Australian security agencies may not have approved tighter citizenship laws | The Guardian

2017/09/01 Leave a comment

Not going well (with good reason):

Immigration officials have been unable to say whether they gained security agency backing for tighter citizenship laws before Peter Dutton announced the controversial overhaul.

The officials told a Senate inquiry in Brisbane they could not confirm whether the Australian Security Intelligence Organisation (Asio) or the Australian federal police raised a need for the proposed changes, or were consulted specifically about them before they were unveiled in April.

The Labor senator Murray Watt seized on the testimony on Thursday as “evidence that shows very clearly there is no national security case for a tightening of the citizenship laws”.

Watt told the Guardian: “Peter Dutton’s own department was unable to produce any evidence that any national security agency had asked for these changes.”

The department also confirmed it knew before the announcement that people who completed the government-funded Adult Migrant English Program (Amep) would still fall short of the university-level English required under the new legislation.

“I think it’s bizarre that we have a government-funded program to help train people in English that will not even be able to provide the level required from the government’s own citizenship test,” Watt said.

David Wilden, a first assistant secretary at the Department of Immigration and Border Protection, told the inquiry he could not “give a definitive answer” to whether Asio gave any advice that tougher citizenship rules were needed to protect national security.

“I’d have to check, I don’t think we went to a specific piece of advice on this bill,” he said, adding the department had ongoing dialogues with the intelligence agency.

Linda Geddes, an acting secretary of the department, said it was the same case with the AFP.

When Watts asked whether the department had consulted either agency specifically on the bill, Wilden said he was unsure and would try to find an answer before the deadline for committee submissions on Friday.

The final day of hearings by the Senate legal and constitutional affairs legislation committee came after the inquiry having received more than 10,000 submissions against Dutton’s proposal.

Only two were in favour: from Dutton’s own department, and the Australian Monarchist League. The committee is due to report next Tuesday.

The immigration officials at the inquiry said the department had considered the fact that most people completing Amep would be at level 4 or 4.5 under the international English-language testing system (Ielts), short of the level 6 required for citizenship.

Wilden said these people would need to show “self-agency” and further their own English study to meet the new mark.

The Labor frontbencher Tony Burke told the Guardian he was “now confident the bill won’t be passed in its current form but I’m not yet confident” it would be rejected in the Senate, as Labor hoped.

When Watt read out a section of the Ielts test relating to Herodotus’ 480BC account of calisthenics at the battle of Thermopylae, “the whole room fell about laughing at just how ridiculous the level of language required was”, Burke said.

“People laughed, and then they reflected on it, and then the frustration started to take over the room when people realised exactly what that would mean in their own instances,” he said. “There was a despondency of people saying, if that’s the new rule, I’ll never become a citizen.”

Source: Australian security agencies may not have approved tighter citizenship laws | Australia news | The Guardian

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Australia: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | The Guardian

2017/08/31 Leave a comment

As noted, only reasonable solution in an immigration-based country is to repeal section 44 and allow dual citizenship:

The government faces an “uphill battle” in major high court cases dealing with the same-sex marriage postal survey and the eligibility of seven parliamentarians on the current reading of the law, George Williams has warned.

In a speech to the National Press Club on Wednesday, the constitutional law expert and University of NSW professor accused the government of “a surprising constitutional adventurism” in testing the limits of its power and relying on a “creative, quite liberal and generous reading of those powers” by the court.

In October the high court will hear the cases challenging the eligibility of the deputy prime minister, Barnaby Joyce, the Nationals senator Matt Canavan, the resigned Greens senators Scott Ludlam and Larissa Waters, and the One Nation senator Malcolm Roberts. Nick Xenophon and Fiona Nash will also be referred.

Williams said that “on the current law it is difficult to see … that any of the seven parliamentarians who will face the high court are likely to survive that challenge”.

“It is hard to see any of them have taken the reasonable steps that the high court requires to divest themselves of foreign citizenship.”

Williams suggested Labor’s Katy Gallagher could also be in difficulty, depending on the high court ruling, and likened citizenship by descent to a “Pandora’s box” that could claim up to “20 or more parliamentarians”.

Section 44 of the constitution disqualifies anyone who “is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” from sitting in parliament.

The Turnbull government insists it has strong legal advice from the solicitor general that the better view of the law is that some element of intention or acquiescence to foreign citizenship is required.

