Maryam Monsef case highlights ‘absurdity’ of Canadian law, refugee lawyers say

The Minister did commit during parliamentary committee hearings last spring to address the lack of due process for citizenship revocation in cases of fraud or misrepresentation. This court challenge likely reflects frustration that no action has been taken to date:

Maryam Monsef could be stripped of her citizenship without a hearing under a law the Liberals denounced while in opposition but which they’ve been enforcing aggressively since taking power, civil liberties and refugee lawyers say.

The democratic institutions minister revealed last week that she was born in Iran, not Afghanistan as she’d long believed. She said her mother, who fled Afghanistan with her daughters when Monsef was 11, didn’t think it mattered where the minister was born since she was still legally considered an Afghan citizen.

Monsef has said she will have to correct her birthplace information on her passport.

If Monsef’s birthplace was misrepresented on her citizenship application as well, that would be grounds for revocation of citizenship, regardless of whether it was an innocent mistake or the fault of her mother, said immigration lawyer Lorne Waldman.

Misrepresentation could lead to deportation

And if the misrepresentation was on her permanent residence and refugee applications, she could even be deported, said Waldman, part of a group that launched a constitutional challenge of the law Monday.

The Canadian Association of Refugee Lawyers and the British Columbia Civil Liberties Association argue that the law, known as Bill C-24, is procedurally unfair and a violation of the Charter of Rights and Freedoms.

Josh Paterson, the BCCLA’s executive director, said Monsef’s case demonstrates the absurdity of the law, which was passed by the previous Conservative government.

“The minister’s situation … is exactly the kind of situation that many other Canadians are facing right now because of this unjust process,” Paterson told a news conference.

“When we get a parking ticket, we have a right to a court hearing … You leave your garbage in the wrong place and you get a ticket, you have the right to a hearing and yet for citizens to lose their entitlement to membership in Canada based on allegations of something they may or may not have said 20 years ago, they have no hearing? It just doesn’t make any sense.”

Law to be enforced

When he was in opposition, John McCallum denounced the law as “dictatorial” and since becoming immigration minister, he’s promised to amend it to create an appeal process, Paterson said.

Nevertheless, repeated requests that the government stop enforcing the law until it can be changed have been ignored. As recently as two weeks ago, Paterson said Justice Department lawyers informed his group that the law would continue to be enforced.

Source: Maryam Monsef case highlights ‘absurdity’ of Canadian law, refugee lawyers say – Politics – CBC News

Feds reviewing inland refugee system, under pressure to scrap ‘safe countries’ list

Another issue to watch in terms of how the Liberal government finds a balance between maintaining the integrity of refugee determination and rights of refugee claimants:

The Liberal government is re-evaluating the way it treats refugee claimants who ask for protection after arriving in Canada, but won’t say whether it will scrap some of the widely criticized restrictions on some refugee claimants brought in by the previous government.

Government officials met with refugee advocacy groups and researchers July 14 to gather suggestions on what to do with Canada’s asylum system, which is used to process applications for refugee status by people who have already arrived in the country. People brought in from refugee camps abroad are processed in a different way. In 2014-15, the tribunal that decides on refugee claims in Canada was referred 13,500 claims, and the next year that creeped up to 16,500.

The government’s controversial Designated Countries of Origin (DCO) list was one of the key topics of the July 14 meeting, said Janet Dench, executive director of the Canadian Council for Refugees.

The DCO or “safe countries” list was created by the previous Conservative government, and includes countries that, according to the government, do not usually produce legitimate refugees. The list—which currently includes 42 countries—was designed to “ensure that people in need get protection fast, while those with unfounded claims are sent home quickly through expedited processing,” says the Immigration, Refugees, and Citizenship Canada website.

However, an internal IRCC audit released this summer found that DCO claims had not been processed faster than those from other countries, leading NDP immigration critic Jenny Kwan (Vancouver East, B.C.) to question what the point of the system was.

The Liberals promised during the election campaign to set up an “expert human rights panel” to determine which countries should fall on the DCO list. Since the Liberals came to power, the government has said little about how it will fulfill this promise, and IRCC and the office of Immigration Minister John McCallum (Markham-Thornhill, Ont.) declined to provide details when asked.

The promise of an expert panel wasn’t good enough to satisfy critics of the DCO list, such as the Canadian Association of Refugee Lawyers (CARL) or Canadian Council for Refugees. CARL wrote in a brief submitted to the government in July that a human rights panel “cannot cure what is, at root, a discriminatory regime, introduced into the legislation for discriminatory purposes,” a sentiment Ms. Dench said was echoed by many in the July 14 consultation.

