Canadian nationality law

European settlement of North America began with the arrival of the first colonists from England and France in the 16th century. The rival empires competed to expand their territorial control until British victory in the Seven Years' War and annexation of French Canada in 1763.[1] Despite the loss of the Thirteen Colonies in 1783,[2] British presence on the continent continued to expand through the 19th century, often in contest with the United States as the two powers raced to settle the Pacific Northwest.[3] British nationality law applied to the North American colonies, as was the case elsewhere in the British Empire. Residents of these colonies and all other imperial citizens were British subjects; any person born in British North America, the United Kingdom, or anywhere else within Crown dominions was a natural-born British subject.[4]

British nationality law during this time was uncodified and did not have a standard set of regulations,[5] relying instead on precedent and common law.[6] Until the mid-19th century, it was unclear whether naturalization rules in the United Kingdom were applicable in other parts of the Empire. Each colony had wide discretion in developing their own procedures and requirements for admitting foreign settlers as subjects.[7]

Naturalization in Britain was achieved through individual Acts of Parliament until 1844, when a more streamlined administrative process was introduced. The North American colonies emulated this system in their own naturalization legislation, which was enacted in all local legislatures by 1868.[8] In 1847, the Imperial Parliament formalised a clear distinction between subjects who naturalized in the UK and those who did so in other territories. Individuals who naturalized in the UK were deemed to have received the status by imperial naturalization, which was valid throughout the Empire. Those naturalizing in colonies were said to have gone through local naturalization and were given subject status valid only within the relevant territory;[9] a subject who locally naturalized in British Columbia was a British subject there, but not in England or New Zealand. Nevertheless, locally naturalized British subjects were still entitled to imperial protection when travelling outside of the Empire.[10]

Married women generally followed the nationality status of their husbands. Upper Canada enacted local legislation in 1849 that automatically naturalized foreign women who married British subjects, mirroring regulations enacted in the UK in 1844. After Britain established marital denaturalization for British subject women who married non-British men in 1870, Canada adapted its rules to match this in 1881.[11] The 1870 regulations provided that any British subject who acquired a foreign nationality automatically lost subject status.[12]

On July 1, 1867, three British North American colonies (the Province of Canada, New Brunswick, and Nova Scotia) united to form the Dominion of Canada.[13] The status of Canadians as British subjects remained unchanged despite the creation of this federation.[14] Federal nationality legislation enacted in 1868 superseded laws of the new provinces; naturalization in one of the provinces became automatically valid in all of them.[15][16] Foreigners were able to naturalize as British subjects in Canada after residing in the Dominion for at least three years, fulfilling a good character requirement, and swearing an oath of allegiance.[17] By 1880, Britain had transferred all of its remaining North American territory to Canada except Newfoundland Colony,[18] which became a separate Dominion in 1907.[19]

The first law defining a "Canadian citizen" is the Immigration Act, 1910.[20] A citizen under this definition did not hold a substantive Canadian citizenship and the term was only a label for those who had the right to enter and remain in Canada; Canadians continued to be British subjects. Under the Act, a Canadian "citizen" was any person born in Canada who had not denaturalized, a British subject domiciled in Canada for at least three years, or an individual naturalized in Canada who had not since lost British subject status and remained permanently resident in the Dominion.[21]

Chinese immigration to Canada began in the 1850s during the British Columbia gold rushes. Growing hostility and anti-Chinese sentiment led to a concerted movement within the Legislative Assembly of British Columbia to restrict Chinese immigration. The provincial legislature attempted to discourage this migration with the Chinese Regulation Act of 1884, imposing an annual $10 fee on every Chinese person resident in the province and a $100 fine on recreational opium use. However, the law was struck down by the Supreme Court of British Columbia for legislating on issues beyond the scope of the provincial government. Laws directly restricting Chinese immigration were passed by the legislature in 1884 and 1885 but similarly struck down by orders in council. Fearing open violence if the situation were to continue, the federal government enacted the Chinese Immigration Act, 1885, which limited the number of Chinese migrants who could land in Canada to one per 50 tons of cargo and imposed a $50 head tax on every Chinese person who entered the Dominion. These measures also applied to British subjects of Chinese ancestry, but not those who were already resident in Canada. The entrance tax was increased to $100 in 1900 and to $500 in 1903.[22]

When Japanese migrants started entering British Columbia in large numbers beginning in 1901, the local legislature attempted to legislate restrictions on this movement, but these measures were again struck down by the federal government in 1902, 1905, and 1907. Treaty obligations stemming from the Anglo-Japanese Alliance made total restriction impossible but the Dominion was able to limit Japanese migration to Canada in most cases with agreement from the Japanese government. Only individuals with government-approved work contracts, agricultural laborers for Japanese-owned farms, returning residents, and domestic workers for Japanese residents would be allowed entry.[23]

