Discretionary Grant of Canadian Citizenship under Subsection

Most  people become Canadian citizens either automatically by operation of  law or by qualifying through the regular citizenship process. Subsection  5(4) of the Citizenship Act provides a separate and highly exceptional form of relief for  individuals whose circumstances cannot be adequately addressed through  the ordinary citizenship provisions.

This discretionary authority may be relevant to people who:

• are stateless or face a genuine risk of remaining without any effective nationality;
• previously held Canadian citizenship but later renounced or lost it and now face exceptional consequences;
• cannot qualify through the regular citizenship process because of circumstances creating special and unusual hardship; or
• have provided services of exceptional value to Canada.

A  grant under subsection 5(4) is not automatic. The Minister or an  authorized decision-maker assesses each case individually, based on its  particular facts, supporting evidence and legal merits. Immigration,  Refugees and Citizenship Canada confirms that these grants are reserved  for very exceptional cases and that there is no standard processing time because the complexity of each application varies considerably. ([Canada][1])

The wording of subsection 5(4) of the Citizenship Act is reproduced below without modification:

“Despite  any other provision of this Act, the Minister may in his or her  discretion, grant citizenship to any person to alleviate cases of  statelessness or of special and unusual hardship or to reward services  of an exceptional value to Canada.”
 

The current consolidated version of the Citizenship Act contains the same authority under subsection 5(4). ([Department of Justice Canada][2])

An applicant must establish at least one of the following grounds:

1. Alleviating statelessness
2. Alleviating special and unusual hardship
3. Rewarding services of exceptional value to Canada

The  application material supplied for this page also discusses the legal  principles, jurisprudence and practical considerations historically  associated with these three grounds.

Subsection 5(4) may be considered in circumstances where the regular citizenship rules do not provide an adequate remedy.

Examples may include:

A  person may previously have renounced Canadian citizenship to comply  with the nationality law of another country that prohibited dual  citizenship. If that foreign citizenship is subsequently revoked, the  person may be left without an effective nationality, passport or secure  legal status.

The  fact that a person is stateless does not by itself guarantee a grant.  The circumstances leading to the loss or renunciation of citizenship,  the person’s former connection to Canada, their present nationality  status, the consequences of remaining stateless and any other available  legal remedies must all be examined.

Recent  nationality reviews and revocation decisions in Kuwait have affected  tens of thousands of people, including some individuals who had  previously surrendered another nationality when becoming Kuwaiti  citizens. Reporting has documented cases in which affected people were  left stateless or without secure nationality documentation after their  Kuwaiti citizenship was revoked. ([Financial Times][3])

This may be particularly relevant to a former Canadian citizen who:

• renounced Canadian citizenship when acquiring Kuwaiti citizenship;
• did so to comply with Kuwait’s prohibition against dual nationality;
• later had Kuwaiti citizenship revoked;
• no longer possesses another nationality; and
• now faces serious legal, personal, family or mobility consequences.

These  circumstances do not create an automatic entitlement to Canadian  citizenship. However, they may justify a careful assessment of whether  subsection 5(4), resumption of citizenship, proof of citizenship or  another citizenship remedy is legally available.

Some  former Canadian citizens may not qualify for regular resumption because  they do not hold permanent resident status, do not satisfy the  applicable residence requirements or face another legal obstacle.

Where  the consequences are exceptional, subsection 5(4) may warrant  examination. The application must explain why the regular statutory  process does not adequately address the person’s circumstances and why  ministerial discretion should be exercised.

Special  and unusual hardship is more than ordinary inconvenience,  disappointment or the consequences normally associated with not holding  Canadian citizenship.

Depending on the facts, relevant hardship may involve:

• prolonged statelessness;
• inability to obtain a passport or travel document;
• separation from immediate family members;
• restrictions on lawful residence, employment or education;
• inability to practise a profession or operate a business;
• loss of significant professional opportunities;
• serious medical, humanitarian or security consequences;
• inability to return to or establish lawful status in another country; or
• circumstances in which the  absence of Canadian citizenship creates consequences substantially  beyond those ordinarily experienced by non-citizens.

Canadian  jurisprudence has recognized that relevant hardship may arise where the  absence of citizenship prevents professional practice, employment or  business activity, or where delay could result in family separation,  loss of employment or the waste of important professional abilities. The  legal discussion in the supporting source reviews several cases  addressing these principles.

The provision may also apply where a person has provided services of exceptional value to Canada.

This category has been considered in cases involving:

• elite athletes representing Canada;
• individuals whose work has produced an exceptional benefit for Canada;
• persons with extraordinary professional, public, humanitarian, scientific, cultural or national contributions; or
• circumstances in which  Canada would lose the benefit of the individual’s exceptional services  without a timely citizenship grant.

The  service does not necessarily have to be performed physically in Canada  or directly for the Canadian government. What must be established is its  exceptional value to Canada.

The recent developments in Kuwait illustrate why subsection 5(4) can be important.

Some  individuals obtained Kuwaiti citizenship in earlier years and renounced  Canadian citizenship because Kuwaiti law generally does not permit dual  nationality. Following the subsequent revocation of Kuwaiti  citizenship, some may now find themselves without recognized  nationality, without a valid passport and without a straightforward  means of returning to Canada.

For a former Canadian citizen in this position, a proper legal assessment should address:

• the date and legal basis on which Canadian citizenship was obtained;
• how and when Canadian citizenship was renounced;
• the legal requirement or circumstances that led to the renunciation;
• the date and basis of the Kuwaiti citizenship grant;
• the decision revoking Kuwaiti citizenship;
• whether the person currently possesses any other nationality;
• whether regular resumption of Canadian citizenship is available;
• the person’s historical and continuing connection to Canada;
• the consequences of statelessness;
• family, medical, employment and humanitarian circumstances; and
• whether the case meets the exceptional threshold under subsection 5(4).

