Metro Toronto Chinese & Southeast Asian Legal Clinic Submission – May 12

Submissions to the Standing Committee on Citizenship and Immigration on

Bill C24 – Strengthening Canadian Citizenship Act

by

Metro Toronto Chinese & Southeast Asian Legal Clinic

April, 2014

 

1. INTRODUCTION

The Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC) is a not-for-profit community based organization which provides free legal services to the low-income, non-English speaking members of the Chinese and Southeast Asian communities in Toronto.

Established in 1987, MTCSALC is mandated to provide free legal services, conduct public education activities, and engage in law reform advocacy in order to advance the interests and rights of our constituent communities. Over the years, MTCSALC has served tens of thousands of clients in various areas of law. About one-third of our caseload is in the area of immigration law.

MTCSALC has appeared before the Standing Committee on Citizenship and Immigration, other parliamentary committees as well as senate committees on numerous occasions to present on issues that affect immigrants, refugees and racialized communities.

MTCSALC thanks the Standing Committee for granting it the opportunity to comment on Bill C-24, Strengthening Canadian Citizenship Act.

1. THE EVOLUION OF CANADIAN CITIZENSHIP

Citizenship Act is one of the most important pieces of legislation for Canada.

Citizenship defines who we are as a people and hence what we are as a nation.

For the longest time, citizenship in Canada was tied to the country’s status as a British colony and as such, citizenship status was reserved primarily for those who were deemed to be British subjects.

Despite having sacrificed their lives and contributed hard labour to help build the Canadian Pacific Railway, Chinese Canadians were denied citizenship status for decades in Canada. Subject to the racist head tax and the Chinese Exclusion Act, Chinese Canadians were further disenfranchised by a series of federal as well as provincial legislation which denied them the right to vote. In effect, Chinese were treated as second class citizens since they first arrived in Canada in the 1880’s. Indeed, when the head tax was introduced, the then Prime Minister of Canada, Sir John A Macdonald had this to say to justify the racist law:

When the Chinaman comes here he intends to return to his own country; he does not bring his family with him; he is a stranger, a sojourner in a strange land, for his own purposes for a while; he has no common interest with us . . . A Chinaman gives us his labour and gets his money, but that money does not fructify in Canada; he does not invest it here, but takes it with him and returns to China . . . he has no British instincts or British feelings or aspirations, and therefore ought not to have a vote.”

The coming into effect of the first ever Canadian Citizenship Act on January 1, 1947 changed all that. For the first time, native-born Canadians as well as those who immigrated to Canada who met the requirements of the 1947 Act would be recognized as citizens of Canada.

For Chinese Canadians, and for many others who had fought hard to be recognized as Canadians, citizenship is as much about equal respect as it is about a sense of belonging. It affirms that they too, regardless of their race, have the right to call Canada their home.

To ensure that we do not repeat the same historical mistakes of injustice and exclusion, and to promote a sense of belonging among all Canadians, any change to Canada’s Citizenship Act must therefore be examined through the lens of equality and respect.

1. CONCERNS ABOUT BILL C-24

In the backgrounder to the Bill, Citizenship and Immigration Canada (CIC) claims that Bill C-24 reinforces the Canadian Government’s commitment to reduce backlogs and improve processing times while strengthening the integrity of Canadian citizenship, reinforcing the value of Canadian Citizenship, cracking down on citizenship fraud, and protecting and promoting Canadian interests and values.

What Bill C24 really does, however, is as follows:

• It reduces backlogs by turning down more applications and making sure fewer and fewer permanent residents will become citizens.

• It diminishes the value of Canadian citizenship both by making immigrants wait much longer to become citizens, and by creating a two-tier citizenship – by distinguishing between people who have dual citizenship and those who don’t, between Canadian born citizens and naturalized citizens, and between immigrants who do not work in the Canadian armed forces and those who do.

• It violates Canadian values of democracy and the principle of the Rule of Law by giving new and sweeping power to the Minister to revoke citizenship while simultaneously reducing judicial oversight of the Minister’s exercise of power.

In short, under Bill C24, the pathway to Canadian citizenship will become more and more restrictive, and the avenue for the Canadian Government to revoke citizenship will become wider and wider.

The following highlights some of the main concerns that MTCSALC has with respect to Bill C-24.

1. Residency Requirements

Section 3(1) of Bill C-24 proposes to increase the residency requirement from the current 3 out of 4 years, to 4 out of six years. It also takes away the current rule which recognizes the time spent by an applicant prior to obtaining their permanent resident up to a period of one year.

Increasing the time requirement to 4 out of 6 years will automatically increase the time it will take for someone to become a citizen.   The Government has not provided any rationale as to why making newcomers wait longer to become naturalized would enhance Canadian citizenship. In fact, such a change would only disenfranchise immigrants as they have to live in Canada for at least four years – and most likely at least six years – before they can acquire the right to vote.

