Countries urged not to strip terror suspects of citizenship

More on citizenship revocation for treason or terror:

Stripping terror suspects of citizenship does not increase national security and may even make it worse, legal experts told a conference on ending statelessness.

They are particularly concerned over the increasing use of the measure by Britain which this year revoked the nationality of “jihadi bride” Shamima Begum who left London to join Islamic State in 2015 at the age of 15.

Britain is also considering the case of British-Canadian Muslim convert Jack Letts who joined ISIS as a teenager and is now being held in a Kurdish-run jail in northern Syria.

“Stripping nationality is a completely ineffective measure – and an arbitrary measure,” said Amal de Chickera, co-founder of the Institute on Statelessness, which is hosting the conference in The Hague.

He said countries should retain responsibility for nationals accused of supporting ISIS and ensure they are prosecuted.

“Stripping nationality when people are abroad merely exports the problem to other countries,” he said, adding such measures were also likely to have a serious impact on families back home.

Countries should recognize that women married to ISIS fighters, and their children, may have been victimized, he told the Thomson Reuters Foundation on Friday.

The conference heard that Britain stripped nationality from more than 100 people in 2017, compared to a total of 12 people between 1950 and 2002, but most cases were done quietly.

De Chickera said it was crucial that all countries’ counterterrorism policies should not result in more people becoming stateless – which means someone is not recognized as a national by any country in the world.

To avoid making people stateless, Britain has focused on dual nationals.

But Audrey Macklin, a human rights law professor at the University of Toronto, said if all countries had laws to revoke citizenship from dual nationals then you would get a race to see who could do it first “and to the loser goes the citizen.”

“Is this a policy that makes sense as a global practice directed at making the world more secure, at reducing the risk of terrorism? To my mind, not so much,” she said.

She said citizenship was a right rather than a privilege and described citizenship deprivation followed by expulsion as the “political equivalent of the death penalty.”

The conference comes midway through a UN campaign to end statelessness in a decade. An estimated 10 to 15 million people are stateless worldwide, often deprived of basic rights.

Jawad Fairooz, a former Bahraini MP who was rendered stateless after being stripped of his nationality in 2012, said revoking citizenship should never be used as a political tool or a punishment.

Bahrain has stripped hundreds of people of nationality since a 2011 uprising although many have since regained citizenship.

“If you lose [citizenship], you lose the rest of your rights,” said Fairooz, chairman of Salam for Democracy & Human Rights.

“If you are born in a country and serve the country and you [are] part of it and quite suddenly your name is deleted from that country it is really heartbreaking.”

Source: Countries urged not to strip terror suspects of citizenship

Senate Hearings on C-6: Witnesses February 15-16

The Senate’ Social Affairs, Science and Technology (SOCI) committee started hearings this week on Bill C-6 repeal and other changes to the previous government’s C-24 legislation that made citizenship “harder to get and easier to lose”

Witnesses reflected a balance of views on the proposed changes with few surprises compared to the House Citizenship and Immigration Committee hearings last year, or for that matter, much of the discussion around C-24 in 2014.

The changed composition of the Senate compared to the 2014 C-24 review (more non-affiliated senators, Trudeau appointments) was reflected in the selection of witnesses and questions.

As expected, discussion focussed on the main elements of C-6:

Revocation (terror or treason): Witnesses from the CBA, Quebec Bar, Audrey Macklin, and Craig Forcese all supported repeal of this provision, Reis Paghtakan opposed its repeal but only for terrorist convictions in Canada, and CIJA and Julie Taub opposed its repeal in all cases. Questioning by Senators included the legal and constitutional aspects of revocation, whether or not this acted as a deterrent, and the possible impact this could have with respect to war crimes.   There was a useful discussion on the difference between revocation for misrepresentation and for crimes of terror or treason; the former pertaining to crimes committed before being granted citizenship, where misrepresentation was the issue, and crimes committed after being granted citizenship, where the issue was whether the criminal system was sufficient to handle such cases or a supplementary punishment through revocation was warranted. Needless to say, the issue of differential treatment for dual nationals and Charter rights was raised repeatedly. Forcese and Macklin noted the negative impact such differential treatment had with respect to integration and countering violent extremism.

