What is the Citizenship of the Children of Diplomats Born in Canada?

Canadian citizenship law provides that a person is generally a Canadian citizen if they are born in Canada.  Since 1952, however, there has been an exception to those who are born in Canada if neither of the child’s parents are Canadian citizens or permanent residents and if either parent was, at the time of the child’s birth:

  • a diplomatic or consular officer or other representative or employee in Canada of a foreign government;
  • an employee in the service of one of the people listed above; or
  • an officer or employee of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization who benefits from diplomatic privileges and immunities in Canada.

(While the precise wording has changed over time, the above restrictions have remained more or less consistent.)

Diplomatic Immunity is Critical

In Vavilov v. Canada (Citizenship and Immigration Canada), 2017 FCA 132, the Federal Court of Appeal answered the following certified question:

Are the words “other representative or employee of a foreign government in Canada” found in paragraph 3(2)(a) of the Citizenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities?

The Federal Court of Appeal answered in the affirmative. In doing so, it found that the reason why Canadian citizenship law prohibits the children of diplomats from becoming Canadian citizens at birth is because persons who have diplomatic privileges and immunities do not have duties and responsibilities to Canada and are not subject to all Canadian laws.

The Vavilov case, which as of writing is currently before the Supreme Court of Canada, is an interesting one, and specifically deals with the issue of whether children who are born in Canada to parents who are foreign spies are Canadian.  Because such individuals do not benefit from diplomatic immunity, the Federal Court of Appeal found that they are citizens.