History of Canadian nationality law
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Canada was the second nation in the then British Commonwealth to establish its own nationality law in 1946, with the enactment of the Canadian Citizenship Act 1946. This took effect on 1 January 1947
The first Commonwealth nation to have done so was the Irish Free State, a Commonwealth member until 1949, which established its own nationality law in 1935.
Under current Canadian law, Canada does not restrict dual citizenship but Passport Canada encourages its citizens to travel abroad on their Canadian Passport, so they can access Canadian consular services.
[edit] Canadian citizens and Canadian nationals (prior to 1947)
Canadian citizenship was originally created under the Immigration Act, 1910, to designate those British subjects who were domiciled in Canada. All other British subjects required permission to land. "Domicile" was defined as having been resident in Canada for five years, excluding any time spent in prisons or lunatic asylums.
A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921, which was defined as being a Canadian citizen as defined above, their wives, and any children (fathered by such citizens) that had not yet landed in Canada.
After the passage of the Statute of Westminster in 1931, whereby each self-governing dominion of the British Empire was henceforth considered equal in status to all the others, with the Crown becoming one that is shared and operating independently in each realm rather than as a unitary British Crown under which all the dominions were subordinate, the monarchy thus ceased to be an exclusively British institution. Because of this Canadians, and others living in countries that became known as Commonwealth Realms, were known as subjects of the Crown. However in legal documents the term "British subject" continued to be used.
Prior to 1947, Canada issued two types of passports: those to Canadian nationals (coloured blue), and those to all other British subjects (coloured burgundy).
[edit] World War II-Era War Brides
By marrying a Canadian soldier, a woman, if not already British, acquired the status of British subject. If she then landed in Canada, she became a British subject of Canadian domicile.
In addition, Privy Council Order Number 7318 (dated 21 September 1944) stated:
"Every dependent applying for admission to Canada shall be permitted to enter Canada and upon such admission be deemed to have landed within the meaning of the said Act ; and where the member of the Canadian Armed Forces is either a Canadian citizen or has Canadian domicile, the dependent shall, upon being landed, be deemed to have acquired the same status for the purposes of the said Act." [1]
This has been interpreted by some to mean that the foreign-born child of a natural-born Canadian serviceman acquired, upon immigration to Canada, the very same status as his father (i.e. natural-born Canadian), without qualification. This issue was key to a decision by the Federal Court in 2006 that concerned the citizenship of a child born abroad and out of wedlock to a WW II-era Canadian soldier (Taylor v. Minister of Citizenship and Immigration). [2] This decision is the subject of an appeal by the Canadian Government.
[edit] Acquisition of Canadian Citizenship (1 January 1947)
In order to acquire Canadian citizenship on 1 January 1947 one generally had to be a British subject on that date. The phrase British subject refers in general to anyone from the UK, its colonies at the time, or a Commonwealth country.
Acquisition and loss of British subject status before 1947 was determined by United Kingdom law, although the Canadian government had the authority to confer British subject status on foreign persons through naturalization. See History of British nationality law
Canadian citizenship was generally conferred on the following persons:
- British subjects born or naturalized in Canada
- British subjects who had resided in Canada as immigrants since 1 January 1942
- British subjects born outside Canada whose father met one of the above criteria and either were aged under 21 on 1 January 1947, or had been admitted to Canada as landed immigrants before that date
- Women who were British subjects married to Canadian men by 1 January 1947
- Those defined as Indians or Eskimos who were domiciled in Canada on 1 January 1947 (did not need to be British subjects)
[edit] Newfoundland
Newfoundland joined Confederation on 1 April 1949, having previously been a separate British dominion. Amendments were made to the Citizenship Act to confer Canadian citizenship on British subjects from Newfoundland from 1 April 1949 on broadly similar terms to those applying in the rest of Canada since 1947.
[edit] Acquisition and Loss of Canadian Citizenship (1947 to 1977)
Canadian citizenship was generally acquired as follows:
- birth in Canada (except in the case of those born to non-British diplomats)
- naturalization in Canada after five years residence as an immigrant
- grant of citizenship to a foreign woman married to a Canadian man after one year's residence in Canada
- grant of citizenship to women who lost British subject status prior to 1947 upon marriage to a foreign man or his subsequent naturalization
- registration of child born outside Canada to a Canadian father (in exceptional cases a Canadian mother)
Loss of Canadian citizenship generally occurred in the following cases:
- voluntary acquisition of another citizenship by a Canadian citizen aged 21 or over while outside Canada
- in the case of a person aged under 21, Canadian citizenship was lost if the responsible parent (usually the father, in exceptional cases the mother) lost Canadian citizenship and the child possessed another citizenship at the time
- naturalized Canadians who lived outside Canada for 10 years and did not file a declaration of retention (repealed 7 July 1967)
- where a Canadian had acquired that status by descent from a Canadian parent, loss of citizenship could occur on the person's 24th birthday unless the person was living in Canada on that date or had filed a declaration of retention
Although Canada restricted dual citizenship between 1947 and 1977, there were some situations where Canadians could nevertheless legally possess another citizenship. For example, migrants becoming Canadian citizens were not asked to formally prove that they had ceased to hold the nationality of their former country. Similarly children born in Canada to non-Canadian parents were not under any obligation to renounce a foreign citizenship they had acquired by descent. Holding a foreign passport did not in itself cause loss of Canadian citizenship.