Migration from India was also limited beginning in 1908, despite the fact that Indians were British subjects. Any person who landed in Canada from a country other than that of their birth or citizenship could be denied entry into the Dominion. Because there was no direct steamship service from India, this measure directly limited persons from India.[24] Similar measures were created targeting British subjects from Hong Kong.[25] All "Asiatic immigrants" were required beginning in 1908 to hold at least $200 of currency to enter Canada. The 1910 Immigration Act further enabled the federal government to limit the entrance of "immigrants belonging to any race deemed unsuited to the climate or requirements of Canada".[24]

The Imperial Parliament brought regulations for British subject status into codified statute law for the first time with passage of the British Nationality and Status of Aliens Act 1914. British subject status was standardised as a common nationality across the Empire. Dominions that adopted this Act as part of local legislation were authorised to grant subject status to aliens by imperial naturalization.[26][27] A Dominion could define a citizenship for its own citizens, although that status would only be effective within the local Dominion's borders.[28] Canada adopted the common code in 1914, and Newfoundland in 1916.[29]

The 1914 regulations codified the doctrine of coverture into imperial nationality law, where a woman's consent to marry a foreign national was also assumed to be intent to denaturalise; British women who married foreign men automatically lost their British nationality. There were two exceptions to this: a wife married to a husband who lost his British subject status was able to retain British nationality by declaration, and a British-born widow or divorcée who had lost her British nationality through marriage could reacquire that status without meeting residence requirements after the dissolution of her marriage.[30] Minor children whose parents voluntarily lost British subject status by renunciation or acquiring a foreign nationality were considered to have automatically British nationality as well, but could resume their status as British subjects by declaration within one year of reaching age 21.[31]

Canada became an independent member of the League of Nations and the Permanent Court of International Justice in 1920. Each country was able to nominate a candidate to be a judge on this court. It would have been possible for a successful Canadian candidate, as a British subject, to be turned down from the court if a British subject from Australia or another part of the Empire was also selected as a judge. The Canadian Nationals Act, 1921 was enacted to allow Canada to differentiate its own nationals in international bodies. Under this law, a Canadian national was any British subject who qualified as a Canadian citizen under the Immigration Act, 1910.[32]

By the end of the First World War, the Dominions had exercised increasing levels of autonomy in managing their own affairs and each by then had developed a distinct national identity. Britain formally recognised this at the 1926 Imperial Conference, jointly issuing the Balfour Declaration with all the Dominion heads of government, which stated that the United Kingdom and Dominions were autonomous and equal to each other within the British Commonwealth of Nations. Full legislative independence was granted to the Dominions with passage of the Statute of Westminster 1931.[33]

Women's rights groups throughout the Empire pressured the imperial government during this time to amend nationality regulations that tied a married woman's status to that of her husband.[34] Because the British government could no longer enforce legislative supremacy over the Dominions after 1931 and wanted to maintain a strong constitutional link to them through the common nationality code, it was unwilling to make major changes without unanimous agreement among the Dominions on this issue, which it did not have.[35] Imperial legal uniformity was nevertheless eroded during the 1930s; New Zealand and Australia amended their laws in 1935 and 1936 to allow women denaturalized by marriage to retain their rights as British subjects, and Ireland changed its regulations in 1935 to cause no change to a woman's nationality after her marriage.[36] Canada partially reformed its rules on martial denaturalization in 1932; women who had not acquired foreign nationality on marriage were permitted to retain their British nationality.[37]

Prime Minister William Lyon Mackenzie King is presented with his citizenship certificate by Chief Justice Thibaudeau Rinfret after becoming the first Canadian citizen in 1947.

Following the Second World War, growing assertions of local national identity separate from that of Britain and the Empire led the Canadian government to develop a new substantive citizenship status based on a purely Canadian idea of nationhood.[38] This was created with passage of the Canadian Citizenship Act, 1946, which came into force on January 1, 1947. All British subjects who were born, naturalized, or resident for at least five years in Canada automatically acquired Canadian citizenship on that date. British subjects born to a father who himself was born or naturalized in Canada. Women no longer automatically took the nationality of their husbands when they married, but any British subject woman who was already married to someone qualifying as a Canadian citizen when the 1946 Act came into force automatically acquired citizenship on that date. Minor children born overseas to a Canadian father or unmarried Canadian mother who had already been admitted into Canada also automatically became Canadian citizens. All citizens of Canada and any other Commonwealth country remained defined as British subjects under this Act.[39] The Act later became applicable in Newfoundland when it joined Canada in 1949.[40]

