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Saturday, May 16, 2009

The Immigration Saga

I think the word "saga" maybe minimizes a huge problem. A while back I addressed the fact that, because our daughter will be brought into Canada as a citizen (as opposed to the PRV route) she will be considered a second-class-citizen, in many ways. Should she ever have children outside of Canada, they will not assume citizenship immediately. My grand-children will have to be sponsored and then hopefully assume citizenship after a period of application and waiting. This is huge because the government did not forewarn us adoptive parents of this, when implementing a new legislative bill back in December of 2007, which allowed us to chose the Citizenship route if we desired. Had we chosen the PRV route, our daughter would not have had to face any sort of second-rate status. The new legislation (implementing this second-class status) was passed April 17, 2009.



And all those other emphatic, angry, frustration-venting words.

During an interview with a journalist in and from Hong Kong I had the opportunity to voice the frustrations and concerns this new legislation brings. And, it doesn't only affect us adoptive parents.

Read on...

On April 17, amendments to the Canadian Citizenship Act will come into effect that will have far-reaching implications for many Canadians and their future generations. Under Bill C-37, children born or adopted outside of Canada to Canadian parents who themselves were born or adopted from outside of Canada will no longer inherit Canadian citizenship. This is to say that the second generation born or adopted outside of Canada will not be granted Canadian citizenship by descent. These amendments have provoked anger and confusion amongst many Canadians, particularly in the expatriate and adoption communities.

Bill C-37 was intended to address concerns about “lost Canadians” of the 1947-1977 period and “Canadians of convenience”—people who earn Canadian citizenship to exploit its benefits, but who have little loyalty or non-legal connections to Canada. Examples can be found locally, as many Hong Kongers of means, spooked by the 1989 Tiananmen Square Massacre and its potential implications for Hong Kong’s post-handover future, fled to Canada in the early 1990s to secure Canadian citizenship as a safety net. The “Canadians of convenience” issue was brought to the fore in 2006 when the Canadian government spent $85 million evacuating 15,000 Lebanese with Canadian citizenship during the Israel-Lebanon conflict; an estimated 7,000 of the evacuees returned to Lebanon within a month.

However, the new legislation has ensnared many Canadians residing in Canada and abroad who do not fit these archetypes. One adoption agency describes it as a “sledgehammer…used to kill a flea.” Critics argue that the amendments have effectively created a two-tier system of citizenship, whereby native-born or naturalized Canadians will pass on diminished citizenship to their foreign-born-or-adopted children, who will themselves be unable to pass on their citizenship at all to their own foreignborn-or-adopted children.

Canadians abroad, an estimated 2.7 million people, are struggling to come to terms with Bill C-37’s implications for their children, grandchildren, and further generations. It has forced people to reconsider their life and career plans as they try to reconcile their desire to have children holding first-class citizenship with their imperatives to be abroad. Given their global lifestyles, many expatriates are likely to have children abroad. Veronique Raymond, a Quebecois immigration lawyer working in Hong Kong, feels penalized for seeking international work experience. She had planned to have a child within the next few years, while working abroad, but now fears she will do little more than “pass on a problem to her child.” Furthermore, Raymond sees the Bill as a violation of her legal right to enter and exit Canada freely. The Canadian Charter of Rights and Freedom states: “Every citizen of Canada has the right to enter, remain in and leave Canada.” It would seem that this right is being infringed upon if Canadians need to think twice before going abroad.

The amendments have also drawn ire in the adoption community. Ashleigh Keizer, an upcoming adoptive mother in Vancouver, feels blindsided by Bill C-37. Like other adoptive parents in Canada, she was delighted to hear that under new legislation (separate from Bill C-37), her adoptive child could arrive in Canada as a Canadian citizen. She was told by adoption agencies that there would be no long-term difference between choosing this direct citizenship route over the permanent resident (eventual naturalization) route and was strongly encouraged to take the former. With the introduction of Bill C-37, under the direct citizenship route, her daughter would be considered a first-generation foreignadopted citizen and therefore, disallowed from passing on citizenship to her own child. But through the permanent resident route, the adoptee would be treated just like any immigrant who becomes a naturalized Canadian and therefore, could pass on her citizenship to her children, as they would constitute the first generation. Had Keizer been aware of this implication, she would have obviously chosen the permanent resident route for her daughter to avoid the problem altogether. But it’s too late now for Keizer and many other adoptive families: “There’s nothing we can do about it—we’re too far into the direct citizenship process and there’s no going back.”

