Adoption Abroad

The 2009 Citizenship Law and Adopted Children

December 10, 2010

The Canadian government has passed a new citizenship law that resolves a variety of issues about Canadian citizenship (Bill C-37). Buried in that law is a provision that has passed unnoticed, until now, which puts limitations on the Canadian citizenship rights of some internationally adopted children. Recent articles in the National Post, the Globe & Mail and the Ottawa Citizen have brought these provisions to the attention of the adoption community.

Although this new law came into effect on April 17, 2009, I hope it is not too late for adopting parents to express their views. Also read Complex Citizenship Laws Anger Adopting Parents). The provisions of the new law are complex, so I have set out a series of questions and answers at the end of this article, which I hope will clarify the finer points of the new rules.

A good way to begin understanding the issues is to read the newspaper articles “Critics Fear Two-Tier Citizenship” and “Citizenship Changes Could Create Inferior Citizens”. For the perspective of Robin Hilborn of Family Helper, see “Canadian law denies citizenship to children of foreign adoptees” http://www.familyhelper.net/news/090129citizenship.html

Essentially the legislation provides that the children of some internationally adopted children will not have a right to Canadian citizenship. In practice, this is likely to affect only a small proportion of all adopted children. What upsets adopting parents, however, is the notion that their children will have a lesser class of citizenship. In effect, the children are being discriminated against. Adopting parents do not want to feel that their children are second-class citizens.

Adopting parents in Canada are losing their tolerance for being discriminated against. Resentment at the inherent discrimination against adopting families built into the EI legislation has been simmering for the past decade (for a detailed description of the discrimination which adopting parents feel about this subject, see our earlier Spotlight, “Adoption in the Workplace”). Now a new law that discriminates against their children is going to have a galvanizing effect on the adoption community.

The Annual Report to Parliament on Immigration, 2008, begins with the following words:

“The Citizenship Act, under which CIC grants citizenship to eligible newcomers, affirms that all Canadians have the same rights, privileges and responsibilities whether they are citizens by birth or naturalization.”

That changed April 17, 2009. In an attempt to solve the problem of Canadian citizenship being handed down generationally to people who don’t actually live in Canada, the government has reduced the citizenship rights of some internationally adopted children, and effectively created a lesser class of citizenship for them. Was this really necessary? It feels like a sledgehammer was used to kill a flea. Could not a more elegant solution have been found to actually deal with the perceived problem?

The Report of the Senate Standing Committee, which reviewed Bill C-37, states:

“Such a distinction would grant citizenship to a first generation born outside Canada while denying it to their children and subsequent generations were they to be born abroad. Such a provision strikes your Committee as arbitrary and unfair.”

The Committee also added: “Rather, the Committee urges the government to ensure that all aspects of new citizenship legislation are Charter-compliant and consistent with Canadian values”.

As a result of concerns by the Immigration Department about the confusion surrounding the new law, it recently issued a clarification.

In a published response to the concerns of adopting parents, the Minister states:

“Critics have entirely missed the point of how changes to our citizenship law, which come into effect on April 17, 2009, will protect the value of citizenship.”

I don’t think that is true. Adopting parents probably do understand the concerns that the government has about protecting the integrity of Canadian citizenship. It is the specific solution, which the government has come up with that they are protesting.

It is an insult to adopting parents to say that their children now have a lesser class of Canadian citizenship. The government needs to rethink these provisions and find a solution that does not put limitations on the rights of citizenship for internationally adopted children. The government should find a solution which fits the actual problem. This article is a call to action for adopting parents. Adopting parents who wish to make their views known to the government should do so immediately. Prior to doing so, however, please read the questions and answers set out below. The law is quite technical and there is already confusion about who the law would apply to. This is not helped by the government’s own website, which is not clear. If, after reading the article and the new rules, additional questions arise that should be asked in the list below, please send them to me and I will add them to the article.

For the purposes of this article, I will use the terms Class A citizenship to refer to full-rights citizenship and Class B to refer to the new, lesser-rights citizenship.

Q1. Who does the new law apply to?
A. The new law applies to adopted children who receive their citizenship abroad, pursuant to the new direct citizenship provisions enacted in Canada on December 23, 2007. [See also Q10 below]

Q2.Who is not subject to the new rules?
A. The new rules do not apply to the following:

(a) adopted children born in Canada;

(b) Internationally adopted children who come to Canada on a permanent resident visa and subsequently obtained Canadian citizenship after their arrival in Canada. Up until now this has been the situation of most (but not all) children adopted overseas and brought to Canada. They will not be affected by the new rule, despite what it says on the Canada Immigration website.
The web posting “New Citizenship Rules” states:
“This limitation will also apply to foreign-born individuals adopted by a Canadian parent. The adopted children of Canadian citizens will be considered to be the first generation born abroad. This means that:
If a person born outside Canada and adopted by a Canadian parent has a child outside Canada, that child will not be a citizen by birth;……..”

This information is misleading. In a clarifying email from the Ministry of Citizenship & Immigration (which doesn’t seem to be posted anywhere at the moment), an official makes it clear that the restriction on obtaining Canadian citizenship only applies to situations described in the above quote and where the parent of the child born outside of Canada originally was granted Canadian citizenship overseas pursuant to the new 2007 direct to citizenship route. This misstatement on the government website has caused some parents to believe that the new law will apply to their children, when in fact it will not.

(c) The new law will not apply to children who would normally fall into the Class B citizenship definition, but whose parent is working overseas with the Canadian government (Federal or Provincial) or serving overseas in the armed forces. Instead, these children will have Class A citizenship. However, children whose parents are working for Canadian corporations, the United Nations, who are on vacation, or who are otherwise travelling outside of Canada do not get this exemption and will have Class B citizenship. This is a distinction which is hard to justify. If you work for one kind of employer your children are Class A citizens, and if you work for a different kind of employer your children are Class B citizens. Surely there is a better way to sort this out.

Q3. What is the most serious consequence of this new law?
A The most serious consequence that is evident at this time is that a child born overseas to an adopted person has a reasonable chance of being a “stateless individual” (this would be the adopting parents’ grandchild). This leads to a number of questions:

(a) Why would this happen? – Only some countries grant citizenship to a child born in their country (Canada and the USA being examples of countries that do that). Many countries rely on the citizenship of the child’s parents or some other criteria. The child would be born stateless if they did not derive a citizenship through either parent and they are also born in a country where birth on soil does not give access to citizenship. As a stateless person, the child would have no obvious way to come to Canada.

(b) Is there a remedy? – A child of a Canadian who was born stateless abroad would have the option of applying for a grant of citizenship on the basis of statelessness. The amended Citizenship Act has provisions for granting citizenship to stateless children of Canadian citizens, but the child must first live in Canada for three years. This stateless child would have neither a passport nor a right to enter Canada, so it is not even clear how the child could travel to Canada to establish residence. One can only hope that there will be a benevolent immigration officer overseas who has empathy for the predicament that the Class B Canadian citizen finds himself in, and will grant the stateless child some sort of visa to come to Canada. This event will be 20, 30 or 40 years into the future. It is hard to predict what the world will look like then in terms of population and pressures on the Canadian immigration system. What will immigration officers say to a Class B Canadian citizen in 30 years who wants to bring their stateless child back to Canada? Adopting parents today

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Filed under: About International Adoption,Adoption Laws

Tags: 2009, Adopted, Children, Citizenship