Even more troubling however is the non-recognition of the time spent prior to obtaining permanent resident status. This change will have a negative impact particularly on refugees and on live-in-caregivers, who are among some of the most vulnerable groups in our society.

For refugees – many of them are stateless – obtaining Canadian citizenship has a particular important symbolic as well as practical purpose. Without Canadian citizenship, many refugees have difficulties travelling abroad, while those who travel on a passport issued by their country of origin do so at the risk of losing their refugee status.

In the case of live-in-caregivers, who are overwhelmingly women of colour and already have to endure years of exploitative working conditions just to qualify for permanent resident status, this change is going to disadvantage them further.

Other individuals, such as those who apply for permanent resident under the Canadian Experience class, will also be negatively affected, along with the international students who are lured to come to Canada on a promise of an expedited pathway to Canadian citizenship.

With respect to the immigrants who are sponsored to Canada by their spouse and are subject to the two-year conditional permanent resident requirement, there are real concerns as to whether or not their 2 years of residency during the conditional period would be counted towards the citizenship requirement. And given women are more likely than men to come as sponsored spouses, this provision will disproportionately affect them.

As such, we ask the Standing Committee to make the following recommendation to amend the Bill:

Recommendation 1:   Keep the current residency eligibility requirement to that of residing 3 out of 4 years in order to qualify for citizenship, and continue to recognize the one year residency credit prior to obtaining the permanent resident status.

1. Intent to Reside

Bill C-24 introduces an “intent to reside” provision, which requires an applicant to declare that they intend to reside in Canada after becoming a Canadian citizen.

Not only is this provision unfair as it only applies to people who are naturalized citizens, but not to those who are born in Canada, it also leaves open possibilities for the Minister of Citizenship and Immigration to revoke the citizenship status of a Canadian who, for reasons beyond his/her control, has to leave Canada after obtaining his/her citizenship status, and is then deemed to have obtained their citizenship status by misrepresentation or fraudulent means.

Many of the MTCSALC clients are Canadian citizens who find themselves having to leave Canada for another country, or return to their country of origin, for various reasons such as difficulties finding suitable employment in Canada and obligations to look after their aging parents in their home country, etc. If the “intent to reside” provision becomes effective, there is a serious risk that these Canadians would be seen as defrauding the citizenship system simply because they have to move elsewhere to make a living or to fulfil family obligations. As such, we recommend as follows:

Recommendation 2:   Remove the “Intent to reside” provision under s.3(1)(c.1)(i). In the alternative, remove misrepresentation of intent to reside in Canada from grounds for revocation of citizenship.

1. Language/knowledge requirement

Another problematic change to the citizenship law concerns the language and knowledge requirement under ss.3(1)(d) and (e) of the Bill. Specifically, Bill C-24 dramatically expands the group of individuals who are required to meet these requirements in order to become citizens of Canada. Under the current law, individuals between the age of 18 and 54 are required to meet these requirements in order to become Canadian citizens. Bill C-24 will require applicants between the age of 14 and 64 to pass the citizenship test.

This is going to have a serious impact on many refugees and new Canadians, especially those who came under the family class program, including women who came as sponsored spouses and people who are sponsored as parents and grandparents.

According to a study looking at family class immigrants to Canada between 2001 and 2010, the average age of sponsored parents/grandparents was 60 years old, and over one-third were over the age of 50.[1] As such, the majority of sponsored parents/grandparents will be affected by this change. For those who came at the age of 50, for instance, they would have to wait for 15 years before they could become Canadian citizens, if they are unable to meet the language/knowledge requirements.

For anyone who came to Canada as a mature adult and does not speak English as the first language, picking up a new language is difficult; becoming fluent enough to pass the citizenship requirement is that much harder, especially since proof of having passed the language test must now be provided when filing the application for citizenship, unless one can provide proof of a disability.

This change will also have a disproportionate impact on immigrants from certain parts of the global south, the majority of whom are racialized.

Recommendation 3: Retain the current rules regarding the age of applicants who are subject to the language and knowledge requirements.

Recommendation 4: Provide exemptions from the language and knowledge requirements for refugees and family class immigrants who have difficulty meeting those requirements.

1. Fee Increase

Another change, which has already taken effect in February, 2014 is the fee increase. The fee required for an adult application is now $400 and for children it is $200.  This affects low income immigrants in particular.

The Government justifies the change by suggesting taxpayers should not bear the burden of the administration of citizenship processing. Permanent residents are taxpayers too. The Canadian Government should encourage more immigrants to take up Canadian citizenship, and not set up artificial barriers making it more difficult for permanent residents to become naturalized.