“There was a very clear message to the government from everybody that the designated-country-of-origin policy was not useful, was not credible, was not serving any purpose and was contrary to the [Canadian Charter of Rights and Freedoms],” she said.

 Critics say the DCO system kneecaps claimants from listed countries because they’re rushed through the process. They also say so-called safe countries may in fact be quite dangerous, at least to some persecuted groups or in some areas.

When asked a series of questions about the DCO system and the establishment of the expert panel, IRCC spokesperson Remi Lariviere wrote in an emailed statement that the government was considering how to make Canada’s asylum system “more fair and timely,” in part as a response to this summer’s consultations on the immigration system and to the IRCC internal audit, which identified several concerns with the system’s fairness and efficiency.

The Liberal party had also promised on the campaign trail to provide a right for claimants from DCO countries to appeal decisions by the Immigration and Refugee Board, an arm’s-length tribunal, a right they had been denied under the system set up by the Conservatives. The Liberal government has already fulfilled that promise by dropping a legal challenge initiated under the previous government to a Federal Court ruling last year, which held that the ban on appeals by DCO claimants was unconstitutional.

Department finds ‘need to reform’ system

The previous Conservative government overhauled the inland refugee system in 2012, after a rising number of refugee claims, few of which were accepted and many of which stemmed from countries the government of the day perceived to be generally safe, such as Mexico and Hungary. Canada had also recently seen two ships arrive on its shores with dozens of migrants from Sri Lanka who claimed asylum.

The IRCC conducted an audit of its asylum system at the instruction of the Treasury Board, which had committed to a review of the program three years after major reforms by the Conservative government. The audit covered the period from December 2012 to December 2014. In addition to a number of positive findings about the way the asylum system was operating, it identified a series of shortcomings in Canada’s asylum system, including that DCO claimants were not processed faster than non-DCO claimants.

The audit also found “a need to reform the in-Canada asylum system due to the increasing number of claims, growing backlogs/inventories, and lengthy processing times,” and that “failed claimants are not being removed in a timely manner.”

Source: The Hill Times

Court challenge slams new Citizenship Act as ‘anti-Canadian’

The expected court challenge by BCCLA and CARL. We will see whether or not the assertions of the Government regarding these changes to the Citizenship Act being constitutional hold water:

This citizenship-stripping law is unjust, legally unsound and violates the core values of equality enshrined in the Charter of Rights and Freedoms,” says Toronto lawyer Lorne Waldman, one of the litigators handling the case and a member of the executive of the Canadian Association of Refugee Lawyers.

“With this law the federal government shows a flagrant disregard for these values, and for the basic rights of all Canadians. We are asking the court to strike the law down.”

The Minister of Immigration Chris Alexander vigorously defended Bill C-24 both when it was first introduced and as it was debated in Parliament.

…“The value of citizenship has never been more widely recognized as it is today, but it only has value because there are rules governing it,” Alexander told the Star last year, rejecting the growing criticism and opposition to the act.

“Citizenship of course involves rights and enormous privileges in Canada, but it also, for those of us born here and for naturalized Canadians, involves responsibilities.

“This act reminds us where we come from and why citizenship has value. 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’re celebrating that diversity, solidifying the order and rule of law we have here.”

But according to Waldman, the law doesn’t do that at all, but rather creates two classes of citizens, a profoundly unfair process and exposes many Canadians to not only losing their citizenship without due process but also their rights to move and travel out of the country.

…“All Canadian citizens used to have the same citizenship rights, no matter what their origins,” says Josh Paterson, executive director of the BCCLA. “Now this new law has divided us into classes of citizens — those who can lose their citizenship and those who can’t. Bill C-24 is anti-immigrant, anti-Canadian, and anti-democratic. It undermines — quite literally — what it means to be Canadian.”

This is fundamentally an issue of equality, Paterson says in an interview with the Star.

Court challenge slams new Citizenship Act as ‘anti-Canadian’ | Toronto Star.

Refugee health-care advocates criticize government inaction

The risks of trying to be too clever in  implementing partially a Federal Court ruling. Will see the Court rules on the motion:

The Canadian Association of Refugee Lawyers and the Canadian Doctors for Refugee Care, however, say the government re-repealed that measure on Nov. 6, 2014, only two days after it was supposed to restore the health coverage.

