Canada and Birthright Citizenship

Meurrens LawCitizenship Applications and Revocations

Since the adoption of the Fourteenth Amendment in 1868, the United States has had birthright citizenship.  Clause 1 of the 14th Amendment, also known as the Citizenship Clause, provides that:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Canadian law contains a similar principle. Ever since Canadian citizenship was first granted on January 1, 1947, an individual has been considered to be a Canadian citizen if he/she was born in Canada.  This is provided for by section 3(1)(a) of the Citizenship Act, which states that:

3. (1) Subject to this Act, a person is a citizen if

(a) the person was born in Canada after February 14, 1977;

Granting citizenship on the basis of geographic birthplace is known as citizenship jus soli, or “from the soil”. In countries that have citizenship jus soli, or birthright citizenship, it makes no difference what the citizenship or immigration status of the infant’s parents was at the time of birth is (with the exception of children born to diplomats).  For example, if a tourist arrives in Canada on a six-month visa, does not disclose that she is pregnant, and then gives birth in Vancouver six months later, then her child will be Canadian.

Birthright citizenship has become increasingly controversial in the United States because of the phenomenon of “anchor babies”.  Anchor babies are children born to non-permanent residents who subsequently use their child’s status as a means to immigrate. Under both Canadian and American immigration law, the existence of children with citizenship can be a factor in removal.

Also, in the United States, an American child can petition for his/her foreign national parents to become lawful permanent residents once the child reaches the age of twenty-one.  This is similar to the parental sponsorship provisions found in Canadian legislation.

In Canada, it is also possible for a parent to make an application for permanent residence on humanitarian & compassionate grounds on the basis that the parent has a child who is a Canadian citizen, and where that child would experience hardship if removed from Canada.  Indeed, our office has been successful in doing this.

Largely because of the “anchor baby” phenomenon, an increasing number of Republican politicians in the United States have been calling for the abolition of birthright citizenship, or at least holding hearings on the issue.  Prominent senators who have voiced such an opinion include Lindsey Graham, John Kyl, Mitch McConnll, and John McCain.  In the House of Representative, more than half of the House Republican Caucus signed on as co-sponsors to the Birthright Citizenship Act of 2009, which would provide that only children who have at least one parent who is a U.S. citizen, a legal permanent resident, or an undocumented migrant serving in the U.S. military could be granted citizenship if they were born in the United States. According to a recent CBS poll, roughly 47% of Americans support repealing or modifying birthright citizenship.

Although no Canadian politicians have called for a similar repeal of birthright citizenship in Canada (to my knowledge), recent opinion polls regarding the Tamil migrants show a hardening of Canadian attitudes towards immigration, and it is not difficult to imagine a similar debate in Canada arising.

Proponents of repealing birthright citizenship argue that it will reduce illegal immigration and ensure that citizens have allegiance to their host nation.  This is of course one area where the birthright citizenship issue differs in Canada and the United States. In the United States, the issue is intertwined with illegal immigration. Indeed, a recent Pew study has estimated that 8% of newborns in the United States have undocumented parents.  In Canada, however, it is not generally not people without status that give birth in Canada to parents who are foreign nationals. Rather, it is people on visitor visas, as well as refugee claimants. As these individuals at least have status in Canada, the issue is not as intertwined with illegal immigration as it is in the United States, and hence not as controversial.

Opponents of repealing birthright citizenship point out that denying citizenship to people who are born in a country would create an underclass of non-citizens who may also have difficulty in obtaining citizenship in the land from which their parents immigrated. As well,  they maintain that it offends sensibilities of both Americans and Canadians who view their respective nation as being a “nation of immigrants”.

What is interesting about the current debate is that it seems to be occurring in a North American vacuum.  Rarely do commentators ever address the immigration systems of non North-American nations. Indeed, if you read some American commentaries you would think that if America were to repeal birthright citizenship, then it would be the first nation in history to do so.

This is not the case.

Jus soli is currently observed by just 16% of the world’s nations. Major states that grant citizenship based on birth include Argentina, Brazil, Canada, Chile, Mexico, Pakistan, Peru, and the United States. It is generally prevalent in Latin America.

It is not elsewhere. Furthermore, in the last twenty years, many countries that previously granted citizenship by birth have introduced restrictions and have imposed additional requirements. Indeed, Canada and the United States are the only two OECD countries that currently have birthright citizenship.

The United Kingdom abolished jus soli in 1983. A child born in the UK is only deemed to be a citizen of the UK if that child has a parent who is a British citizen or “settled” in the UK. “Settled” means that the parent is a resident of the United Kingdom and has the ride of abode. For children born before July 1, 2006, if only the father meets the citizen or “settled” requirement, then the parents must be married. In such cases, it is possible for the father to petition that the child become a citizen.

Australia, meanwhile, abolished jus soli in 1986. Section 12 of the Australian Citizenship Act currently provides that an individual born in Australia is only Australian if at least one parent is an Australian or a permanent resident. A child born in Australia to foreign nationals and who lives in Australia will acquire citizenship upon his/her 10th birthday (if the child has not already been granted citizenship for another reason). This rule appears to be to ensure that the child has developed connections to Australia. There are special provisions for stateless individuals.

As of 2005, an individual born in Ireland will be entitled citizenship if he/she would not be entitled to citizenship elsewhere. As well, he/she would be an Irish citizen if at least one of his/her parents is:

  • An Irish citizen;
  • A British citizen;
  • A resident of the island of Ireland without any time limit;
  • A legal resident of the island of Ireland for three out of the 4 years preceding the child’s birth – time spent as a student or an asylum seeker does not count.

France, meanwhile, awards citizenship on the basis of double jus soli. An individual born in France is only considered a citizen if at least one parent was also born there. For children born to parents who are both foreign nationals,

  • At age 18 the child will acquire citizenship if he/she had been resident in France for at least 5 years since the age of 11;
  • At age 16 upon request by the child and if resident in France;
  • At age 13 upon request by the child’s parents and if resident if France;

Germany previously never practiced jus soli.  However, it had to modify this position due to the increasing number of descendants of Turkish workers. Now, a child born after January 1, 2000 to non-German parents will acquire German citizenship at birth if at least one parent had a permanent resident permit or had been residing in Germany for at least 8 years. Such children are required to apply to retain their German citizenship by the age of 23.

China, meanwhile, has never had birthright citizenship. The Nationality Law of the People’s Republic of China provides that when a person is born in China, that person is a Chinese national if he or she has at least one parent of Chinese nationality, or if both parents are settled in China and are stateless.

The point of these comparisons is not to argue for one system or another. Rather, it is to point out that there are alternatives, and that Canada and the United States are part of the exception, rather than the norm, in how it maintains a very broad birthright citizenship regime.  Although I personally think that this is a proud example of North American exceptional-ism, there are features in what I shall call the European approach that are interesting.

So what do you think? Should Canada move away from birthright citizenship, and switch to a system found elsewhere? Or, is the current system fine?