Joseph Brean, Canada, March 5, 2012
The law that anyone born in Canada is automatically Canadian is an “outdated” relic from a time when immigrants arrived on a one-way boat ticket, and it leaves Canada’s modern welfare state open to exploitation by “birth tourists,” according to Citizenship and Immigration Minister Jason Kenney.
Known in legal circles by the Latin name jus soli, or right of soil, as opposed to jus sanguinis, or right of blood, the citizenship policy is unique, among developed nations, to Canada and the United States. All other countries that take in immigrants base their citizenship on blood, and require at least one parent to be a citizen, or to have lived there for a certain time, in order to confer citizenship on the child.
“I think [automatic citizenship by place of birth] is outdated in this respect. When we established that legal approach, specifically in the 1947 Citizenship Act, most immigrants, if they came to Canada, they were not going back. People would come by sea, and they would leave behind their countries of origin, and rarely if ever have the chance to go back,” Mr. Kenney said in an interview Monday about his proposal to scrap jus soli by the end of the year.
“With today’s inexpensive and rapid modern travel, someone can fly in for a couple of weeks, have a child and fly out, and otherwise never actually live in the country and have no intention of doing so, but establish a basis for the family to become Canadian permanent residents,” he said. “So it strikes me that times have changed and perhaps we should modernize our approach to reflect the international norm and the vulnerability we have to people who want to cut the corners.”
The issue of birth tourism, or “passport babies,” came to light most recently in reports of a scam in China, in which crooked immigration consultants coach women on how to avoid detection of their pregnancy at the border, and then to lie low until they give birth to an automatically Canadian child, who can then take advantage of Canada’s health care and education, and sponsor his parents when he turns 18.
It is a perennial issue, and previous immigration ministers, Liberal and Tory, have made similar proposals for similar reasons, with little in the way of results. Mr. Kenney said he hears frequent complaints about it, including from hospitals that get stuck paying the cost of a foreign woman’s delivery, and considers it “a pretty blatant violation of Canada’s generosity.”
He said hot spots for birth tourism include Chinese passing through Vancouver, and people from French-speaking African countries or the Middle East passing through Montreal, with the remainder coming from Latin American countries with no visa requirement.
China is of particular concern, especially as its people become more wealthy and keen to put down roots in the West. Births in Hong Kong by mothers from the mainland, for example, doubled from 2005 to 2010, likely motivated by a desire to give their children a Western-style education.
“We don’t have reliable statistics on this because the provinces just don’t keep those numbers. It’s hard to quantify,” Mr. Kenney said. “But my view is that regardless of how often it happens, it undermines the value of Canadian citizenship.”
Mr. Kenney has been active in remaking the immigration system, taking action against people who obtained citizenship by fraud, introducing a new citizenship guide and test, restricting the ability of foreign-born Canadians to pass citizenship to their foreign-born children, and revising the rules for citizenship ceremonies to require all new Canadians to show their face.
But this proposal, while still in the fact-finding stages, has drawn criticism for the hassle it is likely to create, and because it looks like dramatic action to correct a minor problem, or at least a problem of unknown scope.
“Typically, immigration policy under Minister Kenney has been driven by common sense and hard data. This one has neither,” said Vancouver immigration lawyer Richard Kurland, who has tracked the issue of passport babies, and pegs the numbers at a couple of hundred each year, out of 200 million entries to Canada.
He said that because provinces issue birth certificates, and do not ask parents for their immigration status, a Canadian birth certificate will no longer be proof of Canadian citizenship. As a result, passport applications will turn into immigration investigations, and every Canadian will have to prove the status of their parents.
“How’s Canada going to know, based on a birth certificate, whether the person is entitled to their citizenship and passport? They cannot distinguish between people who are born here and didn’t have immigration status, and were visa babies, and you or me. So the only way around this is to collect everybody’s family tree and require proof of the parent’s immigration status at the time of their birth to see if they really qualify for citizenship and a passport,” he said.
Mr. Kenney acknowledged the administrative challenge, but said other countries have found a way to deal with it.
“If the law were to change, we would have to sort out how to interface with the provinces in reporting the immigration status of their parents. Now, this wouldn’t be easy,” he said.
“On the other hand, virtually every other country does it, and it seems to me there must be a relatively simple way to report the immigration status of parents. If someone is here illegally, if they don’t have residency, if they’re under a deportation order, if they’re just passing through as a short term visitor, it seems to me they should not be able to automatically have their children inherit citizenship, especially when they are having the child with the intention of basically circumventing Canada’s immigration and citizenship laws.”
America guarantees the right to automatic citizenship under the 14th Amendment, and the issue of so-called anchor babies has been a major theme of its immigration debates, and led to calls for similar change.
The proposal is also constrained by Canada’s international agreement not to render people stateless, which can happen under blood-based systems in the case of absent or unknown parents. An exemption for this is likely to be written into any change to citizenship law.
Mr. Kurland, however, thinks the headaches will be inevitably deep and long-lasting, all to keep out a relatively small number of fraudsters, many of whom could likely be identified by tightening front-line border entry requirements.
“If you think you’re going to get your passport in ten days so you can go on that vacation, forget about it,” he said.