Revocation (misrepresentation): While not part of C-6, the absence of procedural protections – paper process, no right to a hearing, no right to an appeal – was raised repeatedly with virtually all witnesses indicating this remained an issue. Most favoured a return to the previous system of appeals to the Federal Court. Taub, however, emphasized how easy it was to commit residency fraud and misrepresentation, the need for smart Permanent Resident cards to track entry and exit, but did not comment on the need or not for protections. CIJA acknowledged the need for some procedural protections but wanted to ensure that these did result in endless appeals as happened in the Oberlander case.

Language and knowledge assessment: All agreed language was important to integration. No witnesses disagreed with the proposed removal of language and knowledge testing for 14-17 year olds. Metro Toronto Chinese & Southeast Asian Legal Clinic (MTCSALC) noted time, money and educational challenges for their low-income and refugee clientele, the need for expanded language training and related supports such as child care and income support and greater flexibility to waive requirements on humanitarian and compassionate grounds. The cost of language assessment was also mentioned. CBA noted that writing the knowledge test in english or french imposed a double requirement and they would have been happy with keeping the testing requirement for 55-64 year olds but with the flexibility to do the test with an interpreter.

The most interesting recommendation was from Paghtakan, where he continues to advocate for scrapping language assessment as is a pre-requisite for economic class immigrants for permanent residency status. Duplication meant more expense to the government and more costs to immigrants. Most family class immigrants are parents and grandparents who would thus be exempt given the proposed change in age requirements while refugees could wait until they attain 55.

Chair noted earlier work by committee that showed 55-64 year olds formed about one-third of the active workforce.

Residency: Taub questioned the change in residency from four out of six years to three out of five, arguing that it was more generous than other countries and that this and other measures would increase the number of citizens of convenience. Paghtakan, while he had supported the four of six requirement of C-24, had no issue with the change to three of five given the maintenance of physical presence. The strength of Taub’s intervention on residency-related questions prompted Senator Petitclerc why all Taub’s points were so negative without mentioning the positive benefits of citizens contributing abroad. Taub cited citizens who install their family and return to the Gulf or Hong Kong where they can make more money and not pay Canadian income tax.

Intent to reside: Only Taub supported maintaining the intent to reside provision given its symbolic importance. The other lawyers testifying noted that situations can change following applying for citizenship and the consequent risk of misrepresentation cases and thus supported its repeal.

Pre-Permanent Residency time partial credit: Again, only Taub opposed restoring this pre-C-24 provision for Temporary Foreign Workers and international students, stating that this facilitated citizens of convenience.

Other issues

Oath: Paghtakan endorsed the TRC recommendation to amend the citizenship oath by adding the words “including Treaties with Indigenous Peoples” to assist new Canadians appreciate and understand this aspect of Canadian history and society.

Parental passing citizenship to children with no genetic link (in vitro): Quebec Bar raised gap in current legislation which based parental status on the genetic link (save for adoptions) rather than the relationship as in case of in vitro children.

Religious accommodation language testing: CIJA noted that many language testing centres only provided this service on Saturday (Sabbath), with extensive delays in accommodation.

Smart permanent resident card (chip or magnetic strip): Taub argued strongly that the PR card should be a smart card like any gym card that would allow tracking of entry and exit and make it easier for applicants to prove they met the residency requirements without having to search through documentation. (Comment: sounds good in theory but not a simple change, compounded by government challenges in managing complex IT projects as seen with Phoenix and Shared Services Canada.)

Fees: MTCSALC noted that the increase in citizenship processing fees from $100 to $530 made it prohibitive for many low income and refugee immigrants. The recent CBC article on the impact of citizenship fees on the number of applications was cited by Senator Eggleton. Taub argued that reduction was not just related to the increase of fees, that other factors — change in residency requirements, language testing — were also factors. She supported full cost recovery but with subsidies for low-income applicants.