Williams warned that view was based on William Dean’s dissent in the case of Sykes v Cleary and it was “exceedingly rare” for a later court to adopt a dissenting view.

Another possible reading – to exclude only those members who have foreign citizenship by birth – had no support in the constitution, he said.

Williams said Joyce’s and the Greens’ eligibility problems “speak less of a constitutional problem … and more of complacency and poor vetting” by political parties. He cited a simple check he had performed online to confirm a person in Joyce’s situation was a New Zealand citizen by descent.

“In this case it is hard to see why the high court would fashion an exemption when candidates have been warned of this problem and when the information is very easy to obtain through a simple check on the internet.”

Williams described Malcolm Turnbull’s confidence that the high court will find Joyce eligible as “misplaced”.

Williams said section 44 was out of date, arguing it was “hardly consistent with our sovereignty, our stability as a democracy” to allow eligibility for parliament to be determined by other countries’ laws.

Source: Coalition warned it has ‘uphill battle’ in high court over citizenship and postal vote | Australia news | The Guardian

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Myanmar: Annan report calls for review of 1982 Citizenship Law 

2017/08/25 Leave a comment

Ongoing issue, one that reflects poorly on Myanmar:

An advisory commission tasked with finding sustainable solutions in Rakhine State has submitted its final report to the government, where it called for freedom of movement for all people in Rakhine and a review of the controversial 1982 Citizenship Law.

The Advisory Commission on Rakhine State, headed by former UN Secretary General Kofi Annan, was formed by State Counsellor Daw Aung San Suu Kyi in September 2016. It was formed by the October 9 attacks in northern Rakhine State, which led to a military crackdown that has come with allegations of human rights violations.

An estimated 1.1 million Muslims – many who identify as Rohingya, a term the government rejects – are denied access to citizenship in line with the citizenship law, which was enacted by former dictator U Ne Win. The law does not recognise the Rohingya as one of the country’s 135 recognised ethnic groups.

The commission’s report, released on Thursday, urged the government to bring the law in line with international standards and abolish “different distinctions between different types of citizens”. The law currently recognises full citizens, associate citizens and naturalised citizens.

The report also urged the commission to begin a process to review the citizenship law “to ensure the equitable treatment of all citizens”.

Many of the Rohingya in the state face severe restrictions on movements, and while the commission acknowledged recent efforts by the government to improve freedom of movement in the north of the state, it said it had only effected those holding the correct identification.

“To have greater impact, freedom of movement should be delinked from the citizenship verification process, meaning that all individuals in Rakhine State should be able to move freely irrespective of whether they hold an NVC [National Verification Card], NRC card [National Registration Card] or citizenship documentation, consistent with the basic right of all people to free movement,” the report said.

An estimated 120,000 Muslims are confined to IDP camps in Rakhine, many without access to basic livelihoods such as education, healthcare and livelihoods. The report said that efforts to allow the return of people home has “shown little progress”, and called on the government to develop a “comprehensive strategy towards closing all IDP camps” in the state.

It said the process should be developed through consultation with affected communities and should have clear timelines, adding that all returns and relocations must be voluntary and should allow people to return to their place of origin as a priority.

In the interim, it suggested improving shelter, water, sanitation and livelihoods in the IDP camps.

In northern Rakhine State, humanitarian and media access has largely been cut off since the October attacks, and the commission urged the government to ensure full and regular access to all parts of the state.

The military has been accused of using disproportionate force in its operations, including allegations of mass rape, extrajudicial killing and torture. The government and military have continuously denied all charges.

In March, the UN Human Rights Council passed a resolution to form an investigation team to probe rights abuses in Myanmar, with a particular focus on Rakhine. However, the Myanmar government has denied visas to its members.

The commission called for an “independent and impartial investigation” into the facts on the ground in order to ensure that those who conducted violations are held accountable.

Additionally, the commission called on the government form a ministry tasked solely with implementing its recommendations. It said the appointment should inintially be a one-year appointment and deliver public quarterly reports.

“The secretariat’s staff should be in permanent consultation with groups in Rakhine State in the implementation of its work,” the commission said.

Source: Annan report calls for review of 1982 Citizenship Law | Frontier Myanmar

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Canadian citizenship grant upheld for immigrant doctor living in the U.S.

