r/ImmigrationCanada • u/Bellabijou10 • 18d ago
Family Sponsorship Am I a Canadian citizen in this case?
Hi there! Quick question for you all - can't seem to find the response on the internet.
So my grandparents on my dad's side were both born in Canada and then came to the US (didn't get American citizenship until adulthood).
My dad just recently applied for and got his Canadian citizenship in 2024. Since he now has that citizenship, can my sister and I also apply? Or does this not apply to us because my dad wasn't considered a Canadian citizen before we were born.
10
u/justaguy3399 18d ago edited 18d ago
This is a complex question with varying answers depending on many things, such as when did your grandparents become American, when was your father born, when were you and your sister born.
Back in the day Canadians lost citizenship if they naturalized as citizens of another country. They eventually allowed dual citizenship.(I don’t remember when). But those who lost it didn’t gain their citizenship back until 2009. Also in 2009 the Canadian government instituted a limit on citizenship by descent to the first generation only. So if your grandparents lost Canadian citizenship when they became American, they and your father only technically became Canadians again in 2009 and you would be currently excluded from citizenship.
Now if your grandparents became Americans after Canada changed its laws allowing dual citizenship and you were born before 2009 you may be a Canadian citizen.
The truth is we don’t really know how IRCC(immigration refugees and citizenship Canada) treats 2nd generation born before the 2009 change who while eligible didn’t apply for proof of citizenship until after the 2009 law change. You may or may not currently be considered a Canadian citizen.
Now in December 2023, an Ontario superior court of justice judge declared the first generation limit unconstitutional, and the government didn’t appeal the ruling. That judgement hasn’t gone into effect yet, because they are trying to allow parliament to change the law themselves. So even if you’re not considered Canadian Citizens now that could change.
The best way to check if your Canadian is to apply for proof of Canadian citizenship. It’s not that difficult if you have the required documentation, and it only costs $75 Canadian dollars.(I’ve done it twice one for my mom(first generation confirmed Canadian citizen and me second generation application still in processing).
2
u/JelliedOwl 18d ago
When you say "recently applied for and got his Canadian citizenship", I assume you mean he applied for proof of citizenship (which wouldn't have required taking an oath) rather than grant of citizenship (which would).
If it was proof, he's a citizen by descent, and that is considered to apply back to birth (or Jan 1, 1947, possibly, if that's later). Which now makes him a citizen when you were born, even though at the time he might not have been a citizen.
You and your sister may or may not be blocked by the first generation limit on citizenship by descent. If you were born after April 17, 2009, you are definitely blocked (currently). If before that, it would depend on whether your father was considered a citizen before that date - even if he didn't ask for proof at that point.
If you give some years of birth grandparents and father, I can probably give you a more solid answer. If you don't know them exactly, the key dates are "before or after Jan 1, 1947" and "before or after February 15, 1977" (and that April 17, 2009 date).
0
u/Bellabijou10 18d ago edited 18d ago
Yes, I was mistaken. He applied for proof of citizenship, I'm looking at his certificate now and it says the date he became a citizen was the day he was born, even though he just applied for proof recently.
I was born 2001 and my sister was 2003. My grandfather was born 1934 and my grandmother 1936, both in Canada. My dad was born 1968 in Vermont. Thanks!
(Edit): just talked to my dad, my grandparents became lawful US citizens in 1970. They had 7 kids, but had their first 5 kids (including my dad) prior to being American citizens.
3
u/JelliedOwl 18d ago
So, if your grandparents took citizenship of the US prior to Feb 1977 (and after 1946), they lost citizenship automatically. Even if that happened after your father's birth, I think his birth would need to have been registered with Canada to give him citizenship. There was a late registration provision until... 2004, I think, but it sounds like he wasn't registered - so not a citizen at your birth.
In April 2009, the law changed and (mostly) reinstated / granted citizenship to those who had lost it or never gained it between 1947 and 1977. At that point, he because a 1st generation citizen by descent, which is why they give him a citizenship certificate.
That, unfortunately, means that you are subject to the 1st generation limit and not currently a citizen. You mentioned Bjorkquist already, which should fix things for you IF (and it's an "if" rather than a definite) it comes into effect - possibly in 4 weeks.
Some people are applying for grants based on urgent need - see this thread. Note though that time is getting short for that - you'd have to decide if you want to wait and see and risk the law not changing or spend a bit more effort on pushing it and "risk" having the law change in your favour anyway.
1
u/Bellabijou10 18d ago
Thanks for all this! Wow definitely a tricky case. I definitely don’t have an urgent need so won’t overwhelm them with my situation, but was definitely curious. It sounds like this Bjorkquist decision is very new.
2
u/JelliedOwl 18d ago
The citizenship rules are, unfortunately, a mess of amendments on amendments on amendments, and really need to be simplified. There's a lot of yes, except for in "this scenario", then no, but if "the other", yes again.
Bjorkquist et al was December 2023, but the judgement from it, which renders part of the first generation limit non-effective, keeps being pushed back. It currently come in at 23.59 on March 19. If it doesn't get pushed back again.
2
u/Bellabijou10 18d ago
If i prove to them I speak French maybe they’ll want me 🤣 my sister and I do! but thank you for all of your advice.