[edit] Acquisition and Loss of Canadian Citizenship (from 1977)
From 15th February 1977, Canada removed restrictions on dual citizenship. Many of the provisions to acquire or lose Canadian citizenship that existed under the 1946 legislation were repealed.
Under the 1977 legislation, Canadian citizenship is acquired by:
- birth in Canada (except in cases where parents are diplomats of a foreign nation)
- birth overseas to a Canadian parent
- naturalization (grant) after three years residence in Canada
- notification in the case of a woman who lost British subject status by marriage before 1947
- registration in some cases of persons born outside Canada to a Canadian citizen before 15th February 1977 (these provisions were terminated on 14th August 2004).
Canadian citizens are in general no longer subject to involuntary loss of citizenship, barring revocation on the grounds of immigration fraud.
The one exception is section 8 of the Citizenship Act which applies to Canadians born outside Canada to a Canadian parent who also acquired Canadian citizenship by birth outside to a Canadian parent. Such persons lose Canadian citizenship at age 28 unless they have established specific ties to Canada and applied to retain Canadian citizenship.
Children born outside Canada to naturalized Canadian citizens are not subject to the section 8 provisions. Nor is anyone born before 15th February 1977. http://www.cic.gc.ca/english/citizen/retention.html
[edit] Judicial review of provisions of current and previous citizenship acts
There have been a number of court decisions dealing with the subject of Canadian citizenship. A few of the major decisions are:
Glynos v. Canada (1992). The federal court ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship. [3]
Benner v. Canada (1997). The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath). [4]
Canada (Attorney General) v. McKenna (C.A.) (1999). As a result of the existing Citizenship Act, adopted children are treated differently from biological children born abroad to Canadian citizens. The Federal Court of Appeal has indicated that distinctions in the law based on "adoptive parentage" violate the equality rights provisions in section 15 of the Canadian Charter of Rights and Freedoms. Under the existing law, moreover, children adopted by Canadian parents who are living abroad and who wish to continue doing so cannot become permanent residents and, therefore, cannot become Canadian citizens. [5]
Taylor v. Minister of Citizenship and Immigration (2006). The federal court ruled that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad. The ruling is far-reaching in terms of striking down a number of the loss provisions of the 1947 Citizenship Act based on the retrospective application of the Charter of Rights and Freedoms. [6] On 29 September 2006 the Canadian Government announced that this decision would be appealed.
[edit] Canadians and British nationality
While Canada created Canadian citizenship on 1 January 1947, the United Kingdom nationality legislation continued to grant British nationality to Canadians until 31 December 1948.
At this point, Canadian citizens generally lost British nationality unless they had specific ties to the UK & Colonies itself. However, in the intervening period some people acquired British nationality based on ties solely with Canada, while not acquiring Canadian citizenship. These included:
- women from outside the Commonwealth who married Canadian men in 1947 and 1948 who did not register as Canadian citizens before 1 January 1949.
- children born outside Canada to Canadian fathers in 1947 and 1948 who were not registered as Canadian citizens before 1 January 1949.
Additionally, some British subjects connected with Canada did not become Canadians in 1947. This includes children born outside Canada to Canadian fathers where the child was born before 1926 (hence aged over 21 on 1 January 1947) and had not been admitted to Canada as a landed immigrant before 1947.
Under the terms of section 12(4) of the British Nationality Act 1948:
- such persons acquired citizenship of the UK & Colonies (CUKC) on 1 January 1949 on the basis of being British subjects connected with Canada, if they did not have citizenship of, or connections with, another Commonwealth country or Ireland.
- where a person had connections with another Commonwealth country that had not introduced a citizenship law as of 1 January 1949, they acquired citizenship of the UK and Colonies on the date the other country introduced a citizenship law if they did not become a citizen of that country at the time
- A complication arises if the person had a connection with India or Pakistan and such a person may have remained a British subject without citizenship if he did not acquire Indian or Pakistani citizenship.
Persons acquiring CUKC would have retained it upon a later acquisition of Canadian citizenship. However they would only be British citizens today if they had obtained a 'right of abode' in the UK under the terms of the Immigration Act 1971, such as by having a UK-born grandparent. Otherwise they would be British Overseas citizens.
British subjects without citizenship would have retained that status only if they did not acquire a Commonwealth nationality (or Irish citizenship) before 1983, or any citizenship from 1983 or later.
British Overseas citizens and British subjects may register as British citizens if they have no other nationality (and have not lost another nationality since 4 July 2002), but otherwise do not have an automatic right to live in the United Kingdom.