2017/08/24 Leave a comment

Interesting case, under pre-C-24 rules before residency was more tightly defined as requiring physical presence. While C-6 reduces the residency time requirements, it rightly maintains the physical presence definition:

An immigrant doctor doing medical training in the United States can keep his Canadian citizenship even though he had spent far fewer days in Canada than normally required to become a citizen, Federal Court has ruled.

In rejecting an appeal from the federal government, Judge Susan Elliott found no reason to undo an earlier decision to allow Irfan Saddique to become a Canadian.

Court records show Saddique declared only 177 days of physical presence in Canada when he applied to become a citizen, well short of the required 1,095 days. Normally, that would have disqualified his application.

However, Saddique argued successfully before a citizenship judge in January that he had been forced to move to the U.S. for his medical residency so he could earn the credentials he needed to work as a doctor in Canada.

After examining the case, the citizenship judge found that Saddique had maintained his “centralized mode” of living in Canada and allowed him to become a Canadian.

The minister of citizenship and immigration appealed to Federal Court, arguing the judge’s decision was unreasonable.

Among other things, the government faulted the judge for failing to analyze whether Saddique had already established residence in Canada before he left for the United States to continue his training, and said the evidence he provided about his ties to Canada was inadequate.

“As I understand the minister’s position, it is akin to an adequacy-of-reasons argument and, despite protestations to the contrary, there are elements of asking the court to reweigh the evidence,” Elliott said in her ruling. “By reason of their special knowledge and expertise, citizenship judges are owed a degree of deference in the application of the test they choose and the assessment of the evidence placed before them.”

Saddique, who is from Pakistan, in turn argued the judge had considered his circumstances carefully, and correctly applied the legal test for residency.

He maintained he would have preferred to do his medical residency in Canada but had been unable to obtain a position, and therefore had no choice but to go to the United States.

He said he had as many as 50 relatives in Ontario, including a Canadian wife, maintained a home in Brampton, Ont., and planned to live permanently in Canada as soon as his medical-licensing process was done.

In siding with him, Elliott said the citizenship judge had taken into account several factors in determining Saddique’s residency, including that he had tried for a medical position in Canada, had maintained strong family ties in this country, and returned whenever he could.

As such, the judge who saw and heard Saddique applied the facts to the law, using the expertise she had gained, Elliott said.

“I am satisfied that the decision is intelligible and transparent,” Elliott ruled. “The outcome is supported by the evidence in the record. It is defensible on the facts and law.”

Source: Canadian citizenship grant upheld for immigrant doctor living in the U.S. | rdnewsNOW

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Citizenship changes are risky, says Australian Human Rights Commission | The Guardian

2017/08/24 Leave a comment

Valid reservations, with clear impact on some groups:

The Australian Human Rights Commission has warned the Turnbull government to tread carefully with its citizenship changes, saying the Coalition needs to be mindful of a perception Australia is departing from a non-discriminatory immigration policy.

Members of the commission, including the new president, Rosalind Croucher, appeared before a Senate committee on Wednesday to outline concerns they had about the controversial citizenship overhaul being proposed by the immigration minister, Peter Dutton.

The race discrimination commissioner, Tim Soutphommasane, told the committee Australia was a remarkable international success story when it came to the integration of immigrants, and he said if changes were contemplated to the citizenship regime, the case needed to be “compelling”.

He said there was a danger of the government sending a negative signal with onerous new requirements, including an English test requiring university-level language proficiency, which could deter people from taking out Australian citizenship.

“Care must be taken to ensure the wrong signal isn’t sent,” Soutphommasane told the committee.

The race discrimination commissioner also argued the task of managing civic integration was not one that should be confined to aspiring Australian citizens. He suggested there was also scope for improving the civic literacy of Australian-born citizens.

The Turnbull government proposal, which has been badged a national security measure, makes a number of changes to the current citizenship regime.

The legislation extends permanent residency requirements from one year to “at least four years” before someone can apply for citizenship and requires most applicants to provide evidence of “competent” English-language proficiency before they can become a citizen.

It would also give the immigration minister power to overrule decisions on citizenship applications by the administrative appeals tribunal if the minister didn’t think the decisions were in the national interest, and also give the minister power to decide whether or not the applicant had integrated into the Australian community.

A written submission from the AHRC to the Senate committee examining the legislation recommends that the government’s proposal not be passed in its current form.

It says the government proposal will make it harder for a number of vulnerable groups to become Australian citizens, including children born in Australia to asylum seeker or refugee parents, even after those children have been lawfully in Australia for up to a decade.

