The Loss Under Section 8

Last Updated on August 29, 2016

The authorities repealed the provisions of loss under section 8 on April 17, 2009. As such, only people born between February 15, 1977 and April 16, 1981 are subject to loss when they turn 28 years of age. These individuals needed to make applications for retaining their citizenship before their 28th birthdays. Only after the authorities approved their applications would they continue to remain Canadian citizens.

The loss under the provisions of section 8 will occur even if the person resided in Canada. As such, the people residing in Canada who ceased to be citizens prior to April 17, 2009 under section 8 will have no legal status in Canada. People who ceased to be citizens under the provisions specified in section 8 have the ability to apply for permanent resident status. Therefore, they can resume their citizenship subsequently based on the provisions specified in subsection 11 (1) of the Act.

The Requirements of Section 8

The provisions of section 8 of the Citizenship Act prescribed three requirements for the retention of citizenship. Hence, people would need to:

Register as citizens
- Prior to April 17, 2009, people born outside Canada in the second generation were automatically Canadian citizens at birth
- For second generations born outside Canada, the approved application for proof of citizenship fulfilled the registration requirement of subsection 8 (b) of the Citizenship Act
Have residences in Canada or have substantial connections with Canada and,
- For retaining their citizenships, people would need to have:
  - Resided in Canada for one year immediately before applying for retention or,
  - Have established substantial connections with Canada after the age of 14 years and before the age of 28 years
  - Residence in Canada
    - Applicants seeking retention would need to have resided in Canada for at least one year immediately before making the application
    - Hence, the applicant must have moved to Canada by the day prior to turning 27 years old at the very latest
    - People arriving on after their 27th birthdays would not be able to meet the minimum requirement of one year residence in Canada prior to their 28th birthdays
    - For instance:
      - An applicant subject to section 8, whose 28th birthday is August 01, 2007, moves to Canada on July 31, 2006. This person would need to make an application for the retention of citizenship on July 31, 2006.
      - Applicants subject to section 8, whose 28th birthday is July 01, 2007, moves to Canada on March 01, 2002. This person would need to apply for retention of citizenship one year after arriving i.e. March 01, 2003. In addition, this person would need to apply for retention anytime between March 01, 2003 and April 16, 2009, as long as the person has continued to reside in Canada for one year immediately before making the application.
        
        It is worth highlighting that subsection 8 (b) of the Act specifies that applicants would need to reside in Canada for at least one year immediately before the date of the application. Based on the Minister’s direction, the officers consider residence to denote physical presence in Canada unless certain exceptional circumstances apply e.g. refer to CP 5 – Residence.
        
        Existing Federal Court jurisprudence applies to the evaluation of residence in Canada during the period specified in the Act as the relevant period of residence
        
        As such, in accordance with established case law, applicants, in certain cases, might be absent from Canada during this period and still end up meeting the residence requirement
        
        Similarly, the provisions in paragraph 6 (3) (e) of the Regulations specify that the applicants would need to submit the appropriate evidence for establishing residence in Canada along with the application for retention
        
        This evidence would need to clearly indicate that the applicant has resided in Canada for at least one year immediately before the date of the application
      - Applicants subject to section 8, whose 28th birthdays fall on July 01, 2007, move to Canada on March 01, 2002. Thereafter, they reside in Canada until May 01, 2004, after which they return to their countries of birth or move away to live in other countries. These applicants applied for retention on October 01, 2004.
        
        In this scenario, the applicants lived in Canada for at least one year, but it was not the year immediately before the application i.e. October 01, 2003 to October 01, 2004
        
        Therefore, these applicants do not meet the residence requirement for retention
        
        However, these applicants might be able to satisfy the substantial connection with Canada criteria
  - The Evidence of Residence
    - Documents that applicants could submit as proof of residence could include, but are not confined to:
      - Employment records or evidence of business transactions in Canada (for self-employed individuals)
      - School records
      - Rental agreements, receipts or leases
      - Mortgage papers or land transfer documents
      - Property tax bills or receipts, residential property assessment notices and notices of assessments
      - Bank or credit card statements confirming transactions made in Canada
      - Receipts confirming purchases made in Canada e.g. signature for goods received, utility bills, telephone bills, insurance policies etc.
      - Stamps in passports or travel documents and,
      - Provincial or territorial health records, letters from health professionals confirming dates of visits
  - The Time Not Counted Towards Residence
    - Time spent on probation, on parole or confined in a penitentiary, jail, reformatory or prison does not count as periods of residence
    - This is in accordance with the provisions specified in section 21 of the Citizenship Act
  - The Substantial Connection with Canada
    - Another means by which applicants could meet the retention criteria is by establishing a substantial connection with Canada
    - For instance, people who came to Canada some time after February 15, 1977 but did not stay and did not apply for retaining after one year’s residence could still have sufficient and specific connections with Canada that satisfy the requirements of subsection 8 (b) of the Act regarding a substantial connection with Canada
    - The provisions in section 16 of the Regulations specify the criteria for determining substantial connections with Canada such as:
      - Employment for at least two of the four years immediately prior to the application:
        
        In the public service of Canada or a province
        
        As a member of the Canadian forces or the Royal Canadian Mounted Police (RCMP) or,
        
