for several months. The Conservative-led Bill S-245, which seeks to amend the Citizenship Act, was amended by a House of Commons committee last June after receiving first and second reading in the House of Commons in 2022.

Although Mr. Miller did not speak to the status of the bill in his statement, his comments seem to indicate it may soon move ahead.

“People who may be impacted by this situation will no doubt have questions about what this means for them and their families,” he said. “That is why we will continue to assess the impacts of the decision on existing legislation and will provide more information and confirm next steps as quickly as possible.”

Origins of Cut-Off Rule

Canada’s Citizenship Act has been amended many times since its inception in 1947.

“For years, the Act allowed Canadian parents to pass citizenship to their children born outside of Canada onto indefinite generations as long as foreign-born descendants had registered with the government by a certain age,” immigration law website CIC news said.

That all changed in 2009 when Canada had to deal with the costly evacuation of 15,000 Lebanese Canadians who had been stranded in Beirut during Lebanon’s war with Israel.

The second-generation cut-off rule was put in place by the then-Conservative government, which sustained heavy criticism for the $85 million evacuation.

Then-Immigration Minister Diane Finley said the rule was enacted to discourage “Canadians of convenience.”

The legislation, she said, was an easy way to “protect” the value of Canadian citizenship by ensuring all citizens had a “real connection” to the country.

Showing a substantial connection to Canada was no longer enough to achieve citizenship under that new rule. Second-generation children would be treated like any other immigrant and would need parental sponsorship to come to Canada as permanent residents. Only then would the children be able to apply for citizenship.