“These proposed sections would deny citizenship by birth to certain children born in Australia solely based on the immigration status of the child’s parents,” the submission says.

“The child may have held valid visas and been lawfully present in Australia for his or her entire life, but will be denied citizenship under the 10-year rule because his or her parents arrived in Australia without a valid visa”.

As well as raising concerns about the impact of the citizenship overhaul on children, and people with disabilities, the submission also says the harder English language test will have a “considerable” impact.

The submission notes many Australia-born citizens “would not possess a written or spoken command of English equivalent to this standard”.

It is unclear whether the government’s overhaul will pass the parliament. Labor has raised substantial objections, and the Nick Xenophon Team has also raised concerns about the impact of particular measures.

Source: Citizenship changes are risky, says Australian Human Rights Commission | Australia news | The Guardian

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Globe editorial: Ottawa should stop politicizing the citizenship guide

2017/08/22 Leave a comment

If only …

But even a neutral body would have a challenge drafting a text that would be viewed as neutral by all:

Immigrants who want to become citizens of Canada have to pass a test demonstrating a basic knowledge of this country. To prepare for the test, the federal government provides a study guide filled with facts, names, dates and – these days – subtle little plugs for the party in power.

It’s sad, really. After reading the current version of the guide prepared by the Harper government and parts of a draft of the new one coming any minute now from the Trudeau government, one is left with the impression that the chief goal of the exercise isn’t to help newcomers be better citizens but, rather, to tickle the biases of the governing party’s supporters.

Take the Harper version. It tells newcomers that Canadian law prohibits “barbaric cultural practices that tolerate spousal abuse, ‘honour killings,’ female genital mutilation, forced marriage or other gender-based violence.”

It also says that one of the chief responsibilities of citizenship, along with obeying the law and serving on juries, is “getting a job, taking care of one’s family and working hard.”

Conservative voters reading this are going, What’s wrong with either of those things? Liberal voters, on the other hand, are going, Typical Conservative bashing of immigrants’ culture and work ethic!

Which explains why, under the Liberals, the references to barbaric cultural practices and the responsibility of getting a job aren’t in a draft of the new guide obtained by the Canadian Press.

Can you guess what Trudeau government canon will soon be included in the “mandatory” responsibilities of citizenship, along with obeying the law and doing jury duty?

Filling out the census and respecting treaties with Indigenous peoples, that’s what.

If the NDP ever gets into power, we swear the guide will be re-written to say that supporting the right to collective bargaining is a responsibility of Canadian citizenship, and that the colour orange isn’t just for Halloween anymore.

The guide has become a silly competition, with successive governing parties redefining the obligations of citizenship along ideological lines. Citizenship – this country’s greatest gift – should be less fickle than that.

Ottawa should give the job of writing the guide to a neutral body, and leave the politicking to election campaigns.

Source: Globe editorial: Ottawa should stop politicizing the citizenship guide – The Globe and Mail

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International adoptions decline dramatically in Canada

2017/08/21 Leave a comment

An under-looked issue – the decline in the number of international options.

The previous government passed legislation granting citizenship to those adopted internationally (rather than through permanent residency) given considerable advocacy at the time by parents of internationally adopted children:

The number of international adoptions has declined dramatically in Canada in the last five years due to tighter country controls, exorbitant costs and alternative routes to parenthood.

Last year, there were only 793 international adoptions in Canada, according to data from Immigration, Refugees and Citizenship Canada (IRCC). That’s the lowest number in decades, and nearly half the total from 2012, when there were 1,379 inter-country adoptions.

Deborah Brennan, chair of the Adoption Council of Canada, points to a number of factors driving the downward trend. These include hefty costs (an international adoption can cost up to $50,000) and an increasingly onerous administrative process that can take anywhere from 18 months to several years.

A growing number of countries have imposed restrictions or all-out bans on international adoptions, and many have developed stronger systems to encourage more adoptions within their own borders.

“I think they are paying more attention to making sure they create an infrastructure within their own country where they can take care of their children themselves,” Brennan said.

She sees the trend as potentially positive for adoptee children, because remaining in their countries of origin helps ensure their family connections, culture and ethnicity are not lost.

