History of Canadian nationality law

Imperial and federal legislation, 1868–1914

Under common law, a person born within Her Majesty's dominions became a British subject at birth. The various colonies of the British Empire passed their own laws determining how naturalization as a subject could take place, as well as what status aliens possessed, within their respective jurisdictions. Upon the passage of the Constitution Act, 1867, the Parliament of Canada was given authority over "Naturalization and Aliens", by virtue of section 91(25).

The Aliens and Naturalization Act, 1868 was the first federal Act to be passed, and it provided that persons that had been previously naturalized in any part of the Dominion possessed the same status as anyone naturalized under that Act. In addition:

Aliens could apply for naturalization after three years' residence in Canada.

Alien-born women became naturalized by marriage to a natural-born subject or to a husband naturalized under the Act.

The laws in Nova Scotia and the former Province of Canada that allowed aliens to hold property were kept in force.

The 1868 Act was replaced by the Naturalization and Aliens Act, 1881, which came into force on 4 July 1883. It made the rules allowing aliens to hold property uniform throughout the Dominion, and otherwise standardized the law along the same lines as the Naturalization Act 1870 of the United Kingdom.

Canadian citizens and Canadian nationals, 1910–1947

Canadian citizenship was originally created under the Immigration Act, 1910, which included anyone who was:

1. a person born in Canada who had not become an alien;
2. a British subject possessing Canadian domicile; and
3. a person naturalized under the laws of Canada who had not subsequently become an alien or lost Canadian domicile.

Aliens, as well as all other British subjects, who wished to immigrate to Canada required permission to land. "Domicile" was declared to have been acquired by a person having his domicile in Canada for three years after having been landed therein, excluding any time spent in "any penitentiary, jail, reformatory, prison or asylum for the insane in Canada".

The status of all British subjects in the Empire (whether by birth or naturalization) was standardized by the British Nationality and Status of Aliens Act 1914, which was adopted in Canada by the Naturalization Act, 1914. As a result, the period of residence required to qualify for naturalization was increased from three years to five years.

A separate status of "Canadian national" was created under the Canadian Nationals Act, 1921, which was defined as being any British subject who was a Canadian citizen as defined above, the wife of any such citizen, and any person born outside Canada whose father was a Canadian national at the time of that person's birth.

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 British subjects by birth (coloured blue), and those to naturalized British subjects or citizens (coloured red).

Eligibility of married women

There were complex rules for determining whether married women qualified as British subjects.

Until 14 January 1932, the rule was that the wife of a British subject was deemed to be a British subject, and the wife of an alien was deemed to be an alien. After that date, and until 31 December 1946, the rules were generally as follows:

World War II-Era War Brides

By marrying a Canadian soldier, a woman, if not already British, acquired the status of British subject and Canadian national. If she then landed in Canada, she became a British subject of Canadian domicile.

In addition, Order in Council P.C. 7318 of 21 September 1944 – later replaced by P.C. 858 of February 9, 1945 – 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.

Creation of Canadian Citizenship, January 1947

Canadian citizenship, as a status separate from British nationality, was created by the Canadian Citizenship Act, 1946, which came into effect on 1 January 1947.

Canadian citizenship was generally conferred immediately on the following persons:

a British subject who was born in Canada (and had not become an alien before 1947)

a person other than a natural-born Canadian citizen:

who was granted, or whose name was included in, a certificate of naturalization under any act of the Parliament of Canada and had not become an alien at the commencement of the Act, or

who was a British subject who had acquired Canadian domicile (i.e. five years' residence in Canada as a landed immigrant) before 1947

a British subject who lived in Canada for 20 years immediately before 1947 and was not, on 1 January 1947, under order of deportation

women who were married to a Canadian before 1947 and who entered Canada as a landed immigrant before 1947

children born outside Canada to a Canadian father (or mother, if born out of wedlock) before 1947

In the latter two cases, a "Canadian" was a British subject who would have been considered a Canadian citizen if the 1947 Act had come into force immediately before the marriage or birth (as the case may be).

Where the child born outside Canada was not a minor (i.e. was not under 21 years in age) at the time the Act came into force, proof of landed immigrant status was required to confirm Canadian citizenship.