Arcane Law Continues To Strip Canadians Of Citizenship

More on the ‘Lost Canadians’ issue and the few remaining cases.

While one can always do more to communicate changes – and there were efforts to do so – it is not surprising that some people only become aware when they are confronted, through renewing a passport or moving back to Canada:

The [retention provisions of the 1977 Citizenship Act] law was drafted in the 1970s out of concern that citizenship could be passed along indefinitely to generations abroad who were less and less connected to Canada, said Audrey Macklin, a law professor at the University of Toronto.

Macklin said it wasn’t necessarily unfair, at least in theory, to require someone twice removed from being born in Canada to prove a connection to the country.

The problem, though, was rooted in the government’s inability to identify and inform those people that their citizenship would “evaporate” if they didn’t take specific steps to retain it, she said.

Lindsay Wemp, a spokeswoman with Citizenship and Immigration Canada, said in an email that the immigration minister can offer discretionary citizenship in extraordinary circumstances on a case-by-case basis.

Funk said she contacted Minister John McCallum’s office in July and has yet to receive a response.

Citizenship statuses on ‘narrow hinge’

Donald Galloway, a University of Victoria law professor, said he didn’t think the government has taken the necessary steps to let people know “the narrow hinge” their status was hanging on.

“I think it’s quite shocking to live in a country where the government creates these byzantine rules and says ‘Well, it’s up to you to know the details,'” he said.

Source: Arcane Law Continues To Strip Canadians Of Citizenship

European Union Democracy Observatory on #Citizenship Revocation Workshop papers

An extensive series of papers on the issue of citizenship revocation and banishment. For the cognoscenti given the amount of the material.

Audrey Macklin’s rebuttal of those advocating revocation (Kay HailbronnerChristian Joppke and Peter Schuck) is, no surprise to those who follow my blog, convincing:

Ultimately, arguments about citizenship revocation turn on underlying conceptions of what citizenship is for, and expectations about what citizenship as legal status can achieve. Citizenship signifies membership, but beyond that general descriptor, citizenship inhabits multiple registers across many disciplines which are not reducible to or fully commensurate with one another. Citizenship as legal status is powerful because it carries the force of law, but also limited in what it can achieve for precisely the same reason. It is enabled and constrained because it is citizenship law and because it is citizenship law.

States can and do use law to promote and endorse commitment, patriotism and active citizenship. They do it through public education, programmes for social inclusion, support and assistance, support for the arts and recreation, and other policies that build solidarity and encourage ‘good citizenship’. These various spheres of public activity are enabled through legal frameworks, and so law plays an important role here. Citizenship law’s chief constructive contribution lies in imposing (reasonable) requirements for naturalisation (such as residence and language acquisition) that genuinely facilitate integration and commitment to the national community.

The state must also be concerned about ‘bad citizenship’ and it falls to the criminal justice and national security regimes to address the most egregious conduct that endangers or harms the national community. To conclude that contemporary citizenship law is ill-suited to advancing punitive goals does not deny that some people are very bad citizens, or that law plays a crucial role in addressing that fact. It simply opposes the recruitment of citizenship law to punish bad citizens by demoting them to non-citizens[9]. A man who attacks his mother may be a terrible son who deserves to be prosecuted for his crime, but it is not the job of family law to disclaim him as the son of his mother. Citizenship law is not criminal law. Nor is it national security law. Nor should it be rigged to open up a trap door that shunts citizens to immigration law.

Accounting for citizenship status’ specific legal character also guides us toward what law can (and cannot) achieve. A number of plausible accounts of citizenship’s normative foundation circulate in political theory. They typically involve some idea of commitment or allegiance, whether to the state, the constitution, or democratic self-government. I do not here express a preference among them, but rather observe that they tend to focus on the internal relationship between state and citizen, and the grounds upon which the relationship may be properly said to have ruptured. They do not attend to the external dimension of legal citizenship, namely the role of nationality in stabilising the international filing system for humanity, and they do not furnish a satisfactory normative explanation for why the ‘bad citizen’ should be assigned to another state.

