On December 19, 2023, the Ontario Superior Court of Justice decided in a landmark ruling, Bjorkquist et al. v. Attorney General of Canada, that the “second-generation cut-off” rule at section 3(3)(a) of the Canadian Citizenship Act is unconstitutional, and as of June 19, 2024 will be of no force and effect. The impact of this ruling is detailed by Green and Spiegel here. On May 23, 2024, the Honourable Marc Miller, Minister of Immigration, Refugees and Citizenship, tabled Bill C-71, an Act to amend the Citizenship Act (2024), in order to address the Bjorkquist decision and restore citizenship rights to lost Canadians.
The new legislation, which passed its first reading in the House of Commons today, proposes the introduction of a Substantial Connection test, in order for Canadian parents born abroad, who acquired citizenship by descent, to pass their citizenship to their children or adopted children born abroad following its passage. This test requires the Canadian parent to demonstrate they have accumulated at least 1,095 days in Canada prior to the birth or adoption of their child. The substantial connection test does not however appear to apply retroactively to those born abroad prior to its passage; in effect, this will remove the second generation limitation at s(3)(3)(a), without requiring those individuals to demonstrate a substantial connection to Canada.
The Honourable Minister Marc Miller has announced this bill as the Government’s attempt to “extend citizenship by descent beyond the first generation in a way that is inclusive and upholds the value of our citizenship.” Although Bill C-71 has yet to receive royal assent, barring and substantial changes the new criteria will open a pathway to Citizenship for many individuals previously barred by the 2009 amendments implementing the second-generation cut-off. Once passed, we expect IRCC will release updated guidance on the application process, including the type of evidence which will be acceptable in order to show a parent’s substantial connection to Canada. Given the deadline of June 19, 2024 candidates should not have to wait long for this further information.
In order to discuss the various immigration options that might be available to you or your family, we invite you to contact us for more information.
