Federal Appeal


Citizenship

QUALIFICATIONS
Grant of citizenship by descent limited to first generation born abroad to Canadian citizens

Applicants’ paternal grandmother was Canadian citizen, but ceased to be Canadian citizen when she became naturalized citizen of United States. Applicants’ father was born in United States and at time of his birth neither of his parents were Canadian citizens. Applicants were born in United States and at time of their birth neither of their parents were Canadian citizens. Citizenship Act (Can.), was amended to extend citizenship to individuals who lost or were denied citizenship. Grandmother’s Canadian citizenship was restored retroactively to date she lost citizenship and father was deemed to be Canadian citizen from time he was born. Applicants applied for Canadian citizenship. Delegate refused to issue citizenship certificates to applicants because they did not meet statutory requirements for citizenship in s. 3(1)(b) of Act. Delegate found that s. 3(3) of Act limited citizenship by descent to first generation of progeny born abroad to Canadian citizens. Applicants’ application for or judicial review of delegate’s decision was dismissed. Judge found that s. 3(3)(a) of Act was intended to cut-off citizenship by descent after first generation born abroad. Applicants also claimed that s. 3(3)(a) of Act violated s. 15 of Canadian Charter of Rights and Freedoms. Judge found that applicants did not have standing under Charter to challenge unconstitutionality of s. 3(3)(a). Applicants appealed. Appeal dismissed. Standard of review was correctness. Required textual, contextual and purposive analysis was conducted and delegate’s interpretation of Act was correct. Section 3(3)(a) of Act operated to limit grant of citizenship by descent to first generation born outside of Canada to Canadian parent and that limitation applied to applicants.

Kinsel v. Canada (Minister of Citizenship and Immigration) (May. 14, 2014, F.C.A., Eleanor R. Dawson J.A., Johanne Trudel J.A., and D.G. Near J.A., File No. A-35-13) Decision at 224 A.C.W.S. (3d) 264 was affirmed.  240 A.C.W.S. (3d) 295.

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