Citizenship law cannot subject to legal regulation the myriad values, practices and aspirations ascribed to citizenship-as-belonging. This is unsurprising: Citizenship status enfranchises citizens above the age of majority, but there is no legal compulsion to vote (except in Australia. Belgium, Brazil and a few other states) and citizenship law does not purport to penalise those who never exercise their right or duty of active citizenship. Citizenship law does not purport to regulate access to most types of civil and social citizenship (in Marshallian terms).

Nevertheless, defenders of revocation insist that citizenship law can and should regulate ‘loyalty and allegiance’ of citizens. The criminal law can punish people for intentionally committing wrongful acts, including treason, murder, and all other forms of horrific violence that concern us here. Some assailants may openly express contempt for their country of citizenship, while others (like the Ottawa shooter Joppke cites) display a messy history of mental illness and petty criminality preceding recent conversion to Islam. The putative value added by citizenship revocation is precisely that it makes lack of allegiance and loyalty the central element in defining crimes against citizenship. But to paraphrase Aldous Huxley, loyalty and allegiance are like happiness. They are byproducts of other activities. Fostering love of country is a valid aspiration of states and worth cultivating. But it cannot be manufactured by the carrot of a citizenship oath (as Joppke has elsewhere acknowledged), nor will it be conjured by the stick of revocation. Law is not adept at producing sentiment on command.

Space constraints have led me to focus on those submissions that directly challenge my own position, and I have not responded to the cogent, provocative and creative insights offered by so many contributors. My own thinking has been deepened and provoked by them, for which I express gratitude and appreciation. I admit that I took as my remit citizenship revocation only in the literal, legal sense. I also acknowledge the criticism that confining my focus to citizenship revocation does not pay due regard to the claim that deportation of non-citizens may also constitute banishment in some circumstances, with attendant human rights implications. I hope that nothing I have said here gives the appearance of foreclosing or prejudging broader or different conceptions of banishment. There is always more to be said, and much to be done.

Source: EUDO CITIZENSHIP

Blood, soil, birth tourism and anchor babies – Globe Editorial

The Globe’s editorial take on birth tourism – evidence-based policy, which Minister Alexander appears committed to, given his and his spokesperson’s recent comments stating that decisions “will be informed by facts” (in contrast to earlier anecdotes dramatizing the issue):

At present, however, birth certificates are the most common proof of Canadian citizenship. They do not include any information about a newborn baby’s parents’ citizenship.

Hospitals are a provincial jurisdiction. That is one of the reasons why the provinces and territories have been in charge of birth certificates for a long time. The subnational governments of Canada would doubtless not be eager to spend a huge amount of money to overhaul their birth-certificate system – let alone unanimously.

Ottawa could choose to foot the bill. But if the government is to go any further, it should commission a rigorous study to discover whether so-called birth tourism is a significant phenomenon. So far, the evidence is anecdotal. The available numbers in a given year are in the low hundreds. The real numbers may be higher, but it would be premature to remake the basics of our citizenship on a hunch.

Blood, soil, birth tourism and anchor babies – The Globe and Mail.

Related to this, the BC Civil Liberties Association and the Canadian Association of Refugee Lawyers (Carmen Cheung and Audrey Macklin) wrote a comprehensive response to the earlier Jan Wong article on birth tourism (see my post Canada’s birthright citizenship policy makes us a nation of suckers):

But how serious an issue is birth tourism? While the government does not publish statistics on actual cases of birth tourism, Statistics Canada reports that of the 377,913 live births recorded in Canada for 2011, only 277 of those were by mothers who lived outside of Canada. The numbers were slightly higher in 2010 – 305 babies born to non-resident mothers out of 377,518 live births. That is less than one tenth of one percent of all births in Canada.