International adoptions in Canada

“Our preference is that kids do stay … in their own countries of origin because it is risky for kids to come here and lose that. Many parents who adopt internationally, in my opinion, can sometimes do not a great job of maintaining those ties and those roots,” she said.

More domestic adoptions?

While Canadians are increasingly using other ways to have a family, including surrogacy and in vitro fertilization, Brennan hopes fewer international adoptions will mean more domestic adoptions in Canada.

Right now, more than 30,000 children are available for adoption around the country.

Many of them are over six years old, are in sibling groups or are have visible special needs. Brennan said a big part of the problem with matching parents with children is a lack of social workers and a huge gap in the inter-provincial adoption system.

In 1993, the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption imposed strict safeguards to make sure all adoptions were in the best interests of the child. It also adopted new measures to crack down on the abduction, sale and trafficking of children.

Some provincial and territorial authorities have imposed suspensions on certain countries of origin including:

  • Cambodia.
  • Georgia.
  • Guatemala.
  • Liberia.
  • Nepal.

Data shows that the number of international adoptions to Canada remained high in the aftermath of the Hague convention, with moderate fluctuations between 1999 and 2009 that ranged from 1,535 to 2,127.

Source: International adoptions decline dramatically in Canada – Politics – CBC News

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Proposed citizenship test guide will only mislead new Canadians: Tom Flanagan

2017/08/19 Leave a comment

Focused commentary by Flanagan on how Indigenous obligations are reflected in the current language of the draft new citizenship study guide (Discover Canada).

Surprising he did not mention the planned revision to the oath (TRC recommendation 94) that will include: “I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples.”

The federal government is currently working on a revision of Discover Canada, the study guide for the test that immigrants must pass before obtaining citizenship. To judge from a recent Canadian Press story, the new manual will read like a Liberal campaign platform. Perhaps that’s not surprising, because the Liberals control the government. Maybe it’s even fair, because the Conservatives revised the manual in 2011, when they controlled the government. But it would be nice if those who are politicizing the Canadian citizenship manual would at least represent Canadian law accurately.

According to The Canadian Press, the draft revision says, “Today, Canadians, for example, can own their own homes and buy land thanks to treaties that the government negotiated.” But a moment’s reflection shows that this statement can’t be correct. Land-cession treaties have never been negotiated in the Atlantic provinces, most of Quebec, and most of British Columbia. Yet, Canadians can own homes and buy land in those provinces, just as they can in Ontario and the Prairie provinces, where land-cession treaties were signed with First Nations.

The ability of Canadians to own land and homes depends upon grants of land from the sovereign. In the English legal tradition, sovereignty includes the title to land, which the sovereign can subsequently grant to individuals or corporations. Modern Canadian sovereignty rests upon earlier French and British sovereignty, founded upon discovery, (occasional) conquest, establishment of governments able to enforce territorial boundaries and administer law and recognition by other sovereign states.

Even while recognizing Indigenous land rights, including full ownership in certain circumstances, the Supreme Court of Canada has consistently upheld Canadian sovereignty as the basis of the Constitution. Chief Justice Antonio Lamer in Van der Peet phrased this as “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” From the beginning, French, British and Canadian sovereigns have made grants of land upon which our system of private land ownership has developed. Those grants did not depend upon prior negotiation of treaties with First Nations, otherwise there would be no private property today in much of Canada.

Ironically, private property in land does not exist on most Indigenous reserves today. That deficiency in the Indian Act is only one of the many ways in which the property rights of First Nations have been abused. But mistakes in that area do not mean the private-property rights of other Canadians depend upon treaties.

Another misleading statement in the revision is this advice to new Canadians about their legal obligations: “Obeying the law, serving on a jury, paying taxes, filling out the census and respecting treaties with Indigenous Peoples are mandatory.” But treaties were legal agreements between the Crown (advised by cabinet) and First Nations (represented by their chiefs). They imposed obligations on the Crown to set aside land and provide assistance of various types. But they don’t impose any specific obligations upon citizens other than the general obligation to obey the law, which incidentally is also imposed upon First Nations by the text of the treaties.

These wording changes, if the government follows through with them, won’t have any immediate legal effect. But we should be clear about what’s happening. In the past election campaign, the Liberals made many irredeemable promises to Indigenous voters, such as adopting the United Nations Declaration of Indigenous Rights. Now, instead of impossible legal changes, they are offering words – and words matter in the long run. As the great philosopher Thomas Hobbes wrote, “Words are wise men’s counters, they do but reckon with them, but they are the money of fools.” These foolish words will tend to make new Canadians, and indeed all Canadians, feel like interlopers in their own country.

