Citizenship By Descent in Canada: New Laws To Make Citizenship More Fair

The new law is in response to the previous citizenship by descent law, which created a second-generation cut-off, being struck down by courts in 2023. It is designed to be more equitable and more widely applicable, since it will cover anyone born outside of Canada to Canadian parents. 

Key Takeaways

• The new law removes the second-generation abroad limit that was imposed under Canada’s previous citizenship laws. 
• The new law will also make it simpler for children born abroad and adopted by Canadian citizens who were born abroad to gain citizenship.
• The proposed new law is not currently in effect. If you’re impacted by the second-generation limit, you will either apply for citizenship and receive urgent processing or (if you’re not eligible for urgent processing) your application will be deprioritized until after the new laws come into effect.

How Does The New Citizenship By Descent Law Work in Canada? 

The proposed law will require anyone born outside of Canada to prove that their parents had ‘a substantial connection’ to Canada to be granted automatic citizenship. It is proposed that the parents would need to have spent at least 1,095 cumulative days in Canada before the birth or adoption of the child if they wish to pass on citizenship. 

This is the same as the physical presence requirement for permanent residents to apply for Canadian citizenship. 

The proposed law will be ‘retroactive’, which means that it will apply to anyone who was born to Canadian parents born abroad even before the law came into effect. 

What Did The Previous Law Say About Citizenship By Descent In Canada? 

In December 2023, Canada’s court system declared the existing citizenship by descent laws unconstitutional. These laws imposed a second generation cut-off for citizenship. This meant that children of Canadians who were born abroad were not eligible for automatic citizenship.

Here’s what that looked like:

A Canadian-born couple moved to the UK, where they had a child, before moving back to Canada with the child, who was 5 years old. That child grew up in Canada, before moving abroad to pursue career opportunities. If that UK-born child gave birth to a child outside of Canada, their child would not be granted automatic Canadian citizenship. 

A practical effect of the law is that it required pregnant people to decide whether it was worthwhile traveling to Canada to give birth. This comes with complex health risks, in addition to the financial strain of traveling to a country where you may not have health coverage to give birth. 

The proposed new laws would change this. If passed, the second-generation child in the above example would be eligible for automatic citizenship.

This rule was controversial because it created a two-tier system, where Canadians who were born abroad could not pass on their citizenship to their children unless they lived in Canada. 

It was also argued that this rule disproportionately impacted women Canadians who were born abroad during their reproductive years. This is because the law forced them to decide whether travel, study, and career opportunities abroad were more important than passing on their citizenship. 

What To Do If You’re A Second-Generation Canadian Born Abroad

The new laws are not currently in effect. Until they come into effect, the first-generation limit rules remain in place. As a result, the Canadian government has introduced temporary measures to address the issues second-generation born abroad Canadians face. 

IRCC will first verify whether the application is eligible for urgent processing. If so, you will be notified that the first-generation limit is still the law and you will be given the option to request a discretionary grant of citizenship. You will receive information about how to apply for the grant at this time. 

Generally speaking, an application will only be considered urgent if the person requires it for work purposes, education in another country, travel, or accessing social benefits. 

If you are not eligible for priority processing, your application will remain in regular processing and deprioritised until the new laws come into effect. 

At the moment, processing times for citizenship applications are around 8 months, from submission of your application to the oath of citizenship ceremony. So we can extrapolate that processing for these citizenship applications will potentially take 8 months from when the new laws come into effect (though the processing times are subject to change and may be longer or shorter at the point in time the laws pass). 

Another Perspective: Citizenship In Decline In Canada

Another perspective to consider is the recent decline in citizenship uptake by newcomers to Canada. Statistics Canada released figures in February highlighting a significant decrease in the number of newcomers choosing to become Canadian citizens. 

The report shows that almost 75.4% of newcomers opted to become Canadian citizens in 1996, while just 45.7% in 2021 made the same decision. The decline in citizenship uptake was more pronounced between 2016 and 2021 than it had been in any five year period since 1996. 

There are a number of reasons driving the decline in citizenship adoption, according to the report, including: 

• An increase in the residency requirement between 2015 and 2017, which has since been removed. The residency requirement is currently three of five years. 
• Processing delays caused by COVID-19. 

The report also notes that the decline in citizenship is higher amongst newcomers with lower education levels, lower family income, and poorer language skills (in English or French). 

A further study by the Institute for Canadian Citizenship highlighted further reasons that Canadian residents were not inclined to become citizens, including reluctance to renounce citizenship in their home country (for those that don’t allow dual citizenship), unmet expectations from life in Canada, frustrations with Canada’s immigration system, and other integration issues. 

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