        As Canadian representatives to the United Nations or one of its affiliated agencies or,
      - Adequate knowledge of Canada, of one of the official languages of Canada (English or French) and the responsibilities and privileges of citizenship and, ever since the individuals turned 14 years of age, have spent more than one year in Canada with members of their family or in attendance at recognised secondary or post-secondary educational institutions
    - Citizenship judges would need to be clearly satisfied that the evidence used for establishing a substantial connection with Canada shows that the applicants:
      - Held employment as specified in the provisions listed in 16 (a) or,
      - Were present in Canada as specified in the provisions listed in 16 (b)
    - The judges would also need to determine whether the applicant met the prescribed language and knowledge requirements specified in the provisions listed in 16 (b)
  - The Acceptable Proof of Substantial Connection
    - The acceptable proof of substantial connection could include:
      - Employment records
      - School records
      - Sworn affidavits from family members e.g. parents, brothers, sisters, aunts, uncles or grandparents etc. describing the circumstances of residence in Canada (including the when, where and with whom the applicants lived)
      - Provincial or territorial health records, medical records and letters from doctors
      - Birth or marriage certificates (in case the applicant gave birth or got married during the relevant period in Canada)
    - Officers would evaluate the criteria for determining whether applicants have an adequate knowledge of English or French based on questions the Minister has prepared
    - For more details on this, the officers would need to go through:
      - CP 4, Section 5: Assessing Language and Knowledge – Written Test and,
      - CP 4, Section 6: Assessing Language and Knowledge – Oral Interview
    - It is worth clarifying that there is no waiver given to section 8 applicants based on the age of the applicants
Make applications for retention
- For retaining their citizenship, people subject to the provisions specified in section 8 of the Citizenship Actwould need to make formal applications in the prescribed form
- They would need to submit supporting documents that establish citizenship and compliance with residence requirement or a substantial connection with Canada along with their applications
The process for application for retention at the Case Processing Centre in Sydney (CPC-S)
- The Case Processing Centre in Sydney (CPC-S) would typically receive applications for retention directly from applicants or through missions abroad or local offices
- Officers at the Case Processing Centre in Sydney (CPC-S) would need to review the files for:
  - Confirming that the applicants were citizens
  - Researching any previous records pertaining to the current applications and,
  - Determining if the applications have their basis on residence or substantial connections
- After establishing the citizenship, the officers would need to refer the file for decision-making to citizenship judges at the local offices or to the missions
The decision making applications for retention
- Citizenship judges typically make the decision for approving or refusing the applications for retention
- For applicants residing in Canada, the judges in the local office would need to:
  - Evaluate the applications
  - Conduct interviews (if necessary) and,
  - Make the decision for approving or refusing the retention of citizenship
- For applicants residing outside Canada, the senior citizenship judges would need to:
  - Conduct telephonic interviews for testing the language and knowledge of the applicants and,
  - Obtaining any additional information necessary for making a decision
- In many cases, the authorities would administer these interviews at the mission where the staff will verify the identity of the applicants
- The authorities typically make the decision to approve or refuse the applications within 60 days – this is in accordance with the provisions specified in section 14 of the Act
- The officers would typically advise the applicants in writing, about the decision of the judges
- It is worth mentioning that the applicants and the Minister have the right to appeal the judge’s decision to the Federal Court – Trial Division
The approval of applications for retention
- Once the judges approve applications, the system will refer these applications to officers delegated under section 8
- These officers would need to approve the issuance of the certificates
- Situations could arise where the officers might believe that the judge might have made an error or incorrectly applied Federal Court jurisprudence
- In this scenario, the Minister has the authority to appeal the judge’s decision
The proof of retention
- The retention certificate serves to confirm that the individual has retained their Canadian citizenship
- The authorities will typically issue a new citizenship certificate at the same time as the retention certificate
- As such, the applicants would need to surrender all previously issued certificates
The refusal of applications for retention
- The citizenship judges would need to provide written reasons for the refusals based on which they refused applications
- The letters would need to outline the process for initiating an appeal of the judge’s decision as well
- In some cases, the authorities might have prepared citizenship certificates in conjunction with the applications under section 8
- In this scenario, the authorities would need to cancel these certificates and ensure that they do not issue these to the applicants
  - For people below 28 years of age
    - Until they attain the age of 28 years, unsuccessful applicants might need to reapply for retention whenever they feel they meet the prescribed requirements
    - The refusal letters would typically indicate that the applicant will not cease to be citizens until they turn 28 years of age
    - As such, any original certificates submitted with the applications would remain valid and the authorities would typically return these along with the refusal letters until:
      - The authorities approve the retention applications or,
      - The applicants attain 28 years of age
  - For people 28 years of age or over
    - People who attain the age of 28 years and do not receive approvals on their applications will cease to be citizens
    - The refusal letters will typically highlight the process for the resumption of citizenship
    - In case the applicant is outside Canada and is keen to resume citizenship, the mission would need to provide the necessary information and assistance in helping the individual apply for permanent resident status i.e. a requirement for the resumption of citizenship
    - Similarly, if the applicant is inside Canada, the Immigration, Refugees and Citizenship Canada (IRCC) would need to advise the former citizen of the options available for regularising their status in Canada
    - The authorities confirm the loss of citizenship when the person turns 28 years of age and does not opt for retaining citizenship
    - In this scenario, the Case Processing Centre in Sydney (CPC-S) would need to inform the Immigration Query Response Centre and the Passport Office