Legal analysis: Abolishing second-generation restrictions on Canadian citizenship and its implications.
The immigration department has just made an official statement regarding the matter. They did not appeal the court's decision regarding the "first generation" limit on the transfer of Canadian citizenship by blood.
Below is the analysis that Dr. Phan Thanh, a lawyer, sent to us:
On December 19, 2023, the Superior Court of Justice of Ontario ruled on the unconstitutionality of Section 3(3)(a) of the Canadian Citizenship Act in the case brought by Bjorkquist and the parties against the Federal Government. Section 3(3)(a) of the Citizenship Act stipulates that a person born abroad to a Canadian born abroad does not automatically acquire Canadian citizenship if that parent was born outside Canada and acquired citizenship by a grandparent born in Canada (hereinafter referred to as the second-degree restriction). The Court ruled that this provision violated Article 15 on equal rights in the Charter of Human Rights of Canada, which is part of the 1982 Constitution.
According to the Canadian Constitution, equality and other fundamental rights such as freedom of speech and freedom of religion are not absolute. Article 1 of the 1982 Constitution allows certain laws, if they meet certain conditions, to restrict these fundamental rights. However, in the Bjorkquist case, the court ruled that the second-degree restriction violated equality but did not exceed the provisions of Article 1, thus rendering it unconstitutional and invalid. In addition to other technical and legal issues, the court also declared several Canadian citizens to be subject to the second-degree restriction.
The federal government may appeal to the Ontario Court of Appeal, but the ruling has yielded several interesting points. It alleviates concerns for many Canadians born abroad that their grandchildren born overseas will automatically have Canadian citizenship. However, this ruling could also lead to significant repercussions and debate within Canadian society.
First, this ruling opens the door for Canadians born overseas to retain Canadian citizenship even if those generations no longer have strong ties to Canada. Canada is a multi-ethnic country, and a large portion of its population is immigrant. Therefore, the connection between Canadian citizens and the country is largely based on their immigration to study and live there. Expanding the scope of those eligible for Canadian citizenship to include people who have never lived in or had any connection to the country may lead to public disagreement with the court's ruling.
Secondly, countries that allow dual citizenship, such as Vietnam, may have to reconsider their policies if too many of their citizens hold other citizenship. This could affect the political security of those countries. Therefore, the response policies of these countries could cause inconvenience to those who are currently benefiting from dual citizenship.
Third, removing the second-generation restriction could lead to many Canadians who never lived in Canada when they were young returning to Canada in old age to access healthcare, potentially overwhelming the social security system.
The Court of Appeal may have its own assessment of the application of Article 1 of the Constitution to this case. Furthermore, if the case is subsequently appealed, there is a small probability that it will be considered by the Federal Supreme Court of Canada. The effect of the judgment and the appeal process will be updated.
-
Specializations: Business Immigration, Corporate, Commercial, Employment, and Commercial Real Estate Law.
-
Education: PhD in law (University of Victoria, 2018), LL.M. (York University, Osgoode Hall Law School, 2021), LL.M. (Nagoya University, 2013), LL.B. (Hanoi Law University, 2004).
-
Member: Canadian Immigration Lawyers Association, Canadian Bar Association, The Federation of Asian Canadian Lawyers (British Columbia).
-
Teaching locations: Immigration and Citizenship at Queen's University Faculty of Law and University of Victoria.