The advocates first pointed out the return to the repealed measure in December, but the Canadian Medical Association Journal drew attention to it in an article published Wednesday.

Waldman said the Federal Court was clear the government was supposed to restore the pre-2012 coverage. He’s filed a motion to the court asking for a finding that the government has breached the court order.

A spokesman for Immigration Minister Chris Alexander declined an interview request and responded by email. He called the court ruling “flawed.”

“Our government is defending the interests of Canadian taxpayers as well as the integrity of our refugee determination system,” Kevin Menard wrote.

“We have implemented temporary health-care measures as per the Federal Court’s ruling on Nov. 5. Regrettably, the Federal Court’s ruling is costing taxpayers an extra $4 million a year.”

Dr. Philip Berger, one of the founders of Canadian Doctors for Refugee Health, says the government showed contempt for refugee claimants and doctors and is now extending that contempt to the Federal Court.

“There’s nothing the federal government says about refugee health that can be believed,” he said.

“The costs have simply been downloaded to the provinces and to hospitals who must see people in emergency departments and doctors who are prepared to provide coverage for free.”

Refugee health-care advocates criticize government inaction – Politics – CBC News.

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

Federal government to appeal ruling reversing cruel cuts to refugee health

No surprise that the Government intends to appeal, what is strong condemnation from the federal judge against the cuts to refugee claimant healthcare and a major victory for refugee advocates, if the decision is upheld by the Federal Court of Appeal and possibly Supreme Court:

Alexander said in a statement that the government “will vigorously defend the interests of taxpayers and … the integrity of our fair and generous refugee determination system.”

The court found the governments treatment of refugees is “cruel and unusual” because it jeopardizes their health and shocks the conscience of Canadians.

Judge Anne Mactavish ruled the federal cabinet has the power to make such changes and that the procedure was fair, but that the people affected by the changes are being subjected to “cruel and unusual” treatment.

“This is particularly, but not exclusively, so as it affects children who have been brought to this country by their parents,” Mactavish wrote in the 268-page decision.

“The 2012 modifications to the [Interim Federal Health Program] potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages Canadian standards of decency. “I have found as a fact that lives are being put at risk.”

Given refugee reform, particularly the safe country provisions, that have resulted in dramatic declines in numbers of refugee claimants (from 20,503 in 2012 to 10,372 in 2013 if my reading of the stats is correct).

Given this decline, and  consequent reductions in health costs, questionable whether the original rationale is as strong as before, Ministerial rhetoric notwithstanding.

Federal government to appeal ruling reversing cruel cuts to refugee health – Politics – CBC News.

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.

Five bills likely to stoke Harper’s conflict with Supreme Court

On the list:

C-24, the “Strengthening Canadian Citizenship Act,” received royal assent and became law June 19.

The government billed C-24 as a once-in-a-generation overhaul of citizenship law, but some of its provisions proved deeply divisive. Foremost among those is a clause that allows the government to strip citizenship from Canadian-born citizens if they’ve been convicted of treason, espionage or terrorism and have citizenship in another country.

Toronto lawyer Rocco Galati launched a legal challenge against the provision on June 25, saying the government doesn’t have the constitutional authority to make the change. That was after several earlier warnings during committee consideration of the bill.

“It appears to be against the Charter, and I expect there will be significant litigation,” Barbara Jackman, a member of the Canadian Bar Association’s National Immigration Law Section, told a Senate committee considering the bill.

The CBA also took issue with a change in the bill that asks applicants to declare an intent to reside in Canada. Citizenship and Immigration Minister Chris Alexander has brushed aside concerns, saying Canadians aren’t required to stay in the country, but critics have pointed to provisions in the bill that allow citizenship-stripping in cases of fraud, and asked whether the “intent” clause could be considered in a fraud case. The CBA said the provision is “likely unconstitutional.

”Mr. Alexander assured a committee studying the bill that it was constitutional, a point put to Ms. Jackman by the committee.“I would remind the committee that [government has] passed other legislation that, again and again, the Supreme Court of Canada has struck down just recently. So the fact that the Department of Justice and the minister say it is constitutional doesn’t mean it is,” she replied.

Audrey Macklin, a professor and Chair in Human Rights Law at the University of Toronto, echoed many of the warnings on Charter compliance but also said that under C-24, those about to be stripped of citizenship are given the onus to prove they do not hold citizenship elsewhere – which would stop the process, as Canada won’t leave someone stateless – rather than making the government prove that person does hold citizenship elsewhere. Prof. Macklin warned that such a “reverse-onus provision” also violates the Charter.

