First-generation limit on Canadian citizenship by descent on the way out

The Ontario Superior Court has granted a federal government request to extend the deadline for amendment of the Citizenship Act until August 9, 2024, at the earliest with further extension to December 2024 possible, but interim relief is available for some.

Citizenship by descent occurs when a Canadian citizen gives birth to or adopts a child. By virtue of the new parent-child relationship, that child is automatically eligible for citizenship status. At least that is how it worked for generations of Canadians until an amendment to the Citizenship Act in 2009 took effect. It imposed a new first-generation limit (FGL) to citizenship by descent to certain children born abroad to citizen-mothers.

The FGL restricts citizenship by descent to the first generation born abroad when their citizen-parents had also been born outside of Canada. In other words, if a Canadian citizen not born in Canada gives birth abroad, citizenship passes to that child but not to future generations after that child.

However, this limitation does not apply to children born abroad when at least one parent was born in Canada or in certain other narrow circumstances, such as if the parent or grandparent that makes the child ineligible was abroad because of Canadian military service or other kinds of government employment.

FGL declared unconstitutional

In Dec. 2023, the Ontario Superior Court said this created an unconstitutional two-tiered citizenship scheme that created “a lesser class of citizenship.”

The court said that the “second-generation cut-off” of inherited citizenship discriminated based on national origin and on sex. The judge wrote that FGL is “patriarchal and racist,” noting that pregnant Canadian citizens born abroad who will or have given birth abroad to children not eligible for citizenship by descent face hardships and tough decisions.

To correct this inconsistent treatment of citizens, the court ordered the federal government to remove FGL from the Citizenship Act by June 19, 2024. The government did not challenge the court’s ruling and Bill C-71 would eliminate FGL. Instead, a child born outside of Canada to a Canadian parent also born abroad would be eligible for citizenship if that parent has “substantial connections” to Canada, meaning they have been there at least 1,095 days.

The bill would also give citizenship to those who would have inherited it but for the FGL. As of this July 1, 2024, writing, Bill C-71 has had it first reading in the House of Commons and the Senate has taken no action. It must pass both houses of Parliament and receive Royal Assent to take effect.

Interim relief

On May 30, 2024, Immigration, Refugees and Citizenship Canada (IRCC) announced interim measures to provide relief to some harmed by the first-generation limitation. These will help some in this stretch of time between the court order and the final change in the law.

The interim measure creates criteria for “urgent processing” of proof of citizenship applications, filed or new. The applicant may request urgent processing if they feel they are eligible. IRCC will notify those eligible that they may apply for discretionary grants of citizenship.

Examples of potential urgent situations that may trigger expedited processing of citizenship include employment, education abroad, travel permissions when relatives have serious illness or have died, social benefits (like health care) and others.

Negatively impacted individuals may also be eligible for other types of immigration relief.

Key takeaways

Anyone harmed by FGL or with a loved one facing these limitations should seek advice and representation by an experienced immigration lawyer. A lawyer can assist with interim relief before the law has changed or after if action is necessary to establish or reject citizenship. In addition, the lawyer can explore whether any other immigration status or process may be helpful.