Discretionary Grant, ss. 5(4) Citizenship Act

An individual is a Canadian citizen under section 3 of the Citizenship Act[1] (the “Act”) by right (ie. typically by birth or decent) or by a grant of citizenship under section 5, (ie. typically to a permanent resident after certain conditions are met). In addition to these usual paths to Canadian citizenship, subsection 5(4) provides for a special grant in exceptional cases.

Subsection 5(4)[2]  states:

“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.”

Applicants, seeking a discretionary grant of citizenship, must meet one or more of the requirements under this section; (i) statelessness (blood connection); (ii) alleviation of special and unusual hardship; or (iii) reward service of an exceptional value to Canada. It is important to note that if a discretionary grant is issued, permanent residency and a knowledge test are not required. If applying as an adult, the applicant should submit an adult grant of citizenship application under ss. 5(1)[3] or if under the age of 18, submit a minor grant of citizenship application under ss. 5(2)[4] of the Act.

Statelessness – Blood Connection

A person will be considered stateless under ss. 5(5),[5] if the applicant was born outside of Canada; had a birth parent that was a citizen at the time of birth; is less than 23 years of age; been physically present in Canada for at least 1,095 days for 4 years immediately before the date of his or her application; has always been stateless; and has not been convicted of any of the offences listed under s. 5(f) of the Act.

Alleviation of Special and Unusual Hardship

Demonstrating special and unusual hardship can be very onerous and a highly subjective subject. Typically, Senior Decision-Makers in the Case Management Branch are delegated authority under ss. 5(4) of the Citizenship Act to make discretionary grants, unless the Minister of Immigration Refugee Citizenship Canada (IRCC) elects him/herself to exercise their discretionary authority to grant citizenship.

The Minister or his/her delegates discretion is “personal in nature, and qualified in that it cannot be exercised in an unreasonable manner.”[6] In Re Mojallal,[7] the court found that cases of special and unusual hardship usually arise when “the lack of Canadian citizenship precludes an individual from practising a profession, denies a person the opportunity of employment or restricts the exercise of business enterprise.” An applicant that is unable to reside in Canada earlier to meet the residency requirement due to turmoil or civil unrest in one’s country of origin could constitute special and unusual hardship.[8] Unusual hardship can also arise in cases where “as a consequence of delay of granting citizenship, families would be broken up, employment lost, professional qualifications and special abilities wasted, and the country deprived of desirable and highly qualified citizens.”[9]

Each case is decided on a case-by-case basis and is considered on its own merit. An applicant should be aware of the “significance of being conferred a grant of citizenship under this provision.”[10] Subsection 5(4) should not be used to bypass or circumvent the standard citizenship process.

Reward Service of Exceptional Value to Canada

Service of exceptional value does not need to include services to the Canadian government or to a Canadian entity.[11] In the case of Halepota v Canada, the appellant, worked for the United Nations outside of Canada, and sought judicial review of the Minister’s decision to not exercise a special grant under ss. 5(4). The Minister attempted to justify the decision to refuse the special grant with a faulty assumption that work performed outside of Canada cannot be of value to Canada and that work that benefited people in other countries instead of people in Canada was not of value to Canada.”[12] The court disagreed with the Minister’s decision, and held that the requirement is simply that the services have value to Canada.

Subsection 5(4) grants are often issued in cases of athletes to reward exceptional contributions and alleviate unusual hardship. Athletes that train extensively to compete internationally, may face serious special and unusual hardship if they are deprived an opportunity to compete internationally on behalf of Canada.[13]

In circumstances where athletes have already obtained significant accomplishments nationally or internationally, they can argue that a grant of citizenship should be issued to reward them for their significant contributions to Canada, and argue that without the special grant of citizenship, they will suffer unusual hardship if they cannot compete for Canada. Take for example the case of Deanna Stellato-Dudek, a pairs figure skater who won gold for Canada at the World Figure Skating Championships held in Montreal earlier this year. Deanna and her Canadian born skating partner, Maxime Deschamps, hope to represent Canada at the 2026 Olympics in Milan, Italy. However, without a special grant under ss. 5(4), her and Maxime will miss this opportunity.  Although Deanna is an American citizen (Maxime is not), they have declared and are qualified to represent Canada. They cannot elect to represent the United States now. Further, Deanna is the oldest female figure skater to win a World title in any discipline at the age of 41, and therefore is unlikely to have another opportunity to compete in future Olympics. Canada will also miss an opportunity to win an Olympic medal in both the Pairs and Team events, and potentially limit the number of Canadian pairs teams that can compete at future international events, since top rankings dictate the number of Canadian teams that can attend future events. Hopefully the Minister exercises his discretion and grants Deanna citizenship in time for her to compete for Canada. Her accomplishments as a World Champion for Canada deserve a reward for service and a grant of citizenship would alleviate hardship to her, her Canadian skating partner, and the Canadian Figure Skating Team. Those that agree, can consider Deanna’s petition here.