A recent article in Toronto Life magazine proposed another metric for measuring birth tourism, by collecting the number of uninsured mothers giving birth in Toronto-area hospitals over a five-year period. Based on those numbers, we’re still looking at less than one percent of all live births in the city of Toronto.

Using the number of uninsured mothers as a proxy also likely overstates the problem. Provincial health cards are only issued after a minimum period of residency in the province – this is the case whether an individual has arrived from another country as a landed immigrant, or has just moved from British Columbia to Ontario. There are also foreign nationals who are excluded from provincial health care schemes, such as students, temporary foreign workers and diplomats. Particularly vulnerable Canadian citizens – such as the homeless or transient – may also not be able to prove their eligibility for provincial health insurance because of lost documentation.

By any measure, the number of babies born to non-resident non-Canadian mothers is negligible.

Born Equal: Citizenship by Birth is Canada’s Valuable Legacy

ICYMI: Immigration experts say Bill C-24 discriminatory and weakens citizenship

Star overview on the impact of the changes in C-24 Citizenship Act changes from the perspective of the major critics of C-24. Would have been better to include some of the supporters as well for balance (e.g., Collacott, Saperia, Siddiqui):

He [Alexander] seems to relish the idea of rewriting what it is to be Canadian and to hold citizenship. “If there was a time when new Canadians made the mistake that we only had a peacekeeping tradition or our rights and freedoms began with the Charter, then I’m glad our reforms are broadening their perspective.”

Neither he nor the Conservative Party seem worried about the ongoing debate Bill C-24 has triggered across the nation. “This act reminds us where we come from and why citizenship has value,” said the minister. “When we take on the obligations of citizens we’re following in the footsteps of millions of people who came here and made outstanding contributions over centuries. And we are celebrating that diversity, solidifying the order and rule of law we have here; we’re committing ourselves to participate as citizens in the life of a very vibrant democracy.”

Immigration experts say Bill C-24 discriminatory and weakens citizenship | Toronto Star.

Case of Mohamed Fahmy shows failing of new citizenship rules | Macklin and Waldman

More from Macklin and Waldman on C-24 Citizenship Act revocation provisions and the possible implications for cases like Mohammed Fahmy’s, and the discretion it gives the Minister (Government has indicated they will not revoke Fahmy’s citizenship):

These cases are simply three examples that show why the new citizenship law has been condemned as fundamentally flawed and why several organizations have indicated they will challenge it under the Charter. The law will create two classes of citizens: dual citizens who are vulnerable to revocation and those who are not. But the bill is also problematic in other ways. Naturalized citizens unlike citizens by birth will not be able travel and live abroad for extended periods without fear of jeopardizing their citizenship. Other provisions will make citizenship more inaccessible to those who need it most — refugees.

Instead of listening to the legitimate concerns of those who criticized the legislation, the government attacked the messengers and impugned their motives. Undoubtedly the government thinks that this new law will be well received by its conservative base. We think that when most Canadians come to realize the implications of this new legislation they will reject it. Canada is a big country, but there is no room for second-class citizenship.

Case of Mohamed Fahmy shows failing of new citizenship rules | Toronto Star.

Dual citizenship can complicate diplomatic protection

A good overview on some of the implications on dual citizenship when visiting one’s country of origin, in light of the Mohammed Fahmy verdict (Mohamed Fahmy, jailed Egyptian-Canadian journalist, sentenced to 7 years).

A counter example to some of the comments on the Government side during the debate on C-24 Citizenship Act, who talked about the benefits of dual citizenship, not the risks.

As Macklin notes, some countries do not allow dual nationals to enter with their Canadian passports:

As well, unlike Canada, many countries, in particular non-G8 countries, do not recognize dual citizenship. Canada doesn’t require an individual to give up any citizenship of another country. But whether that persons country of origin recognizes their dual citizenship is a question from country to country, Niren said.

