On March 13, 2025, Immigration Minister Marc Miller announced an important update for "Lost Canadians" – individuals born abroad to foreign-born Canadians.
This group of people has been affected by the "first-generation limit" in the Canadian Citizenship Act which prevented first-generation Canadians born abroad from automatically passing their Canadian citizenship to their own children born abroad.
Background
On December 19, 2023, the Ontario Superior Court of Justice issued a landmark ruling in Bjorkquist et al. v. Attorney General of Canada, declaring the "second-generation cut off" at section 3(3)(a) of Canada's Citizenship Act to be unconstitutional. The Court declared this provision to be of no force or effect but suspended the declaration of invalidity to allow the federal government to pass remedial legislation.
Agreeing that the "first-generation limit" (or in other words, the "second-generation cut off") had unfair consequences to many Canadians whose children were born abroad, the government introduced Bill C-71 in May 2024 to remedy the issues identified in the Bjorkquist decision while upholding the value of Canadian citizenship. However, due to delays in passing the Bill, the Court has granted three extensions of time to the deadline to pass remedial legislation since its decision in December 2023, with the most recent extension set to expire on March 19, 2025.
While the government sought a further 12-month extension of time to the March 19th deadline, in a decision released on March 13, 2025, Judge Akbarali temporarily suspended the deadline until April 25, 2025, to give the government additional time to provide more information on how it plans to mitigate the unconstitutional legislation via interim policy measures while continuing to work on passing the remedial legislation.
Interim Measures for Affected Individuals
On March 13, 2025, Immigration Minister Marc Miller announced interim policy measures to support individuals affected by the "first-generation limit". Under the interim policy, consideration for a discretionary grant of citizenship will be provided to the following groups under section 5(4) of the Citizenship Act:
- Individuals born or adopted before December 19, 2023, who are subject to the first-generation limit.
- Individuals born or adopted on or after December 19, 2023,
whose
Canadian parent had at least 1,095 cumulative days of physical presence in Canada before their birth or adoption (this group will be prioritized for discretionary consideration). - Certain individuals born before April 1, 1949, who are still affected by the first-generation limit.
- Individuals who lost their Canadian citizenship under the former section 8 of the Citizenship Act due to unmet retention requirements.
Questions That Remain
While these interim policy measures demonstrate the government's commitment to ensuring fair treatment of those impacted by the "first-generation limit" during the interim period until it passes permanent remedial legislation, the discretionary aspect of the interim measures mean that not all "Lost Canadians" who apply for a discretionary grant of citizenship will necessarily be approved.
While we do not know the exact criteria that officers will apply when determining whether to use their discretion to grant citizenship under section 5(4), it is likely that some of the criteria used to grant urgent processing to "Lost Canadians" will still apply if an individual impacted by the "first-generation limit" requires a citizenship certificate for any of the following reasons:
- To avoid potential harm or hardship due to race, religion, nationality, sexual orientation, gender identity or expression, or membership in particular groups;
- To move a minor child to Canada who was born outside of Canada and has a Canadian parent;
- To help with a case of statelessness;
- To travel due to death or serious illness of a family member (if unable to get a passport in the individual's other nationality);
- To renounce foreign citizenship by a certain date;
- For employment or education, specifically:
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- To apply for a job;
- To avoid losing a current job; or
- To attend a school, college, or university; and
- To access social benefits such as a pension, health care, or a social insurance number.
If you think you may be eligible to obtain Canadian citizenship under this interim measure, and wish to discuss further, please get in touch with Green and Spiegel LLP.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