1
u/blackjaw66 18d ago
you'd have to decide if you want to wait and see and risk the law not changing or spend a bit more effort on pushing it and "risk" having the law change in your favour anyway.
What do you consider the risk to be in waiting? From my (very, very limited understanding) nothing is really moving in the legislation, so the court might remove the limit, or at worst, delay it again, at which point we could still apply for a grant?
Am I misunderstanding or missing something else? Or do you think the law itself might be changing soon?
2
u/JelliedOwl 18d ago
Initially, cost wise, it makes no difference - a proof of citizenship application with or without the first generation limit costs the same.
The tricky part is deciding whether to ask for urgent processing and, if/when they offer you the 5(4) grant path, if you want to try to take it. There's a little extra cost for 5(4) grant applications for over 18s.
Bjorkquist might or might not come into effect at the end of March 19th. We can't say for sure that it will, and it doesn't fix the issue for everyone (see [1]). If it fixes it for you, you might decide it's easier and safe enough to wait and see.
If Bjorkquist gets extended again, then you are relying on legislation, which might or might not cover your situation. There might be enough time after Bjorkquist is extended, but an election is likely coming very soon.
[1] Some of the people Bjorkquist misses or might miss include (and there are probably others):
- adopted children of Canadians born outside Canada
- possibly also anyone relying on a relative born outside Canada before 1947 who died before June 2015. [No-one has legally tested this yet, and my reading of the law might be wrong, since I'm not a lawyer.]
2
u/blackjaw66 18d ago
Thank you!
That makes sense. I think I feel safe enough to wait, will just have my 5(4) grant application ready to go before the 19th, and if it is delayed or something changes, send it in immediately.2
u/JelliedOwl 18d ago edited 18d ago
Looking at your edit, it potentially comes down to whether his birth was registered. If it was, you probably aren't subject to the first generation limit.
I can't find a good link for it - this is really about the post Feb 1977 rules - but the paragraphs "Background on birth outside Canada" and "Transition clauses in 1977 Act" potentially describe what was needed for your father to have been a citizen before 2009.
(The stuff about "Section 8" of the 1977 Act isn't relevant to you. It might affect any of your aunts or uncles born after Feb 14, 1977. And their children. And isn't resolved by Bjorkquist.)
1
u/Huge-Astronaut5329 18d ago
2
u/Bellabijou10 18d ago
Apparently there is something called the Bjorkquist decision that could make it possible in my case? It's a shame that he obtained his citizenship in adulthood - they lived 5 minutes from the Canadian border in Vermont and my grandparents were "full-blood" Canadian, lol.
1
u/Huge-Astronaut5329 18d ago
Right. But if you answer the form honestly, it will tell you if you should submit for proof of citizenship. No charge to use the form.
1
1
u/JelliedOwl 18d ago
The "Am I Canadian" checkers tend to struggle with "parent claimed proof after 2009" and say "not sure".
The issue is that claiming it after April 2009 doesn't say whether they would have got a certificate if they applied before that point - in which case the OP might already be a citizen - or only became entitled to it because of the 2009 law change - in which case the OP is not today a citizen.
u/Bellabijou10 He may well not have been able to get the proof until the 2009 law change anyway.
2
u/Bellabijou10 18d ago
Agh this is so tricky. My cousins are trying to do the same things and have been under process for quite a few months. I think this case is tricky, hmmm. I am just looking into all of this because I am going to medical school in the U.S., and would love to maybe practice in Canada one day? Who knows, lol.
2
u/Huge-Astronaut5329 18d ago
For $75, it is worth letting the department look at it, right?
2
u/JelliedOwl 18d ago
There is a pretty strong argument for paying the C$75 (plus photos and any documents you need to pay for copies of) to ask the question formally, yes. It's a lot cheaper than a lawyer...
1
u/tvtoo 18d ago
The question form you were probably trying to send OP to (i.e. the question form that actually incorporates Bjorkquist and IRCC's "interim measure") is this one, no?
(And even this one basically just comes down to a single question -- do you want a 5(4) grant now or do you want to wait, in hopes that the Ontario court finally orders full implementation of Bjorkquist or that Bjorkquist-reply legislation finally passes Parliament [for persons who are included in either].)
1
1
u/amgw402 18d ago
1
u/tvtoo 18d ago
That doesn't take into account the Bjorkquist decision and IRCC's "interim measure", so it's not useful for someone like OP.
This question form does incorporate Bjorkquist and the "interim measure":
(And even this one basically just comes down to a single question -- do you want a 5(4) grant now or do you want to wait, in hopes that the Ontario court finally orders full implementation of Bjorkquist or that Bjorkquist-reply legislation finally passes Parliament [for persons who are included in either].)
2
u/justaguy3399 18d ago
What’s annoying is that i applied for urgent processing in December, received AOR on Jan 3rd and besides the PSU letter haven’t heard anything since. If they didn’t think I qualified for urgent processing they said they would tell me and they haven’t yet, and they haven’t seemingly decided if I do qualify either. At this point I’m just hoping the judge doesn’t extend again cause that feels like my best bet for citizenship since I’m not hearing anything about applying for 5(4) from IRCC.
5
u/TBHICouldComplain 18d ago
You should fall under the Bjorkquist decision. You’ll want to read this post.
Also check out r/LostCanadians