All other noncitizens could acquire citizenship by naturalization after fulfilling a general residence requirement and demonstrating proficiency in English or French. Candidates must have continuously resided in Canada for one year immediately preceding an application. Wives of Canadian citizens had no further residence requirement, but all other applicants were additionally required to have been resident in the country for at least four of the preceding six years, for a total requisite period of five years. Applicants who had been domiciled in Canada for at least 20 years were exempted from the language requirement. Successful completion of the naturalization process was dependent on the outcome of an interview with a citizenship judge to verify an applicant's background and fulfillment of the citizenship requirements. Non-local British subjects applying for naturalization were not subject to this judicial requirement.[41]

Children born abroad to a Canadian father or unmarried Canadian mother after the 1946 Act came into force were eligible to became Canadian citizens, provided that their births were registered at a Canadian diplomatic mission within two years. On reaching age 21, these individuals were required to make a formal declaration of their intention to retain Canadian citizenship within one year. If they had acquired nationality of another country by birth or at any point as a minor, they were also required to renounce their other nationalities. Eligible minor children who had not already lawfully entered Canada when the Act became effective were subject to the same conditions for retaining Canadian citizenship on reaching age 21.[42] The time limit to make a declaration of citizenship retention was later extended from one year to three years, before an applicable person's 24th birthday. Alternatively, they would also remain citizens if they were domiciled in Canada on reaching age 24.[43]

Canadian citizens residing overseas who voluntarily acquired a foreign nationality other than through marriage automatically lost their Canadian citizenship. Canadians who became foreign nationals by marriage, who held another nationality by birth, or had otherwise become foreign nationals as minors could retain Canadian citizenship unless they made a formal declaration of renunciation. The 1946 Act further contained extensive measures for revoking citizenship from Canadians who were not natural-born. Individuals who became domiciled outside of Canada for six years, showed disloyalty to the monarch, obtained naturalization through fradualent means, or traded with an enemy nation during a time of war were liable to have their citizenship revoked. Honorably discharged former service members of the Canadian Armed Forces were exempt from the six-year overseas residence limit.[44] The maximum period of absence from Canada was extended to 10 years in the 1950s and later repealed in 1967.[45]

The creation of Canadian citizenship unilaterally broke the system of a common imperial nationality. Combined with the approaching independence of India and Pakistan in 1947, comprehensive reform to imperial nationality law was necessary at this point to address ideas that were incompatible with the previous system.[46] The British Nationality Act 1948 abolished the common code and each Commonwealth country would enact legislation to create its own nationality. British subject was redefined to mean any citizen of a Commonwealth country. Commonwealth citizen is defined in this Act to have the same meaning. British subject/Commonwealth citizen status co-existed with the citizenships of each Commonwealth country.[47] The change in naming indicated a shift in the base idea of British subject status; allegiance to the Crown was no longer a requirement to possess the common status, which would be maintained by voluntary agreement among the various members of the Commonwealth.[48] Irish citizens were treated as if they were British subjects, despite Ireland's exit from the Commonwealth in 1949.[49]

All British subjects under the reformed system initially held an automatic right to settle in the United Kingdom and Ireland.[50][51] Non-white immigration into the UK was systemically discouraged, but strong economic conditions in Britain following the Second World War attracted an unprecedented wave of colonial migration.[52] In response, the British Parliament imposed immigration controls on any subjects originating from outside the British Islands with the Commonwealth Immigrants Act 1962.[53] Ireland had continued to allow all British subjects free movement despite independence in 1922 as part of the Common Travel Area arrangement, but moved to mirror Britain's restriction in 1962 by limiting this ability only to people born on the islands of Great Britain or Ireland.[54][51] Britain somewhat relaxed these measures in 1971 for patrials, subjects whose parents or grandparents were born in the United Kingdom,[53] which gave effective preferential treatment to white Commonwealth citizens.[55]

As a sign of Canada's changing relationship with Britain, British subjects lost voting eligibility for federal elections in 1975. Provincial governments progressively phased out this entitlement until it was fully abolished in 2006.[56] Preferences that were afforded to non-local British subjects in the naturalization process were abolished in 1977. British subject status itself was removed from Canadian law in that year as well, although Canadians and citizens from other Commonwealth countries remain defined as Commonwealth citizens.[57]

