Tue | Aug 11, 2020

Immigration Corner | Will my baby get Canadian citizenship?

Published:Tuesday | July 7, 2020 | 12:05 AM
Deidre S. Powell Contributed
Deidre S. Powell Contributed

Dear Miss Powell,

I have a Canadian visa which will expire by the end of the year, and I would like to go to Canada in the summer to see if I should really apply as a skilled worker to live there. The problem is that I am pregnant, and with COVID-19 and the talk of a second wave, I’m concerned that I could get stuck in Canada. What happens if my baby is born there? Will he get Canadian citizenship? I heard about ‘birth tourism’ in Canada. What would be my child’s status if he is born there? How will that affect my visa? Can I stay (in Canada) to take care of him while he goes to school? What are some of the things I should consider? Thank you for your time.

– I.N.

Dear I.N.,

If you are a foreign national and you give birth in Canada, your child will automatically become a Canadian citizen. This is a right under paragraph 3(1)(a) of the Canadian Citizenship Act, irrespective of the status or citizenship of his parents, with the exception of persons born to accredited diplomats.

This right is based on the principle of ‘jus soli’, ‘the right of soil’ or ‘birthright citizenship’. Canada and the USA are two of a handful of developed countries that grant automatic citizenship based on this principle. As the child of a foreign national, the general rule in countries such as the United Kingdom, Australia, Spain, Germany, France, and other European countries is that at least one parent (some specify the father) would need to have citizenship of that country, in order for the child to be granted citizenship in the country of birth.

BIRTH TOURISM

Although Canada does not promote ‘birth tourism’, the concept is not illegal. If you travel to Canada as a tourist and give birth in Canada, you are not breaching the laws and regulations of Canada per se. The issue turns on your responses to the questions at the time of application for the temporary resident or visitor’s visa. Were you pregnant at the time? What was your stated intention for visit? How did you answer the medical questions? The key is that you should not breach the terms under which you were granted a temporary resident visa to enter Canada and are misrepresenting the facts. Misrepresentation has a five-year ban on entry to Canada.

CONSIDERATIONS

In contemplating this trip to Canada during COVID-19, the key factor that you should consider is location, accommodation, support, and the cost of having your child in Canada. While Canada has excellent medical systems and benefits, that is reserved specifically for citizens and authorised residents. What if you have complications with your pregnancy? Will you be able to cover the cost of treatments? While the government will be obliged to treat and take care of its citizen, in this case, your child, who has a birthright, your treatment cost will be your responsibility. Failure to pay this bill could have severe consequences.

RIGHT AND PRIVILEGES OF THE CHILD

A child born in Canada will receive the right to reside and benefit from the social and medical facilities in the province that he is born. Your child will be granted a Canadian birth certificate and have the right to a Canadian passport. Your child will have the right to various medical, social, and educational benefits as a citizen of Canada.

While your child will have access to benefits and services, you will not have equal rights as his mother. You must maintain your immigration status as a temporary resident with limited right to remain in the country. If you find that the time granted for visiting is expiring, you must apply for an extension of time to remain in Canada or risk being deported and refused the right to re-enter Canada. There are, however, several options that could be available for you, and so I recommend that you speak directly with an immigration lawyer. One of the options would be to return to your home country until you have reapplied for a temporary resident visa or apply for permanent residence.

EXPRESS ENTRY AND SPONSORSHIP

You indicated that you are considering applying to become a permanent resident of Canada as a federal skilled worker. That is an excellent route to becoming a permanent resident and, ultimately, a citizen. Individuals who apply under the Express Entry System as a federal skilled worker could have their application being approved in a matter of months. Although COVID-19 has hampered individuals’ ability to get supporting documents, Immigration Refugee and Citizenship Canada (IRCC) and the provinces are still processing applications, including the Federal Skilled Programme, Provincial Nominee Programme and Canadian Experienced Class. They are also still processing temporary resident visas, such as study permit and work permit applications. The key is to ensure that you qualify.

You also have the option to wait until your child is over 18 years old and able to sponsor you under the Parents and Grandparents Sponsorship Programme.

There will be no residency restriction on your child if you need to take him to remain in your home country until he is an adult. He will be authorised to return with you to your home country and travel to and from Canada, without the need to apply for a visa or a permit. Your child is authorised to live in Canada at anytime he chooses. The issue is your child’s care and protection as a minor.

There are many issues to consider with this decision, and therefore, you should book a personal consultation with a Canadian immigration lawyer to assist you with your decision-making processes, applications, and to provide you with additional information.

Deidre S. Powell is a lawyer, mediator and notary public with office in Ottawa, Ontario. Submit your questions and comments to: Email: info@deidrepowell.com. Subject line: Immigration. Find her on Twitter, Instagram, and Facebook. Visit her website at www.deidrepowell.com or call 613.695.8777