Proposed changes to the Citizenship Act have prompted concerns of a “never-ending chain of citizenship” for Canadians choosing to live abroad, including for the children of so-called birth tourists.
Bill C-71 is a proposed amendment to the Act that intends to allow Canadian citizenship to be continuously passed down by citizens who were born abroad to their children who are also born abroad, as opposed to the current first-generation limit.
The chief caveat is that any person who is born abroad to a Canadian parent must have spent at least 1,095 days in Canada cumulatively in their lifetime, prior to having their child — what the Liberal government considers a “substantial connection” to the country.
There are no provisions to write a citizenship test or have an official language assessment.
“It is fraught with potential unintended consequences,” says Andrew Griffith, an immigration analyst and former director general for the Citizenship and Multiculturalism branch of Citizenship and Immigration Canada.
New law a 'hybrid' regime that could challenge gathering citizenship data: Griffith
The Canadian government does not appear to have a handle on how many Canadian citizens are living abroad and Griffith notes on his MulticulturalMeanderings.com column that “it will be challenging or impossible for the federal government to accurately predict citizenship acquisition year over year.”
Statistics Canada estimates between 2,953,500 and 5,549,800 Canadians live abroad. About half of those are citizens by descent, that is, they were born abroad to citizen parents from whom they obtained their citizenship. Citizens by birth born in Canada account for 35 per cent of those abroad while naturalized citizens account for 15 per cent of the diaspora.
The amendment stems from a December 2023 Ontario Superior Court ruling that the first-generation cut-off rule was unconstitutional.
Griffith says the move expands “jus sanguinis” or the rights relating to blood.
“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,” he said.
The bill was debated Monday in the House of Commons and is expected to head to committee; it is presently supported by the Liberals, New Democrats and Bloc Quebecois, but has faced questions from the Conservatives.
Vancouver East MP Jenny Kwan noted the decision pointed out that “the judge accepted claims that women are particularly impacted because the second-generation cut-off rule discriminates on the basis of gender, forcing women in their reproductive years to choose between travel, study and career opportunities abroad or passing citizenship to their children.”
However, among those questioning the proposed bill was Brad Vis, the MP Mission-Matsqui-Fraser Canyon.
Vis and the Conservatives have suggested the government should challenge the decision: “Our citizenship is something that is sacred. It is something that needs to be upheld, and a lower court decision should not be the determining factor on a matter of such importance as determining our citizenship," Vis said.
Among concerns Vis raised the spectre of the bill further propagating and benefiting the practice of birth tourism — visiting Canada on a tourist visa while pregnant for the purpose of giving birth and obtaining automatic citizenship for the child via “jus soli,” or “right of soil” laws in Canada.
Close to 1,000 birth tourists in B.C. prior to pandemic
Between April 1, 2019 and March 31, 2020, 868 non-residents of Canada, excluding temporary foreign workers, refugees and international students, paid to give birth in B.C. hospitals alone.
In B.C. those figures dropped significantly as a result of the pandemic and a diplomatic row with China.
“How is it just that a birth tourism baby would be able to pass citizenship on to their grandchildren under the proposed law? That is the big question today. Citizenship would be passed on to the grandchildren of Canadians born here solely for the purposes of obtaining citizenship. For my constituents, that is not just,” Vis said during debate in Ottawa.
“It is very clear that this pathway to citizenship is being abused; this program will only see the numbers increase as the Liberals reduce security checks for visitor visas as well,” said Vis, who otherwise supports the one-generation rule.
To summarize the example of a child of a birth tourist:
Under the current regime, the child born in Canada from parents visiting as tourists will go back to their parents’ country and decades later give birth to or adopt a child, who would become a Canadian citizen as well.
The path to citizenship for future generations born abroad would have ended there, however under the new regime that child can grow up and, as long as they spend 1,095 days in Canada for whatever reason, can have a child with Canadian citizenship bestowed upon them, and so on.
Both Griffith and Vis also have concerns about the 1,095 days spent in Canada not being cumulative, or within a prescribed period, such as the five years for a permanent resident application.
“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,” said Griffith.
“The potential impact of Bill 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,” said Griffith, who points out that 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.”
Griffith pointed out this new pathway is vulnerable to acts of foreign interference.
“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,” said Griffith.
That is a view previously shared by Michael Juneau-Katsuya, CSIS's former chief of the Asia-Pacific.
Juneau-Katsuya told Glacier Media he sees birth tourism as a national security threat. He suggests the People’s Republic of China may document and monitor returning children and utilize them as agents of the communist state should they return to Canada as adults.
As such, the bill appears to extend this risk indefinitely, as streams of foreign-born Canadian families multiply exponentially (so long as they meet the 1,095 day requirement).
An alternative view of birth tourism has been presented by University of Carleton associate law professor Megan Gaucher, who was provided $223,328 from the Liberal government in June 2021 to research “how constructions of foreignness undermine the longstanding assumption that formal legal citizenship is an uncontested condition for membership to the Canadian state and explore how political and public discourse around birth tourism ultimately reproduces settler-colonial imaginaries of ‘good’ familial citizens.”
Griffith has long maintained Canada could tweak its jus soli rights by barring any passing of citizenship when neither parent has anything other than a tourist visa.
