Discretionary Grants of Citizenship

Steven MeurrensCitizenship Applications and Revocations

Section 5(4) of the Citizenship Act, RSC 1985, c C-29 states:

Special cases

(4) Despite any other provision of this Act, the Minister may, in his or her discretion, grant citizenship to any person to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional value to Canada.

Policy

The IRCC website states:

Subsection 5(4) of the Citizenship Act states that despite any other provision of the Act, the Minister may, at his discretion, grant citizenship to any person to alleviate cases of statelessness or of special and unusual hardship or to reward services of an exceptional nature to Canada.

Grants under this subsection are only used in very exceptional cases and each case is considered on its own merit. It is important that applicants appreciate the significance of being conferred a grant of citizenship under this provision and that it should not be used as a means of circumventing the normal citizenship process.

Jurisprudence

In Calleya v. Canada (Citizenship and Immigration), 2024 FC 1624, Justice Roy summarized the law on discretionary grants of citizenship.  He stated:

The purpose of subsection 5(4) is to provide a residual, highly discretionary, ability to grant citizenship. The high threshold and the broad discretion conferred on the Minister were readily acknowledged by my former colleague, Madam Justice Elliott, in Abdellatif, at paragraph 44:

[44] This Court has held that there is a high threshold for the exercise of discretion under subsection 5(4): Tabori v Canada (Citizenship and Immigration), 2022 FC 1076 at para 29, citing Chen v Canada (Citizenship and Immigration), 2012 FC 874 at para 19. Similarly, the discretion of a delegate under subsection 5(4) is broad and the Court will only interfere when the discretion was unreasonably exercised or there was a refusal to exercise that discretion: Tung v Canada (Citizenship and Immigration), 2013 FC 1062 at para 9.

 As noted by Madam Justice Strickland in Tabori v. Canada (Citizenship and Immigration), 2022 FC 1076 at para 30, “cases determined on the basis of s 5(4) rarely reach this Court (Halepota v Canada, 2018 FC 1196 at para 19). However, the paucity of case law in all likelihood reflects that discretionary grants of citizenship made under that provision are made only in very exceptional cases.” In my view, it also reflects the existence of the high threshold for even considering that the discretion should be exercised in any given case. Clearly, subsection 5(4) allows a residual discretion for the Minister to exercise in special circumstances described in the subsection. The discretion is broad, although not unlimited (Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121).

The circumstances under which the discretion may be exercised speak for themselves. The hardship suffered must be special and unusual, and the reward for services to Canada must be of an exceptional value. Applicants must appreciate the significance of receiving citizenship under this provision and understand that it should not be used to circumvent the normal citizenship process. The discretion conferred on the Minister can only be exercised in cases that fall in a category of “special cases” (Grossmann-Hensel at paras 70-71).

Special and Undeserved Hardship

In Grossmann-Hensel, Justice Gleeson noted:

[84] What constitutes “special and unusual hardship” under subsection 5(4) has not been developed to the same degree as the meaning of “hardship” under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. This was noted by Justice James Russell in Ayaz v Canada (Citizenship and Immigration), 2014 FC 701, where he states:

[50] The jurisprudence on “special and unusual hardship” under s. 5(4) of the Act is not as well developed as, for example, the jurisprudence on the meaning of hardship under s. 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. While there is no firmly established test for “special and unusual hardship” under s. 5(4) of the Act, in my view, the following remarks by Justice Walsh in Re Turcan (T-3202, October 6, 1978, FCTD), as quoted by him in Naber-Sykes (Re), [1986] 3 FC 434, 4 FTR 204 [Naber-Sykes] remain valid and serve as a good starting point:

The question of what constitutes “special and unusual hardship” is of course a subjective one and Citizenship Judges, Judges of this Court, the Minister, or the Governor in Council might well have differing opinions on it. Certainly the mere fact of not having citizenship or of encountering further delays before it can be acquired is not of itself a matter of “special and unusual hardship”, but in cases where as a consequence of this delay families will be broken up, employment lost, professional qualifications and special abilities wasted, and the country deprived of desirable and highly qualified citizens, then, upon the refusal of the application because of the necessarily strict interpretation of the residential requirements of the Act when they cannot be complied with due to circumstances beyond the control of the applicant, it would seem to be appropriate for the Judge to recommend to the Minister the intervention of the Governor in Council […]