There has been a lot of talk about getting rid of birthright citizenship in Canada and the United States. President Trump recently announced he will issue an executive order that would do away with automatic citizenship for babies born in the US. Conservative Party of Canada members passed a motion last August that would end birthright citizenship unless one parent is a citizen or permanent resident, should the party form government. And Liberal MP Joe Peschisolido has sponsored a petition to eliminate birthright citizenship.

In the US, the president will have to contend with the fact that he cannot just unilaterally eliminate a right in the 14th Amendment of the Constitution. In Canada, however, the story is different: birthright citizenship can be eliminated simply by amending or repealing parts of the Citizenship Act.

In both the US and Canada, the preoccupation with ending birthright citizenship is tied to the argument that migrants are engaging in “birth tourism” and challenging the integrity of citizenship. But the facts say otherwise.

Andrew Griffith, a former director general at Immigration, Refugees and Citizenship Canada recently analyzed hospital financial data for Policy Options, and noted that a sharp rise in birth tourism in some Canadian hospitals can no longer be considered “insignificant.” Still, Griffith found that only 1.2 percent of births can be attributed to mothers who reside outside of Canada. The figure might actually be lower if births to other temporary residents such as corporate transferees and international students and Canadian expatriates returning to give birth are factored in.

While there appears to be an increasing trend, the low overall levels suggest there is no business case for changing Canada’s citizenship policy. Eliminating or even creating a “graduated” birthright citizenship on this basis would be akin to an enormous hammer hitting a tiny nail.

The elimination of birthright citizenship would affect not just migrants, but all of us. A citizenship application will need to be made for every person born in Canada. More tax dollars would be needed to process the applications. Clerks would suddenly have the power to make substantive and legal determinations about the status of every person that applies for citizenship. Like any administrative system, mistakes would be made. Bad or wrong decisions would be challenged in the courts at great expense to both the state and the people affected. People would struggle with the fact that they are stateless in the interim.

Undoubtedly, doing away with birthright citizenship would increase the number of stateless persons in Canada. Being stateless has serious implications. Stateless persons have difficulty accessing education, employment, health care, social services and freedom of movement. Simple things like obtaining a bank account, cell phone account or registering birth, marriage or death are complicated if not impossible. Stateless persons would be subject to arrest, detention and potential removal to places they may never have been before.

The elimination of birthright citizenship would have the greatest impact on the most vulnerable: the indigent, those with mental illness, and children who are in precarious family situations or are wards of the state. These are the people that may not have the appropriate paperwork or proof that they do qualify for citizenship or do not have support for obtaining citizenship. For example, parents (who are Canadian citizens or permanent residents) of persons seeking citizenship may have lost paperwork, may not want to cooperate, may not be in the country, or may find out they are not the biological parent of that child.

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This one policy would create an expensive social problem for the state.

The elimination of birthright citizenship is not an act to preserve or protect the integrity of citizenship. The policy would be a dividing tool. Ending birthright citizenship would legitimize the argument that racialized persons are less deserving of citizenship, even though there is no evidence to show that children born of foreign mothers do not stay in Canada and do not contribute to society. The policy would also fuel discrimination against those of different socio-economic classes, because the most vulnerable and marginalized would have the most difficulty in accessing citizenship, or if they are citizens proving that they are. These administratively stateless people would be treated like foreigners and outsiders, even though they are eligible and qualify for citizenship. It is a tool to delegitimize people who have a genuine and effective link to Canada. It would create barriers to important rights that come with citizenship, including the right to vote.

We only need to look at how stripping citizenship and the denial of citizenship elsewhere in the world has encouraged discrimination, persecution and violence against stateless people. For example, the oppression of Rohingya and the genocide against them was precipitated by their being denied citizenship in Myanmar, a country they called home for generations.

Canadians should be cautious when considering the idea of getting rid of birthright citizenship. It would not stop migrants from coming. Instead of making it harder to get citizenship, we should trust our well-oiled immigration system to deal with the entry of people into our country. If there are issues with the authorization of persons entering our country, it is immigration law that should be tweaked, not citizenship law.

Canada has signed both the Convention on the Reduction of Statelessness and the Convention on the Rights of the Child, which obligate Canada not to create situations of statelessness. My father was born stateless because the state he was born into did not confer birthright citizenship. It affected his opportunity for education and employment, as well as his mental health. Being a child of a previously stateless person, I am proof enough that welcoming stateless people to Canada with the conferral of citizenship is the best way to build a nation.

Photo: Shutterstock, by AHPhotosWPG

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Jamie Liew
Jamie Chai Yun Liew is an immigration lawyer and an associate professor at the University of Ottawa’s Faculty of Law and Centre for Health Law, Policy and Ethics.

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