Some applicants will have to give up their home citizenship because they’re not going to be recognized anymore. For example, many Chinese nationals coming to Canada must give up their Chinese citizenship, as China doesn’t recognize dual citizenship.

A government of Canada website also cautions Canadians who have dual citizenship that it “may not be legal in the country of your second nationality, which could result in serious difficulties.

“You may have outstanding obligations in the second country, such as military service or taxes. Dual citizenship can also cause problems in a third country if there is confusion over which citizenship you used to gain entry,” the website says. It advises people to contact the appropriate foreign government office in Canada before heading abroad.

Some countries may also feel more justified on their claim on a dual citizen who has gotten in trouble with the law if that person used that country’s passport to enter.

An easy solution for Canadians would seem to be to always use their Canadian passport.

But “some countries take the position that they don’t mind if you’re a dual citizen, we don’t care, but when you’re coming into our country, you use your passport from this country,” Macklin said.

Dual citizenship can complicate diplomatic protection – Canada – CBC News.

Citizenship Act will create two classes of Canadians – Macklin, Adams and Omidvar

Audrey Macklin, Michael Adams and Ratna Omidvar on the proposed changes to the Citizenship Act:

Some Canadians commit serious crimes. The foreign-born are no more likely than the Canadian-born to do so (some evidence suggests they are less likely to) but small numbers in each group do break the law. Nor are dual citizens more likely than mono-citizens to commit crimes. Today, citizens (including foreign-born and dual citizens) are equal before the law and are treated the same way as other Canadians if they are accused of a crime. They undergo due process and, if convicted, are punished according to the provisions of the Criminal Code of Canada. If their crimes are committed abroad, the procedures are different but their treatment by the Canadian government is identical.

Adding citizenship revocation as an extra prospective punishment for dual citizens (many of whom, but not all, are foreign-born) is tantamount to creating a second class of citizenship. This is a change that cuts to the core of what it means to be Canadian – and in order to solve what problem?

Canadian citizenship is a solution, not a problem. Canada has traditionally had exceptionally high naturalization rates; nearly nine in 10 immigrants (89 per cent) have become Canadian citizens. This pattern has been praised as a strength of our immigration program: a sign that immigrants are invested in Canada and Canada is invested in the successful integration of its immigrants.

When immigrants become citizens they can vote, stand for office (and win: in 2011, 44 of our sitting MPs were born outside the country), and generally become fully contributing, fully participating members of Canadian society. To turn citizenship from a tool of integration into a reward for good behaviour – to be revoked at the discretion of one minister on grounds of bad behavior and without due process – is to undermine the meaning and value of citizenship for all Canadians.

Citizenship Act will create two classes of Canadians – The Globe and Mail.

Tories speed up plan to give minister power to strip citizenship – The Globe and Mail

More debate on the proposed revocation measures, particularly with respect to revocation for fraud and Ministerial decision-making. The previous revocation process was largely unworkable:

Mr. Alexander told CTV this week the existing revocation process is “one of the most time-consuming, document-intensive bureaucratic processes I’ve ever seen.” His spokeswoman, Codie Taylor, said the unilateral system is meant to “reduce duplication and bureaucracy. We are making the citizenship system more efficient, which will result in decreased backlogs and improved processing times.”

Canada can’t leave a person stateless under international treaty law, so the rules apply only to dual citizens. The law also puts the onus on those accused to prove they’d be left stateless – not on government to prove they wouldn’t. Mr. Alexander also now has the sole right to grant “discretionary” citizenship, though the government says it will not make public the list of those who get it.

The changes in Bill C-24 omit Sections 10 and 18 of the existing Citizenship Act, which dealt with revocation and a subject’s right to appeal to court. While court will no longer be an option in some cases, Winnipeg immigration lawyer David Matas noted other cases actually will be sent to a higher court than before. “This new legislation, as far as I can see, is an improvement,” he said.

Tories speed up plan to give minister power to strip citizenship – The Globe and Mail.