Critics have also raised concerns about potential statelessness, as some countries will not automatically grant citizenship to persons born within its borders. While this problem may be resolved if the couple sponsors the child as a permanent resident, the process is highly impractical, as it requires a year of processing time, application fees, and the child to reside in Canada for the majority of that period—impractical if the parents are working overseas. Moreover, it is unclear how the stateless child would travel to Canada in the first place without a passport of any country. Canada is a member of the Convention of Reduction of Statelessness—it will be interesting to see how the new legislation will be reconciled with this fact.

Also, many find the law especially unfair in its retroactivity. While it will not revoke citizenship from anyone who already has it by April 17, Canadians who were born or adopted outside of Canada, who previously could pass on their citizenship to their children without restriction, are now unable to do so if their children are born or adopted outside of Canada. As such, expatriates who gave birth to children overseas have been left reeling, as they never imagined their grandchildren might not be Canadians. Expatriates in Hong Kong and mainland China may be particularly charged about the issue, as second-generation foreign-born children, if unable to inherit citizenship from either parent, will only have Chinese citizenship— less than ideal in its relative inflexibility.

What is also frustrating is that affected persons have no legal recourse. There is no way for first generation foreign-born-or adopted Canadians to reach full-status citizenship, thus avoiding the problem in the first place. By comparison, the United States, the UK, and Australia all have legal mechanisms to allow citizenship by descent. While concerned Canadians feel that citizenship is not something that should be taken lightly, they argue that those affected should have legal recourse to earn full citizenship, should they be able to provide a sufficient link to Canada. The question then arises of how to define that link.

The outrage over Bill C-37 is particularly charged because it has aroused a complicated identity politics: it raises fundamental questions of what it means to be (culturally) a Canadian and what it means to be a Canadian citizen—two matters that are often conflated but which are actually distinct. Reactions to the new legislation depend on the extent to which people feel emotionally and practically connected to Canada. The greatest indignation has come from Canadian citizens who feel strongly “Canadian” in terms of their cultural practices, knowledge or family background and have raised their children accordingly, but whose children or grandchildren will have second-class or no Canadian citizenship. To them, legal citizenship is part and parcel of cultural citizenship.

On the other hand, expatriates who have resided out of Canada for many years and have no intention to return tend not to feel strongly one way or another. To them, cultural citizenship and legal citizenship are distinct concepts. As one expatriate argued in a recent South China Morning Post editorial, knowing the words to the national anthem and that maple syrup is served with pancakes does not constitute Canadian citizenship. L. Walsh writes: “I was born in Canada, grew up and went to school there, paid taxes, contributed to the community and took part in the political system. However, since moving to Hong Kong, I no longer pay Canadian taxes nor go about my daily life there…While I retain my cultural heritage and roots, and have also passed many Canadian traditions to my children, they are also influenced by their environment, Hong Kong. If I wished my children to be totally, 'only and always Canadian', then I would choose to live there…If, as a Canadian citizen, you value the country so much, then you should make this country your home. To be able to give my children Canadian citizenship is a gift, not a right.”

Finally, Bill C-37 appears to go against the modern realities of globalization and transnationalism, as it restricts an internationally mobile Canadian workforce. What does it mean for Canada’s future economic competitiveness if Canadians and members of the Canadian diaspora are limited, alienated, or excluded altogether? Employees may refuse international assignments rather than risk having their children born abroad with second-class citizenship. The intercultural acumen that Canadians develop while abroad and bring back to Canada will be valuable personally and professionally. Canada may also be closing herself off to contributions from Canadians or potential Canadians with valuable international business networks. It should be noted that children of government and military personnel are exempted from this law—an exemption which some see as an acknowledgement that the new legislation puts those working abroad at a disadvantage.

There is currently a lot of confusion over the finer points of the law, but until it has been officially interpreted and applied after it comes into effect, members of the expatriate and adoption communities are worried and angry. So far, the government response in national media has been muted, with a simple restatement of the law rather than a substantial engagement with the counterarguments raised. It remains to be seen how the uproar over the ramifications of Bill C-37 will be resolved.

1 comment:

Mel said...

Wow, good article, but AHHH! It is like killing a flee with a sledge hammer, frustrating! I didn't understand the full implications.....thanks for educating us!