Subsection  5(4) should not be treated as a substitute for the regular citizenship  process. The application must demonstrate why the case is exceptional  and why the statutory discretion should be exercised.

A strong application should clearly identify the legal ground being relied upon and connect every important fact to that ground.

The evidence may need to establish:

• that no country presently recognizes the applicant as a citizen;
• that any prior nationality has been formally lost, revoked or renounced;
• that the applicant cannot realistically obtain or restore another nationality;
• the consequences of having no nationality or travel document;
• the person’s former or continuing connection to Canada; and
• why a discretionary Canadian citizenship grant would alleviate the statelessness.

It  is important to distinguish a discretionary request under subsection  5(4) from the separate statutory grant for certain stateless persons  under subsection 5(5). The latter has specific requirements involving  age, birth to a Canadian parent, lifelong statelessness and physical  presence in Canada. ([Canada][4]).

The application should explain:

• what hardship is being experienced;
• why it is both special and unusual;
• how it differs from the ordinary consequences of not having Canadian citizenship;
• why another immigration or citizenship process is insufficient;
• how the absence of citizenship affects the applicant and immediate family members; and
• why granting citizenship would materially alleviate the hardship.

The evidence should establish:

• the nature of the service;
• its benefit to Canada;
• why the contribution is exceptional rather than merely positive or valuable;
• recognition received from credible Canadian or international organizations;
• the consequences to Canada if citizenship is not granted; and
• any urgency connected to the applicant’s ability to continue providing the service.

The required evidence depends on the circumstances of the individual case. A subsection 5(4) application may include:

• current and expired passports;
• Canadian citizenship certificates;
• Canadian birth or naturalization records;
• the Canadian renunciation certificate or decision;
• documents confirming the acquisition of another citizenship;
• the foreign citizenship revocation decree or official notice;
• letters from foreign nationality authorities;
• evidence that no other country recognizes the applicant as a citizen;
• birth, marriage and family-status documents;
• proof of previous residence and establishment in Canada;
• evidence of Canadian family connections;
• immigration and travel records;
• employment and professional records;
• medical or psychological evidence;
• evidence of family separation or dependency;
• evidence of restrictions caused by statelessness;
• country-condition and foreign-law documentation;
• expert opinions where required;
• documents supporting urgency; and
• a detailed legal submission addressed to the Minister.

Documents not issued in English or French generally require an appropriate translation.

The written submission is a central part of the application.

It should do more than describe the applicant’s personal history. It should:

• identify the precise statutory ground;
• provide a clear chronological history;
• explain the legal effect of the relevant foreign nationality laws;
• address any regular citizenship or resumption options;
• distinguish the case from an attempt to bypass normal eligibility requirements;
• connect the evidence to the subsection 5(4) threshold;
• address relevant jurisprudence and previously considered cases;
• explain the consequences if discretion is not exercised; and
• clearly state the relief being requested.

The  evidence and legal arguments should be tailored to the applicant’s  individual circumstances. A generic humanitarian letter is unlikely to  adequately address the exceptional legal threshold.

These applications are non-routine and are assessed individually.

IRCC  has stated that it does not maintain a standard processing time for  subsection 5(4) applications. Processing can be affected by:

• the completeness of the application;
• requests for additional evidence;
• the complexity of the citizenship history;
• security and criminality screening;
• fingerprint requirements;
• verification with foreign authorities; and
• whether urgent processing is requested and supported by evidence. ([Canada][1])

A request for urgent processing does not guarantee that the application will be expedited or approved.

The  discretion under subsection 5(4) is broad but not unlimited. The  decision must be made reasonably and in accordance with the purpose of  the legislation.

Subsection  5(4) applications require a detailed review of Canadian citizenship  law, the applicant’s nationality history, the law of the foreign country  involved and the evidence supporting the exceptional circumstances.

Rami Alsaqqa, RCIC-IRB,  has experience in Canadian immigration and citizenship matters,  including complex citizenship files involving loss, renunciation,  resumption, nationality status and exceptional personal circumstances.

Our assistance may include:

• determining whether subsection 5(4) is the appropriate legal mechanism;
• assessing whether regular resumption or another citizenship process is available;
• reviewing Canadian and foreign nationality documents;
• preparing a complete factual chronology;
• identifying evidentiary gaps;
• gathering and organizing supporting documentation;
• researching relevant citizenship law and jurisprudence;
• documenting statelessness and special hardship;
• preparing detailed legal submissions;
• presenting requests for urgent consideration where justified;
• communicating with IRCC; and
• responding to requests for further information.

Services are available in English and Arabic.

Our  familiarity with the Middle East, including recent citizenship  revocation developments in Kuwait and other nationality-law issues in  the region, assists us in understanding the legal and practical  realities affecting applicants. This regional knowledge supports more  accurate documentation, clearer legal submissions and representation  tailored to the applicant’s actual circumstances.

Every  application is assessed on its own facts. Previous decisions and  reported cases may assist in framing the legal argument, but they do not  guarantee the same result in another case.

Former  Canadian citizens who renounced their citizenship before acquiring  Kuwaiti or another foreign citizenship may have more than one possible  legal route. A complete review is necessary before deciding whether to  pursue:

• resumption of Canadian citizenship;
• a discretionary grant under subsection 5(4);
• proof of Canadian citizenship;
• permanent residence followed by resumption; or
• another immigration or citizenship remedy.

Rami Alsaqqa, RCIC-IRB
CICC Licence No. R510298

GrandWest Immigration Consultants Ltd.
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Website: www.gwvisapro.com

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