Source: Proposed citizenship test guide will only mislead new Canadians – The Globe and Mail

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Australian deputy prime minister under citizenship cloud – ABC News

2017/08/15 Leave a comment

A more sensible approach would be to revise the law given the number of representatives from all parties that have been found in violation despite having lived in Australia for all their lives or close to it and not having meaningful connections to other countries:

Australia’s deputy prime minister on Monday became the latest lawmaker to reveal he might have breached a constitutional prohibition on dual citizens becoming lawmakers, after the New Zealand government declared he was a kiwi.

Barnaby Joyce told Parliament he would become the fifth lawmaker to be referred to the High Court since last month for scrutiny over whether he was entitled to remain in Parliament.

Joyce, who leads the conservative Nationals minor coalition party, said he had legal advice that he would be cleared by the court and would not stand down from Cabinet.

The 116-year-old section of the constitution that bans dual nationals is taking an extraordinary toll on the finely balanced Parliament elected in July last year. Before the careers of five came under a cloud since July, only two elected lawmakers were caught. Both were elected in the late 1990s and were quickly disqualified by the High Court, the first over New Zealand citizenship and the second for being British.

Critics of the constitutional rule argue it no longer suits the modern multicultural Australia in which almost half the population was born overseas or has at least one overseas-born parent.

If Joyce was disqualified, Prime Minister Malcolm Turnbull’s center-right government could lose its single-seat majority in the House of Representatives where parties need a majority to govern. The other four lawmakers are senators who if disqualified would be replaced by members of their own parties.

Joyce said he was notified by the New Zealand High Commission on Thursday that the New Zealand government had discovered “I may be a citizen by descent of New Zealand.”

“Needless to say, I was shocked to receive this information,” said Joyce, whose father migrated from New Zealand in 1947. Joyce was born in Australia in 1967.

New Zealand Prime Minister Bill English said he was told last week that Joyce was a New Zealand citizen.

“Unwittingly or not, he’s (Joyce) a New Zealand citizen and then it’s a matter for the Australian system to decide how Australian law applies in his case and how they deal with the issue,” English said.

The Australian opposition demanded that the government refuse to accept Joyce’s vote in Parliament and dump him from Cabinet until the court resolved his status. But Turnbull said he was confident that Joyce was eligible to sit in Parliament.

“We did not refer this matter to the court because of any doubt about the Member for New England’s (Joyce’s) position, but because of the need, plainly in the public interest, to give the court the opportunity to clarify the operation of the section (of the constitution) so important to the operation of our Parliament,” Turnbull told Parliament.

Source: Australian deputy prime minister under citizenship cloud – ABC News

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The Russian spies who raised us

2017/08/11 Leave a comment

For fans of the series “The Americans,” spy stories in general, and citizenship policy wonks, this long read of the Vavilov brothers, their parents and the citizenship case is fascinating:

Nine hundred kilometres away, at a townhouse near Boston, two other “Foleys” were deep in their own state of shock: the Canadian-born sons of the fake Tracey Foley and her fellow-spy husband, Donald Heathfield, whose bogus ID was also stolen from a dead Montreal infant. Alexander Foley was 16 when the story hit, and his older brother, Timothy, had just turned 20. They could do nothing but watch as FBI agents burst in and handcuffed their parents. As Tim later recounted in a sworn affidavit: “I was shocked in ways words cannot describe.”

Up until that moment, the brothers insist, they had no idea their mother and father were undercover Russian “illegals” deployed by the KGB in the late 1980s, first to Canada, then to America—or that their parents’ real names were Elena Vavilova and Andrey Bezrukov. The sons had no clue, in other words, that their surname since birth was a fraud, swiped from a dead baby girl and passed on to them.

If the details read like an episode of The Americans, the Emmy-nominated FX television show, there’s good reason: the series, about a Soviet spy couple and the secrets they hide from their U.S.-born children, was inspired by the same FBI bust that exposed Tim and Alex’s mom and dad. But here is the true-life subplot you won’t see on TV: a years-long court battle over whether the kids should have to pay for their parents’ crimes with their Canadian citizenship.