The Canadian Civil Liberties Association also has raised warnings about the constitutionality of C-24.

“CCLA is seriously concerned that Bill C-24 has created a second tier of citizenship that is incompatible with equality principles,” General Counsel and Executive Director Sukanya Pillay said in an e-mail. “…We must remember that citizenship includes rights, and to strip individuals of citizenship is to re-introduce archaic punishments such as exile and banishment – the possibility of statelessness is also a serious concern. Any arbitrary loss of citizenship is incompatible with democratic values and fundamental rights.”

Five bills likely to stoke Harper’s conflict with Supreme Court – The Globe and Mail.

Government welcomes Royal Assent of Bill C-24, Civil Liberties Groups Plan Legal Challenge

Key messages from the CIC’s Press Release:

Improving efficiency

Canada’s citizenship program is being improved by reducing the decision-making process from three steps to one. It is expected that, by 2015–2016, this change will bring the average processing time for citizenship applications down to under a year. It is also projected that by 2015-2016, the current backlog will be reduced by more than 80 percent.

Reinforcing the value of Canadian citizenship

The government is ensuring citizenship applicants maintain strong ties to Canada. These amendments to the Citizenship Act provide a clearer indication that the “residence” period to qualify for citizenship in fact requires physical presence in Canada.

More applicants will now be required to meet language requirements and pass a knowledge test to ensure that new citizens are better prepared to fully participate in Canadian society. New provisions will also help individuals with strong ties to Canada, such as by automatically extending citizenship to additional “Lost Canadians” who were born before 1947 as well as to their children born in the first generation outside Canada.

Cracking down on citizenship fraud

The updated Citizenship Act includes stronger penalties for fraud and misrepresentation a maximum fine of $100,000 and/or five years in prison and expands the grounds to bar an application for citizenship to include foreign criminality, which will help improve program integrity.

Protecting and promoting Canada’s interests and values

Finally, the amendments bring Canada in line with most of our peer countries, by providing that citizenship can be revoked from dual nationals who are convicted of serious crimes such as terrorism, high treason and spying offences depending on the sentence received or who take up arms against Canada. Permanent residents who commit these acts will be barred from citizenship.

As a way of recognizing the important contributions of those who serve Canada in uniform, permanent residents who are members of the Canadian Armed Forces will have quicker access to Canadian citizenship. The Act also stipulates that children born to Canadian parents serving abroad as servants of the Crown are able to pass on Canadian citizenship to children they have or adopt outside Canada.

Government welcomes Royal Assent of Bill C-24 – Canada News Centre.

And the press release from the Canadian Association Of Refugee Lawyers and British Columbia Civil Liberties Association (BCCLA):

Bill C-24, introducing sweeping changes to Canada’s citizenship laws that make citizenship harder to get and easier to lose, has passed through the House of Commons and is now being considered by the Senate.  CARL, BCCLA and Amnesty International take the position that this proposed law has dramatically negative effects on Canadian citizenship, eliminating equal citizenship rights for all, and violates the Charter of Rights and Freedoms as well as international human rights. According to the organizations, the new law will take away rights from countless Canadians, creating a two-tier citizenship regime that discriminates against dual nationals and naturalized citizens.

“This proposed law would allow certain Canadians to be stripped of citizenship that was validly obtained by birth or by naturalization. We think that is unconstitutional, and we intend to challenge this law if it is passed,” said Lorne Waldman, President of the Canadian Association of Refugee Lawyers. “We have presented our arguments to the House of Commons and to the Senate, in an attempt to get them to change or stop this Bill. But the government hasn’t listened, it refuses to amend the bill, and we feel we will have little choice but to challenge it in the courts.” …

“The ‘Strengthening Canadian Citizenship Act’ does exactly the opposite of what the title proclaims. It makes citizenship less secure,” said Josh Paterson, Executive Director of the BC Civil Liberties Association. “In Canada, lawfully-obtained citizenship has always been permanent – once a Canadian, always a Canadian – and all Canadians have always had equal citizenship rights. This bill turns the whole idea of being Canadian upside-down, so that the Canadian citizenship of some people will be worth less than the Canadian citizenship of others. That is wrong, and it must be challenged.”

PRESS RELEASE: New citizenship law will be challenged on constitutional grounds, if passed, say rights groups

In case you missed it, my assessment, The new citizenship act is efficient. Is it fair?