Recommendation 5:   Reverse the fee increase for citizenship application 

1. New Power to Strip Dual Citizens of their Canadian citizenship

Bill C-24 proposes new powers for the Minister to strip citizenship from dual citizens in cases of ‘treason”, or “terrorism”. The Minister, and in some cases, the Federal Court will be authorized to strip Canadian citizenship because a citizen with dual citizenship has been found guilty of treason or terrorism. That includes convictions outside of Canada.  And the provision will be applied retroactively.

There are two main issues with these new powers: First, it creates a two-tier citizenship separating those who have dual citizenship and those who do not. Second, this provision applies even if the convictions are handed down by countries which do not obey the Rule of Law.

Under this new rule, Nelson Mandela – Canada’s most famous citizen – could have been stripped of his honorary Canadian citizenship status because he was convicted of treason by the South African government during the apartheid era.

The Bill also gives new power to the Minister to revoke citizenship from individuals based on misrepresentation including, for instance, misrepresentation about their intent to reside in Canada. Once again, this applies only to naturalized citizens and not to Canadian citizens by birth. This provision is potentially in breach of section 6 of the Canadian Charter of Rights and Freedoms which guarantees mobility right to all Canadian citizens, both native-born and naturalized alike. It is also in breach of section 15 of the Charter which provides every individual in Canada is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, and nationality, among other grounds.

The Bill also limits the role of citizenship judges by empowering the Minister to determine which cases get referred to the judge, and which cases do not, hence potentially politicizing the citizenship adjudication process.

Recommendation 6:   Remove all new grounds for revocation of citizenship from dual citizens.

Recommendation 7: Remove all new powers given to the Minister of Citizenship and Immigration.

1. Access to Federal Court

Given all these changes, especially brand new powers to the Minister to revoke citizenship, it becomes all the more important that there be mechanisms for applicants to challenge decisions that negatively affect them.

On the contrary, Bill C-24 is replacing the automatic right to appeal to the Federal Court with an application for judicial review, with leave from the Court.

This will not only limit the access for many applicants to challenge a negative decision, but more importantly, it will reduce the judicial oversight of unreasonable decisions made by the Minister and by citizenship judges.

To enhance judicial oversight and to promote consistency in jurisprudence, further appeal to the Federal Court of Appeal should be made possible on a certified question.

Recommendation 8:   Maintain the current appeal as of right to the Federal Court for review of citizenship refusals, and add a provision to allow the possibility of further appeal to the Federal Court of Appeal on a certified question.

1. Positive changes

There are some positive changes in the Bill, for instance, it contains provisions to deal with certain cases of “lost Canadians”, who were not granted citizenship when the Citizenship Act was first introduced in 1947, and they were not granted citizenship by the changes in 2009 that were designed to address this problem. MTCSALC agrees with these proposed changes.

1. IMPLICATIONS FOR OUR NATION

The proposed changes to the Citizenship Act should be understood in the context of all the other changes that the Canadian Government has introduced over the last several years to Canada’s immigration policy. As a result of these changes, more and more people are coming in to Canada as temporary foreign workers, and not as permanent residents.  And there are more and more restrictions placed on permanent residents, such as the conditional permanent resident status imposed on some sponsored spouse. The cumulative effect of these immigration law changes is to create more and more people with precarious immigration status.

For those who are lucky enough to get permanent residence status, already, the language requirements that were introduced in November 2012 have resulted in a significant drop of citizenship applications.

If Bill C24 is passed, an even smaller percentage of immigrants will become citizens of this country.

Apart from the fact that more people will be denied the right to vote as they are being disenfranchised, we need also to examine what these changes would mean for Canada.

Our immigration and citizenship policy is not simply about our economy. It is also about nation building.

Like the Chinese who came to build the railway and were denied the right to citizenship and the right to vote, with Bill C-24, the Canadian Government is going to create a whole new class of sojourners – individuals who are brought in to work, but are not given the chance to call Canada their home.

It is part of the fundamental values embraced by most Canadians that we build an inclusive society based on the principles of equality, justice and the Rule of Law, which we strive to reach by ensuring every person in Canada has an equal access to the most fundamental right, i.e., the right to become a full-fledged member of this society.

Denying immigrants this right signals that they are not welcome in Canada.

It is in the interests of Canada that we encourage and allow more immigrants to become citizens. People who cannot become citizens will not see Canada as their home, and will have second thoughts as to whether they should put down their roots in this country. Both they and Canada will lose.

As a nation, we have an important choice to make. We can choose to move forward to build a more inclusive, just and equal society by making citizenship more accessible to all immigrants, or we can choose to move backward to the era of exclusion and discrimination by denying people the right to call Canada their home. The choice is ours and we respectfully hope that we will make the right one.

 

[1]VanderPlaat, Ramos, and Yoshida, “What Do Sponsored Parents and Grandparents Contribute?” CES Volume 44 Number 3 (2012), 79-96