Although both brothers were born in Toronto, immigration officials concluded (after the spy ring was revealed) that the boys were never Canadian to begin with because their mother and father were “employees of a foreign government,” making the kids ineligible for status under the Citizenship Act. In June, however, the Federal Court of Appeal ruled otherwise, ordering Ottawa to reinstate Alex’s citizenship (his case is furthest along) and propelling the bizarre saga back into the headlines. “[T]he sins of parents ought not to be visited upon children without clear authorization by law,” the judgment reads.

What happens next is in the hands of the Trudeau government, which has until Sept. 20 to decide whether to pursue an appeal at the Supreme Court. A spokeswoman for the federal immigration department would only say that officials are “carefully reviewing” the June ruling.

Like all the great espionage thrillers, there is one more twist: CSIS, Canada’s spy agency, has told Immigration that Tim, the eldest brother, did indeed know the truth about his parents’ double lives—and that he pledged to follow in their footsteps. According to CSIS, Tim had been “sworn in” by the SVR, the KGB’s post-Soviet successor, by the time the FBI showed up. (Tim adamantly denies the allegation, saying in his affidavit that “no evidence of my involvement has ever been presented.”)

…Though now the stuff of headlines, the brothers’ legal fight began quietly, when both tried to renew their Canadian passports. Because their surname (Foley) was now a confirmed fraud, Ottawa told them they would need to update their birth certificates. They complied, taking a version of their mother’s real last name: Vavilov. But when Tim and Alex reapplied for passports, they instead received letters from the registrar of citizenship, informing them they were no longer Canadian in the eyes of the law.

Technically, the feds did not revoke their citizenship. In Ottawa’s opinion, they were never citizens to begin with because each parent was working as a “representative or employee in Canada of a foreign government,” a rare exception to the birthright rule under section 3(2)(a) of the Citizenship Act.

Who fits that definition of “representative or employee” is the central issue of the brothers’ court challenges. Ottawa contends that the phrase means exactly what it says: any representative or employee of a foreign government, period. Tim and Alex argue that the clause is extremely specific and applies only to foreigners who enjoy diplomatic immunity—which their parents clearly did not, having operated deep in the shadows.

In 2015, a Federal Court judge agreed with the government’s plain reading of the law, ruling, in Alex’s case, that “the wording is clearly meant to cover individuals who are in Canada as agents of a foreign government, whatever their mandate.” In June, however, the Federal Court of Appeal reached the opposite conclusion: that only those with diplomatic immunity fall under the “employee of a foreign government” exception. Under that narrow interpretation, the court ruled in its 2-1 decision, Alex is clearly a citizen. Any other conclusion is “not supportable, defensible or acceptable,” the judgment reads.

As the Trudeau Liberals ponder one last appeal to the Supreme Court (again, the government has until Sept. 20 to seek leave), the stakes extend well beyond a granular point of law. Between the lines of all the legal briefs is a much larger debate being waged in the court of public opinion: who deserves citizenship—and who doesn’t? As the case plays out, after all, this same government is poised to restore citizenship to Zakaria Amara, a convicted, foreign-born terrorist who plotted to kill hundreds of fellow Canadians. For Amara to retain status while two Toronto-born brothers with no criminal records are denied it would present a striking, if not absurd, contrast.

Ottawa must consider something else, too: that one brother may not have been as oblivious as the other. Although it was Alex who won his case, the judgment, if left standing, would surely apply to Tim—who, according to CSIS, knew about his parents’ covert activities and had been “sworn in” by the SVR prior to their arrests. What CSIS revealed to immigration bureaucrats appears to be the first official confirmation of a bombshell Wall Street Journal report published in 2012, which claimed that Tim had agreed to return to his parents’ homeland to begin formal espionage training. During one conversation with his parents, the article claimed, the eldest son “stood up and saluted ‘Mother Russia.’ ”

As damning as the allegation may be, it has no real bearing on the specific issue at hand: the definition of “employee of a foreign government.” In other words, if the latest ruling is not overturned, the feds will have little choice but to recognize Tim’s citizenship and, like his little brother, let him come home—regardless of the suspicion swirling over his head. (If Canadian authorities then choose to launch a criminal investigation, that’s a whole different story. Either way, though, a Canadian citizen cannot be expelled.)

Which raises yet another question for Ottawa to ponder: should the government attempt to appeal Alex’s ruling solely because it would present the best possible chance of keeping Tim out of the country?

Source: The Russian spies who raised us

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