Acquisition and loss of citizenship under the Act

In addition to those people who became Canadian citizens upon the coming into force of the Act (popularly known as the "1947 Act" due to the year it came into force), citizenship afterwards was generally acquired as follows:

birth in Canada

naturalization in Canada after five years' residence as a landed immigrant

grant of citizenship to a foreign woman married to a Canadian man after one year's residence as a landed immigrant

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 a child born outside Canada to a Canadian "responsible parent" (being the father, if the child was born in wedlock, or the mother, if the child was born out of wedlock and was residing with the mother, if the father was deceased or if custody of the child had been awarded to the mother by court order)

Loss of Canadian citizenship generally occurred in the following cases:

naturalization outside Canada

in the case of a minor, naturalization of a parent

service in foreign armed forces

naturalized Canadians who lived outside Canada for 10 years and did not file a declaration of retention

where a Canadian had acquired that status by descent from a Canadian parent, and who was either not lawfully admitted to Canada for permanent residence on the commencement of the Act or was born outside Canada afterwards, loss of citizenship could occur on the person's 22nd birthday unless the person had filed a declaration of retention between their 21st and 22nd birthday and renounced any previous nationality they possessed.

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.

Extensions of citizenship

The Dominion of Newfoundland joined Confederation on 31 March 1949, and British subjects in Newfoundland acquired Canadian citizenship on broadly similar terms to those applying in the rest of Canada since 1947.

Those defined as Status Indians or "Eskimos" (Inuit) who were domiciled in Canada on 1 January 1947 were granted citizenship on 7 June 1956.

1953 amendment

The Act was amended in 1953 to replace the provisions relating to Canadian citizenship by descent for minors. Section 4(2) was added, which read as follows:

(2) A person who is a Canadian citizen under paragraph (b) of subsection one and was a minor on the first day of January, 1947, ceases to be a Canadian citizen upon the date of the expiration of three years after the day on which he attains the age of twenty-one years or on the first day of January, 1954, whichever is the later date, unless he

(a) has his place of domicile in Canada at such date; or (b) has, before such date and after attaining the age of twenty-one years, filed, in accordance with the regulations a declaration of retention of Canadian citizenship.

1967 amendment

The provision relating to loss of citizenship by naturalized Canadians living outside Canada for more than ten years was repealed on 7 July 1967.

Canadian Citizenship Act, 1976

Citizenship law was reformed by the Canadian Citizenship Act, 1976, which came into force on 15 February 1977. Canada removed restrictions on dual citizenship, and many of the provisions to acquire or lose Canadian citizenship that existed under the 1947 Act were repealed.

Under the new Act (popularly known as the "1977 Act" due to the year it came into force), Canadian citizenship is acquired by:

birth in Canada (except where neither parent is a citizen or permanent resident and either parent is a representative of a foreign government, their employee, or anyone granted diplomatic privileges or immunities)

birth outside Canada to a Canadian parent

grant after three years' residence in Canada

notification in the case of a woman who lost British subject status by marriage before 1947

delayed registration of a foreign birth under the 1947 Act before 15 February 1977 (but this provision was repealed on 14 August 2004).

Canadian citizens are in general no longer subject to involuntary loss of citizenship, barring revocation on the grounds of:

false representation,

fraud, or

knowingly concealing material circumstances.

Section 8 of the Act provides that Canadians born outside Canada, to a Canadian parent who also acquired Canadian citizenship by birth outside Canada to a Canadian parent, will 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 15 February 1977.

2009 amendments

Effective 17 April 2009, the Act was significantly amended.

There is no longer a requirement nor any allowance to apply to maintain citizenship.

Individuals can now only become Canadian citizens by descent if one of their parents was either a native-born citizen of Canada or a foreign-born but naturalized citizen of Canada. This effectively limits citizenship by descent to one generation born outside Canada. Such an individual might even be stateless if he or she has no claim to any other citizenship.

This situation has already occurred at least twice. In one situation, Rachel Chandler was born in China to a father who is a Canadian citizen born in Libya and a mother who is a Chinese citizen. Due to the nationality laws of Canada and China, she was not eligible for citizenship of either country, but, as her paternal grandfather was Irish-born, she acquired Irish citizenship. Another situation occurred to Chloé Goldring who was born in Belgium to a Canadian father born in Bermuda and an Algerian mother. Due to the nationality laws of Belgium, Canada and Algeria, she was not eligible for citizenship of any of those countries and was born stateless. Chloé Goldring was subsequently granted Canadian citizenship.

