Hello, fellow practitioners! Today’s column deals with obtaining Canadian status for the stateless dependent child of Canadian citizen parents, who is caught by the second generation born abroad rule.
Question:
A child was recently born to Canadian parents in China. Both parents are Canadian citizens, who received their citizenship by descent as a result of being born abroad to Canadian parents.
As per the Citizenship Act, the child can not claim citizenship because he is not the first generation born out of Canada. However, the child cannot receive Chinese citizenship either based on the citizenship law in China.
As per subsection 5(5) of the Citizenship Act:
5 (5) The Minister shall, on application, grant citizenship to a person who
(a) is born outside Canada after the coming into force of this subsection;
(b) has a birth parent who was a citizen at the time of the birth;
(c) is less than 23 years of age;
(d) has been physically present in Canada for at least 1,095 days during the four years immediately before the date of his or her application;
(e) has always been stateless; and
(f) has not been convicted of any of the following offences:
(i) a terrorism offence, as defined in section 2 of the Criminal Code,
(iv) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in subparagraph (ii) or (iii).
I want to know if paragraph (d), which refers to a period of physical presence in Canada, is a requirement. If so, how can we bring the stateless child to Canada with their parents?
Answer:
The child is not currently eligible for citizenship, neither by right nor by grant. However, the child can obtain permanent residence by being sponsored as a member of the family class, and can then apply for citizenship shortly after.
The residence requirement in paragraph (d) of subsection 5(5) of the Citizenship Act is a requirement. The use of the conjunction “and” at the end of paragraph (e) means that all criteria contained in paragraphs (a) through (f) need to be met. This is also confirmed in the operational guidelines:
A citizenship applicant under subsection 5(5) must have been physically present in Canada for at least 1095 days during the four years immediately before the date of the application.
It is the responsibility of the citizenship officer to determine if an applicant has been physically present despite absences from Canada. However, if a citizenship officer is not satisfied that the applicant has been physically present for 1095 days, the citizenship officer will refer the application to a citizenship judge. See the instructions on residence/physical presence.[1]
Therefore, the child is not eligible to apply for citizenship under subsection 5(5). However, the child is eligible to be sponsored by his parents for permanent residence as a member of the family class.
Assuming the parents are eligible sponsors under section 133 of the IRPR, the only potential obvious issue is trying to demonstrate that the sponsors (the Canadian parents) will reside in Canada once the application is approved as required by subsection 130(2). This can be demonstrated by such evidence as resignation letters from their current Chinese employers, job offers from Canadian employers, proof of the sale of any property owned in China, or proof of purchase of any Canadian property, among other things. It is up to the sponsors to prove this point with whatever evidence is available or could be made available, depending on their individual situation.
Once the child becomes a permanent resident, the parents can apply for citizenship for the child under subsection 5(2) of the Citizenship Act, which states:
5 (2) The Minister shall grant citizenship to any person who is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is the minor child of a citizen, if
(a) an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child; and
(b) the person has, subject to the regulations, no unfulfilled conditions under that Act relating to his or her status as a permanent resident.
The definition of “minor” in section 2 of the Citizenship Act means that only those who have not turned 18 years old are eligible under this subsection.
The definition of “permanent resident” in subsection 2(1) of the IRPA is “a person who has acquired permanent resident status and has not subsequently lost that status under section 46.”
The “conditions” referred to in paragraph 5(2)(b) are not encountered frequently, and currently, there are no conditions identified under Canadian law.
[2]If the child is over 18 but under 23 years of age by the time they become landed, then they will have to wait until they meet the physical presence requirement set out in paragraph 5(5)(d) of the Citizenship Act so that they can apply under for citizenship under subsection 5(5).
[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/grant/statelessness.html