By the 1970s and 1980s, most colonies of the British Empire had become independent and remaining ties to the United Kingdom had been significantly weakened. The UK itself updated its nationality law to reflect the more modest boundaries of its remaining territory and possessions with the British Nationality Act 1981,[58] which redefined British subject to no longer also mean Commonwealth citizen. Canadian citizens remain Commonwealth citizens in British law and are still eligible to vote and stand for public office in the UK.[59]

The Citizenship Act 1977 expanded the available pathways to citizenship and allowed more situations to retain it. The retention requirement was abolished for individuals born overseas to natural-born or naturalized Canadians, and any applicable person who had not yet reached age 24 at that point was no longer required to make a declaration of retention;[60] individuals born after February 1953 have not been subject to this requirement. Births overseas also no longer needed to be registered within two years to maintain eligibility for Canadian citizenship.[61] However, persons born abroad to Canadian parents who themselves were born abroad became subject to a retention requirement before age 28. The general residence requirement for acquiring citizenship was reduced to three years and remaining gender imbalances were removed from nationality regulations; citizenship has been transferrable by descent to children through mothers as well as fathers regardless of marital status since 1977. Additionally, automatic denaturalisation of Canadians acquiring foreign nationalities was repealed.[60]

As part of a 1988 agreement with the Japanese Canadian community in compensation for their internment during the Second World War, any individual of Japanese ancestry who was expelled from Canada or had their citizenship revoked between 1941 and 1949 was eligible for a special restoration of citizenship. This right to citizenship also extended to the descendants of applicable persons.[62] The requirement for an interview with a citizenship judge in the naturalization process was largely replaced by the Canadian Citizenship Test in 1995. Applicants who failed this test are still required to be interviewed by a judge, although the rate of successfully passing the test is over 90 percent.[63]

Naturalization requirements became more stringent in 2014, after passage of the Strengthening Canadian Citizenship Act. The general residence requirement was increased to a minimum of four of the preceding six years and applicants became required to be physically present in Canada for at least 183 days per year. The age range for candidates mandated to take citizenship and language tests was broadened to include all individuals aged 14 to 64 (previously 18 to 54) and the language requirement itself became stricter. While candidates were previously screened for language knowledge through their ability to pass the citizenship test, naturalization candidates became required to attain a level 4 rating in a Canadian Language Benchmark evaluation.[64]

When the 1977 Act was enacted, a provision was included that allowed children born abroad to unmarried Canadian mothers (but not fathers) who had not had their births registered within two years an extension to that deadline to register as Canadian citizens. In the 2004 Federal Court case Augier v Canada (Minister of Citizenship and Immigration), it was ruled that the exclusion of children born to unmarried Canadian fathers infringed upon rights of equality granted by the Canadian Charter of Rights and Freedoms. Individuals born abroad to unmarried Canadian fathers before 1977 could apply for citizenship during a limited application period that ended on August 14, 2004. Citizenship granted through this process was not retroactive from birth and was only applicable from the date it was granted.[65]

Following the 2007 implementation of the Western Hemisphere Travel Initiative, Canadian citizens became required to hold Canadian passports when crossing the Canada–United States border. When applying for passports, a large number of individuals who believed themselves to be citizens discovered that they did not actually hold Canadian citizenship due to previous provisions concerning automatic loss under the 1946 Act. Legislation enacted in 2009 addressed this issue by restoring citizenship to specific categories of individuals who had involuntarily lost that status. This group of affected people became known as the Lost Canadians. Citizenship was restored to any person who: had naturalized as a Canadian citizen but resided overseas for more than 10 years before 1967, had acquired foreign nationality through their own or a parent's naturalization, had been born abroad to an applicable parent (married Canadian father or unmarried Canadian mother) before 1977 and did not have their birth registered with Canadian authorities or failed to apply for citizenship retention before age 24, or had been born abroad to a Canadian parent who themself was born abroad after 1977 but failed to apply for retention before age 28. Any person born abroad to a Canadian parent in the second or subsequent generations after the 1977 Act came into force but had not yet reached age 28 on 17 April 2009 was able to retain Canadian citizenship without application. However, citizenship has not been transferrable by descent past the first generation born abroad since that date.[66]

Further changes became effective in 2015 that granted Canadian citizenship to certain groups of individuals who had never become citizens and their descendants. Canadian citizenship was granted to individuals who: were born or naturalized in Canada but lost British subject status before the 1946 Act came into force, were non-local British subjects ordinarily resident in Canada but did not qualify as Canadian citizens when that status was created, were born outside Canada in the first generation to a parent in either of the preceding categories, were born outside Canada in the first generation to a parent who did become a Canadian citizen when the 1946 Act became effective but who themself did not acquire citizenship, or were a foreign-born adoptee who was adopted before 1947 by a parent who became a Canadian citizen and who qualified to pass citizenship by descent. Any person who voluntarily renounced British subject status or had it revoked did not qualify to receive citizenship by this special grant.[67]

