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Conservatives’ bid to deny “birthright” citizenship in Canada could hurt refugee claimants

The party says its new policy is meant to target "birth tourism".

by Tamara Khandaker
Aug 28 2018, 7:13pm

There are easier ways of tackling the problem of “birth tourism” in Canada than getting rid of birthright citizenship, say experts who argue that the Conservatives’ new policy is like “using a sledgehammer to hit a fly” and could cause major issues for children born to refugee claimants who are waiting for permanent resident status.

The new policy — adopted by the official opposition at its recent convention — has also thrust the issue of who gets to be a Canadian back into the national discourse.

Conservative delegates voted by a narrow margin to enact legislation to take away the right to automatic citizenship for children born in Canada “unless one of the parents … is a Canadian citizen or permanent resident of Canada.”

“This is a practice that has received increasing attention from Canadian media in recent months,” said Conservative leader Andrew Scheer in a statement on Sunday, referring to the act of travelling to Canada to give birth to a child who would automatically be a citizen of the country.

The “birth on soil” principle has been in effect in Canada since the Canadian Citizenship Act was introduced in 1947. The same principle applies in the United States, Mexico, and Argentina.

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If birthright citizenship was eliminated, Canada would be joining countries like Australia, New Zealand, the United Kingdom, and much of the rest of Europe, which require at least one parent to be a citizen or permanent resident.

“Conservatives recognize there are many Canadians who have been born in Canada by parents who have come here to stay and have contributed greatly to our country. I will not end the core policy that facilitates this. Unlike Justin Trudeau, I will safeguard it against abuse,” said Scheer in his statement.

The policy first emerged in the 1990s at the hands of the governing Liberals who were having trouble deporting a woman because her two children had been born in Canada. It was never adopted. This time, critics have denounced it as a divisive issue — with some of the dissent coming from inside the Conservative party.

“This is a fundamental question of equality out here. Any person who is born in Canada, by law, is entitled to be a Canadian,” Alberta Conservative MP Deepak Obhrai told Global News. “We cannot choose who is going to be a Canadian and who is not going to be a Canadian.”

Refugee advocates argue that ending birthright citizenship would create major hurdles for refugee claimants and their children, rendering many newborn babies stateless.

“Anecdotally we know there are a lot of people who give birth while they’re waiting for their refugee claim or after they’ve got their refugee status,” said Janet Dench, executive director of the Canadian Council for Refugees. “Getting permanent resident status can take a long time.”

As of right now, with a massive backlog in processing applications, the whole process can easily take three years, said Dench.

“You’d have babies that would be born that would have no identity documents,” Dench points out, adding that refugee claimants wouldn’t necessarily be able to go to their countries of origin and ask for identity documents, since it could be seen as seeking protection from the same government they’re trying to flee and potentially jeopardize their refugee claim.

“Looking at the issue of statelessness and how people turn out to be stateless around the world, it makes you aware of the ways in which people’s discrimination is passed on through generations,” she continued, pointing to the Rohingya refugee crisis in Burma, an example of a group of people who have been living in the country for generations and are being rejected as citizens.

“We take a very different approach, which is your parentage is not the key issue. Once you’re here, we’re not going to start asking are your parents good enough or whatever? We’re saying everyone starts at an equal step once you get here.”

The Conservative resolution was based on a petition that was presented to the government in 2016 by B.C. Conservative MP Alice Wong in 2016, who said “birth tourism” was rampant in the city of Richmond. Some locals in the city have been campaigning against “birthing homes,” which temporarily house pregnant women who come to Canada to give birth.

According to Vancouver Coastal Health, 474 babies were born to non-residents at Richmond Hospital in 2017-2018. In most cases, the parents were Chinese nationals. Between 2014 and 2018, 1,493 babies were born to non-residents.

These numbers, however, are inconsistent with the figures offered by Stats Canada, which indicate that birth tourism is not a significant problem across the country.

According to the agency, only 313 of 380,000 babies born in Canada in 2016 were born to mothers whose place of residence is outside of Canada — this includes live births to mothers who are non-residents of Canada and births with unknown country of residence of mother, according to Stats Canada. This number also includes Canadians who live abroad and returned to Canada to give birth.

While the number was higher in 2012 — 699 out of 382,568— it dropped significantly in the years that followed: 352 out of 380,675 births in 2013, 278 out of 384,378 births in 2014, and 233 out of 382,625 in 2015.

“These are complex systems so it may just be that people aren’t capturing the vital stats or entering the data properly,” said Andrew Griffith, a fellow at the Canadian Global Affairs Institute and former director general of Immigration and Citizenship Canada.

“Is there something real there? Yes, there is, but the extent to which [birth tourism] is a problem beyond Richmond is unclear,” Griffith told VICE News. “So the question becomes should we be abolishing birthright citizenship to address a relatively small portion of people with citizenship or are there other measures that one could take to discourage the practice or make it harder to achieve the practice?”

Griffith has suggested tightening the visa regime to make it easier for visa officers to reject visitors who they suspect are trying to enter Canada to give birth and making hospitals charge higher deposits for non-citizens to cover expenses as ways of tackling the issue. Others have suggested taking away the licenses of “birth homes” — which are essentially places that provide pre and post-partum accommodation to women who don’t live here and go into labour.

In 2016, the BC government said there were 26 such homes in the province. One home called Baoma Inn, which was highlighted in an article about birth tourism in the South China Morning Post, also offers parents help in obtaining a Canadian birth certificate and passport , as well as enrolling their children in the provincial health care plan.

“Assuming that the overall numbers are still relatively small, it’s basically using a sledgehammer to hit a fly, and I think using more targeted measures are more appropriate,” Griffith continued.

The Conservative government’s own report on the policy from 2014, prepared for then-Immigration Minister Jason Kenney noted that “eliminating birth on soil … would have significant cost implications”, and that “the potential costs of … enforcing this provision, the potential challenges with children being born stateless in Canada and the uncertainty of their status may outweigh the benefits linked to limiting citizenship by birth on soil.”

For anyone who is born in Canada, a Canadian birth certificate currently serves as proof of citizenship. Eliminating birthright citizenship would mean the federal or provincial governments would have to come up with another way for people to prove their citizenship — issuing different kinds of birth certificates or a national ID card system, for example, Whatever the administrative remedy is, the cost would far outweigh the benefits, experts have said.

It’s why the Conservatives shut down the idea the last time it was proposed in 2012.

Since the vote on Saturday, leaders of other parties have condemned the idea of abolishing birthright citizenship, arguing that it goes against Canadian values.

“Even Trump has resisted this idea,” tweeted NDP leader Jagmeet Singh. “The NDP unequivocally condemns the division & hate being peddled by @AndrewScheer & the CPC.”

Cover image of Conservative Party of Canada Leader Andrew Scheer, delivering remarks at the party's national policy convention in Halifax on Friday, Aug. 24, 2018. Photo by Andrew Vaughan/The Canadian Press.