The second generation born abroad can only gain Canadian citizenship by immigrating to Canada - this can be done by their Canadian citizen parents sponsoring them as dependent children, which is a category with fewer requirements and would take less time than most other immigration application categories.

Foreign-born citizens being adopted in a foreign country by Canadian citizens can now acquire Canadian citizenship immediately upon completion of the adoption, without first entering Canada as a permanent resident, as was the case under the previous rules.

Provision was also made for the reinstatement of Canadian citizenship to those:

who became citizens when the first citizenship act took effect on January 1, 1947 (including people born in Canada prior to 1947 and war brides) and who then lost their citizenship;

who were born in Canada or had become a Canadian citizen on or after January 1, 1947, and had then lost citizenship; or

who were born abroad to a Canadian citizen mother on or after January 1, 1947, if not already a citizen, but only if they were the first generation born abroad.

2014 amendments

On February 6, 2014, a bill was presented in the House of Commons to introduce several changes to the Act, which subsequently received royal assent on June 19, 2014. Several provisions had retroactive effect to 17 April 2009, in order to correct certain situations that arose from the 2009 amendments, with the remainder coming into effect on August 1, 2014, May 28, 2015 and June 11, 2015. Among the Act's significant changes:

Citizenship is granted retroactively to those individuals who were born or naturalized in Canada as well as to those who were British subjects residing in Canada prior to 1947 (or prior to April 1949, in the case of Newfoundland) who were not eligible for Canadian citizenship when the first Canadian Citizenship Act took effect.

The required residence prior to application for citizenship is lengthened to four years (1,460 days) out of the previous six years, with 183 days minimum of physical presence in four out of six years. Residency is defined as physical presence.

Adult applicants must file Canadian income tax returns, as required under the Income Tax Act, to be eligible for citizenship.

Time spent in Canada before being granted Permanent Resident status does not apply towards the residency period

A fast-track mechanism for citizenship is established for permanent residents serving with—and individuals on exchange with—the Canadian Armed Forces to honour their service to Canada.

Knowledge and language requirements are unchanged except that the knowledge test must be taken in English or French.

Authority is provided for revoking or denying citizenship in specified circumstances.

Provision is to be made for the regulation of consultants, as well as for certain anti-fraud measures.

2016 amendments

On February 25, 2016, as a consequence of the Liberal victory in the 2015 election, a bill was presented to the House of Commons to roll back certain changes brought in by the 2014 amendments:

The period required for physical presence in Canada will be reduced from 1,460 days over six years to a total of 1,095 days over the five years immediately prior to submitting an application for citizenship.

The requirement that a person intend to reside in Canada if granted citizenship is to be repealed.

The adult maximum age limit applicable for the requirements to demonstrate adequate knowledge of one of the official languages is to be applicable to those under 55 years of age, rather than by those under 65.

The requirement to file income tax returns is clarified, so that persons must provide such returns for three years within the five-year period before applying for citizenship.

"Statelessness" is added to the available grounds for the Minister to exercise his or her discretion in granting citizenship to any person "to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada."

The prohibition on receiving a grant of citizenship, or taking the citizenship oath, while serving a term of imprisonment is broadened to include being held under any form of incarceration.

The power to revoke citizenship on grounds of national security is to be repealed.

The provision specifying that a person whose citizenship is revoked reverts to being a foreign national is amended to provide that the person's status reverts to that of a permanent resident.

The Minister is to be granted the power to seize or detain any document submitted for the purposes of the Act if there are reasonable grounds to believe the document was fraudulently or improperly obtained or used.

Transitional provisions will provide that certain of the 2014 amendments will be deemed to have never had effect.

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:

Canadians and British nationality

While Canada created Canadian citizenship on 1 January 1947, the British Nationality and Status of Aliens Act 1914 continued to confer British nationality on Canadians until 31 December 1948.

After 1948, Canadian citizens generally lost British nationality unless they had specific ties to the United Kingdom and Colonies. 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.

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.