Practical Guidance for ss. 5(4) Applications

Generally, before making an application for Canadian citizenship, the applicant must check if they’re eligible and should calculate the length of physical time spent in Canada.[14] However, when making an application for a discretionary grant under ss. 5(4), the applicant does not have to meet the residence criteria, and can prepare and submit an adult grant of citizenship application under subsection 5(1)[15] of the Act or a minor grant of citizenship application under subsection 5(2)[16] of the Act if they are under 18 years of age. The Application form(s) (Adult – Application for Canadian Citizenship – Adults [CIT 0002]; Minors – Application for Canadian Citizenship – Minors [CIT 0003]) must be fully completed, signed and dated, along with providing the applicable documentation for the application. (ie. Citizenship photo etc.) Payment of the fees is also required.

The recommended method for submitting as subsection 5(4) application is by paper since the online application, does not include a specific function to request consideration under 5(4). It is recommended to include at the very top of the application form in bold “Requesting Discretionary Consideration under ss. 5(4) of the Citizenship Act.”, and at the very top of the envelope in bold “Requesting Discretionary Consideration under ss. 5(4) of the Citizenship Act”. This will assist IRCC to know that the applicant is requesting a special grant of citizenship under ss. 5(4) and help mitigate the application being sent to the intake stage should the applicant not meet the normal eligibility requirements for citizenship grants, such as the physical presence requirement.

Applicants should also include a formal letter addressed to the Minister of IRCC, requesting that their application be considered under ss. 5(4). The letter should incorporate as much detail as possible regarding their request for a special grant. The applicant should address why they believe they deserve a discretionary grant of citizenship and on what basis (ie. (i) statelessness; (ii) to alleviate any special and unusual hardship; (iii) to reward services of an exceptional value to Canada). The letter should be accompanied with documents to support these circumstances.

Processing

When the application is accepted into processing, it will be generated in the Global Case Management System (“GCMS”) and criminal and security clearances will commence. Criminal and security prohibitions under s. 22 of the Citizenship Act[17] are mandatory for applicants that are 14 years of age and older. Citizenship will not be granted if any of the prohibitions listed under this section apply.

The application is then referred to the CMB in Ottawa.

Standard processing times do not apply with these special grant applications. It usually takes 12 to 24 months to receive a decision under ss. 5(4). The application can be expedited if requested at the time the application was submitted by instructing at the top of the application form and on the letter, why a decision on the application needs to be made quickly. Supporting documents that shows the need for expedited processing should be included as well.

Citizenship is not always a right, but is often secured instead by a grant, including in some exceptional cases by a special grant under ss.5(4). Citizenship, however, is always a privilege and is accompanied with responsibilities. It is highly valued in Canada and is an important measure of a person’s belonging and integration into Canadian communities. Citizenship promotes democratic values and participation in democratic processes; respect for rights, freedoms and obligations set out in the laws of Canada; volunteerism; and respect for the environment and the protection of Canada’s natural cultural and architectural heritage. Subsection 5(4) provides an opportunity to alleviate hardship and reward exceptional contributions to Canada in certain circumstances where a person might not otherwise qualify for Canadian citizenship and is, therefore, a powerful and important discretionary authority authorized under the Citizenship Act.

If you or an employee has any questions about Subsection 5(4), feel free to reach out to us for a consultation. Our Canadian immigration legal professionals can be reached by phone (416-368-1111) or via email: caruso@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; mukherjee@cilf.ca; garciafialdini@cilf.ca.

 

 

[1] Citizenship Act, Section 5

[2] Ibid, ss. 5(4)

[3] Ibid, ss. 5(1)

[4] Ibid, ss. 5 (2)

[5] Ibid, ss. 5(5)

[6] Worthington v. Canada (Minister of Citizenship & Immigration) (2008), 330 F.T.R 40

[7] Re Mojallal, 1985 CarswellNat 974 (Fed. T.D.)

[8] Ibid

[9] Re Kerho (1988), 21 F.T.R. 180

[10] Government off Canada, “Citizenship: Ministerial discretion to grant citizenship in special cases,” October 11, 2017, available at: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/canadian-citizenship/grant/ministerial-discretion-grant-special-cases.htmljolen.

[11] Halepota v Canada (Minister of Citizenship and Immigration), 2018 FC 1196

[12] Ibid

[13] Re Mady [1978] FCJ No 914 (TD)

[14] Government of Canada, “Guide: Application for Canadian Citizenship: Adults – Subsection 5(1) CIT 0002”, May 08, 2024, available at: https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-0002-application-canadian-citizenship-under-subsection-5-1-adults-18-years-older.html#Step1

[15] Ibid (3)

[16] Ibid (4)

[17] Ibid (1), s. 22