“This law has destroyed families”: Why foreign-born Canadians are suing the federal government over its citizenship policy

In 2009, Stephen Harper’s Conservative government made an amendment to the Citizenship Act. Known as the second-generation cut-off rule, it means that the children of foreign-born Canadians—that is, those born abroad to Canadian parents—who are also born abroad aren’t automatically eligible for citizenship. Without citizenship, access to health care, education and employment becomes arduous, to say the least. The amendment was meant to prevent “Canadians of convenience,” a term coined by the Conservative government to refer to citizens who live elsewhere and have no real connection to Canada. “There’s nothing convenient about our citizenship,” says Emma Kenyon, a foreign-born Canadian whose son was born in Hong Kong. She and her husband, along with six other families, are taking the federal government to court, arguing that the rule is discriminatory. “We’ve all lived in Canada for decades,” says Kenyon. “We’ve done all our schooling here, we’ve worked here, our families are here. We’re Canadians through and through.” We spoke to Kenyon about how the rule has affected her family.

Tell me about your background.
I was born in Tokyo. My parents were living there because of my father’s job at the Bank of Nova Scotia, and we returned to Canada when I was six months old. Besides a few years in the UK, I grew up here, in Toronto and Montreal, and did all my education in Canada, from elementary school to my master’s degree at the University of Ottawa. That’s where I met my husband. He was born in New York—his parents were there for his father’s public relations work. They moved around a bit, living in the US and the UK before returning to Canada permanently when he was nine. We both inherited Canadian citizenship from our parents.

But then you and your husband also had a baby abroad.
We both studied international affairs and always wanted to live elsewhere for a bit. At the end of 2016, we went to Hong Kong, and we ended up staying for six years. I worked for an insurance company, and my husband worked for a bank. We got married there in 2018 and started trying to get pregnant. After a year, we saw a fertility doctor who said we’d have to do in vitro fertilization. On our second round, I got pregnant with a baby girl, but we lost her at 22 weeks. It was devastating. We eventually did a fresh round of IVF, and our son was born in Hong Kong in December 2021.

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The federal government’s position is that having children abroad is a “personal choice.” Did you consider coming home to Canada at any point?
I wanted to, but with Hong Kong’s quarantine measures, it was impossible. We would have had to pay for a three-week hotel quarantine—we’re talking thousands of dollars—plus flights. If you tested positive, you’d be sent to a government quarantine camp until your antibodies reached a certain level. Parental leave is really short in Hong Kong, so I would have had to take additional unpaid time off or maybe quit my job altogether. On top of that, vaccines weren’t available yet. I would have been flying unvaccinated on the way to Canada, and my newborn and I would both have been unvaccinated on the flight back to Hong Kong. I didn’t want to risk it, especially after what we’d been through. Plus, as non-residents, we wouldn’t have been eligible for health coverage until we reestablished residency. I would have been uninsured, receiving medical care from a doctor—if I could find one—who didn’t know me or my history. And my son and I would have been separated from my husband, who had to stay in Hong Kong for work. So, yes, I made a decision—but a choice between two terrible options isn’t much of a choice.

And China doesn’t confer citizenship on birth, so your son was born stateless. He’s a year and a half old now. What’s his current status?
Ultimately, he was able to get Canadian citizenship, but it came down to luck and privilege. After being away from our families for so long, we decided to come back to Canada permanently in 2022. Our son was only able to fly because Hong Kong happens to have a special passport for people who are stateless—not many places do—and we could afford to hire a lawyer who helped fast-track a visitor’s visa for him. Our plan was to apply for permanent residency on arrival. Then, someone who advocates for people in our situation got in touch and said he could help us get a discretionary grant of citizenship for special circumstances. It’s an avenue I’d looked into previously, but the Minister of Immigration, Refugees and Citizenship’s office stopped answering my emails. This incredibly kind stranger got our application in front of the program director and a senior analyst, and it was approved quickly. But, without him, our son would likely still be stateless.

And what would that have meant?
He would not be guaranteed access to health care or travel documents. His application for permanent residence would be ongoing—the average wait time is about 27 months. There are other people in our situation whose children’s applications have been denied. Sometimes the reason the government gives is that it doesn’t believe applicants really plan to stay in Canada. This amendment has destroyed families who have spent years and years trying to reunite—parents with children, families with grandparents.

The government says there’s no right to citizenship guaranteed in the Canadian Charter of Rights and Freedoms. What are the grounds for your lawsuit?
Our challenge is that our Charter right to mobility—to be able to enter and exit the country freely—is being violated and that we’re being discriminated against based on our place of birth, which we had no control over. The amendment also violates the Charter on the basis of sex discrimination.

How so?
It bases citizenship decisions on where a mother is when her child is born, but the father’s whereabouts aren’t an issue—he can be wherever he wants. So the effects of the law are unequal. The government’s advice is to “just come home and have the baby,” but I need to work and maintain my salary. The government’s position suggests that it doesn’t really think of women as equal earners.

Now that your son is a citizen, why did you decide to move forward with the lawsuit?
We joined the lawsuit while I was pregnant but have seen it through because we believe the law is wrong and should be changed. My citizenship is still second-tier compared with that of Canadians who are born here or immigrants who are naturalized. The way it happened for my son—through a lucky encounter with a good samaritan—is not the way it should have to be. 

How would you like to see the law changed?
We’re suggesting multiple possible remedies. The government could repeal the amendment altogether, or it could ask that individuals prove they have a “substantial connection” to Canada—for instance, if you’ve lived here for a certain number of years, as my husband and I have. That’s how it works in the US and the UK.

What do you think the chances are that the ruling will be in your favour?
I’m optimistic. Our lawyers presented a very strong case at the hearing last week. Now, we wait for the judge’s decision, which could take a couple of months. This is a nonsensical law, and you just have to hope that nonsensical laws get changed.

This interview has been edited for length and clarity.