Nearly all individuals born in Canada receive Canadian citizenship by birth,[68] including those who were born in Canadian airspace, internal and territorial waters,[69] and Canadian-registered ships and aircraft.[70] The only exceptions are children born to two foreign parents with at least one who is employed by a foreign government, an employee of a foreign government, or an organization with diplomatic immunity.[71] Abandoned children found before the age of seven are assumed to have been born in Canada, unless contrary evidence is found within seven years of discovery.[72]

Children born overseas are Canadian citizens by descent if either parent is a citizen otherwise than by descent (meaning by birth in Canada or naturalization).[73] Citizenship by descent is limited to only one generation born outside of the country,[74] other than children or grandchildren of members of the Canadian Armed Forces.[75] Adopted children are treated as if they were naturally born to the adopting parents and are subject to the same regulations regarding birthplace and descent.[76][77]

New citizens taking the oath of citizenship at a 2019 citizenship ceremony

Foreign permanent residents or status Indians over the age of 18 may become Canadian citizens by grant after residing in Canada for more than three years.[78][79] Candidates must be physically present in the country for at least 1,095 days during the five-year period immediately preceding their applications.[78] This requirement may be partially met by time spent within the country before acquiring permanent residency; applicants may count each day within the preceding five-year period that they were present in Canada as a temporary resident or protected person as half a day of physical presence for this condition, up to a maximum of 365 days.[80]

Applicants must have filed income taxes for three of the preceding five years,[81] and those between the ages of 18 and 54 must additionally demonstrate proficiency in either the English or French language and pass the Canadian Citizenship Test.[82] Minor children under the age of 18 who have a Canadian parent or are naturalizing at the same time as a parent are not required to fulfill the physical presence or tax filing requirements, but those applying separately are subject to those conditions.[83] Successful applicants over the age of 14 are required to take an oath of citizenship.[84]

Permanent residents in the Canadian Armed Forces may alternatively fulfill the physical presence requirement with 1,095 days of completed military service during the preceding six-year period.[85] Foreign military servicemembers attached to the CAF with an equivalent amount of completed service time are exempt from holding permanent residence or filing income taxes.[86] Stateless individuals under the age of 23 who were born overseas to at least one Canadian citizen after 17 April 2009 and meet the 1,095-day physical presence requirement for a four-year period may also be granted citizenship.[87]

The Minister of Immigration, Refugees and Citizenship has discretionary power to waive language and citizenship test requirements for any candidates in compassionate circumstances, and the citizenship oath requirement for applicants with mental disabilities. The Minister also may grant citizenship extraordinarily without any requirements to persons who are stateless, subject to "special and unusual hardship", or have made exceptional contributions to the country.[88] These atypical grants have been conferred more than 500 times since 1977, often on athletes competing for Canada internationally.[89] The Parliament of Canada occasionally bestows honorary Canadian citizenship on exceptional foreigners, but this distinction is symbolic and does not grant awarded individuals substantive rights in Canada.[90]

Before 2015, the physical presence requirement was 1,095 days within a four-year period. Between 17 June 2015 and 11 October 2017, this was extended to 1,460 days within a six-year period, with an additional presence requirement of 183 days per year in four of those six years. Time spent within the country as a non-permanent resident was not counted toward the stricter presence requirements. The age range of applicants subject to language and citizenship tests during this regulatory period was between the ages of 14 and 65.[91]

Canadian citizenship can be relinquished by applying for renunciation, provided that the applicant already possesses or will possess another nationality.[92] Individuals who automatically acquired citizenship in 2009 or 2015 because of amendments to nationality law in those years have a special route for renunciation that only requires that they are citizens of another country and costs no fees.[93]

Former citizens who renounced their nationality may subsequently apply for nationality restoration, after reacquiring permanent residency and being physically present in Canada for at least 365 days during the two-year period preceding their applications. They must also have filed income taxes for the prior year.[94] Individuals who had their citizenships revoked are ineligible for nationality resumption and must follow the naturalization process instead.[95]

Citizenship may be revoked from individuals who fraudulently acquired it,[96] and renunciations may be similarly rescinded from persons who provided false information during that process.[97][98] The Federal Court holds decision-making power for all revocation cases, except where the individual in question specifically requests the IRCC Minister to make that decision.[98] Additionally, between 28 May 2015 and 19 June 2017, Canadians holding another citizenship who were convicted of treason or terrorism were liable for potential citizenship revocation.[98][99]