Second son of Russian spies wins legal battle over Canadian citizenship | The Star

Government right to appeal given that their parents were clearly employees of a foreign government, just not on the official diplomatic list. Splitting hairs, IMO: the child of a Russian, American or other spy under diplomatic cover would not be granted citizenship at birth, the child of a spy not under diplomatic cover would:

Timothy Vavilov, a Toronto-born son of Russian spies, has won a court victory that effectively affirms his Canadian citizenship, four years after the government rebuffed an attempt to renew his passport.

The Federal Court of Canada ruling follows a similar decision in the case of his younger brother, Alexander.

However, the Supreme Court of Canada will have the final say on whether the young men are Canadian citizens. The high court is expected to rule soon on whether it will examine the legal issues at the heart of the unusual espionage saga.

The brothers — Timothy, 27, and Alexander, 23 — were born in Canada in the 1990s to parents using the aliases Donald Heathfield and Tracey Ann Foley.

The parents were arrested eight years ago in the United States and indicted on charges of conspiring to act as secret agents on behalf of Moscow.

In all, 11 people — four of whom claimed to be Canadian — were indicted on charges of conspiring to act as agents in the U.S. on behalf of the SVR, successor to the notorious Soviet KGB.

Heathfield and Foley admitted to being Andrey Bezrukov and Elena Vavilova.

Timothy tried to renew his Canadian passport in 2011, but was told to first apply for a Canadian citizenship certificate. He did so in 2013, and in November the following year the application was denied by a federal citizenship official.

The analyst concluded that Timothy’s parents were employees of a foreign government when he was born and therefore, under the provisions of the Citizenship Act, he was not a Canadian.

Just months earlier, the government had used the same rationale to strip Alexander of his citizenship.

Alexander successfully challenged the decision, with the Federal Court of Appeal ruling in his favour last year. The appeal court said the provisions shouldn’t apply because the parents did not have diplomatic privileges or immunities while in Canada.

Alexander has since been able to renew his Canadian passport, and he hopes to live and work in Canada — calling his relationship with the country a cornerstone of his identity.

Although it involves the same central issue, Timothy’s case has proceeded through the courts separately.

In his April 25 decision, Federal Court Justice Patrick Gleeson said the ruling in the younger brother’s case equally applies to Timothy, making him “a citizen.”

But the brothers face what is likely a final legal hurdle.

The federal government wants to contest the Federal Court of Appeal decision in Alexander’s case in the Supreme Court.

In its application to the high court, the government says the citizenship registrar’s conclusion — that Alexander is not Canadian — was “rational and defensible.”

Hadayt Nazami, lawyer for the brothers, says in a filing with the court that acceptance of the federal position “would result in uncertainty about an individual’s fundamental right to citizenship.”

The Supreme Court could decide as early as next month whether it will hear the case.

via Second son of Russian spies wins legal battle over Canadian citizenship | The Star

Federal stand in Russian spy case would breed citizenship ‘uncertainty’: lawyers

Interesting but unconvincing argument:

The federal government’s rationale for trying to deny Canadian citizenship to the Toronto-born son of Russian spies leads down an “absurd and purposeless” path, the young man’s lawyers argue.

They’re asking the Supreme Court of Canada to dismiss the government’s application for a hearing of the legal issues at the heart of the strange espionage saga that has left Alexander Vavilov, 23, in limbo.

Accepting the federal position “would result in uncertainty about an individual’s fundamental right to citizenship,” Vavilov’s counsel say in a brief filed with the high court.

The Supreme Court will announce in coming weeks whether it’s going to hear the case, though no date has been set for the decision.

The government is appealing a ruling that returned Canadian citizenship to Vavilov after it was revoked by Ottawa.

Vavilov, 23, was born in 1994 as Alexander Philip Anthony Foley to Donald Heathfield and Tracey Ann Foley. The following year the family — including an older boy, Timothy — left Canada for France, where they spent four years before moving to the United States.

The FBI turned up at the family’s Boston-area home eight years ago. In all, 11 people — four of whom claimed to be Canadian — were indicted on charges of conspiring to act as secret agents on behalf of the SVR, the Russian Federation’s successor to the notorious KGB.

Heathfield and Foley admitted to being Andrey Bezrukov and Elena Vavilova.

The FBI said Bezrukov had based his cover identity on the birth record of a baby with the surname Heathfield who died in Montreal at the age of six weeks in early 1963.

Bezrukov and Vavilova were among those sent back to Moscow — part of a swap for prisoners in Russia.

Alexander finished high school in Russia, studying in English.

He changed his surname to Vavilov on the advice of Canadian officials in a bid to obtain a Canadian passport. But he ran into trouble at the passport office and in August 2014 the citizenship registrar informed Vavilov the government no longer recognized him as a citizen of Canada.

The registrar said his parents were employees of a foreign government at the time of his birth, making him ineligible for citizenship. The Federal Court upheld the decision two years ago.

Last June the Federal Court of Appeal set aside the ruling and threw out the registrar’s decision. It said the provisions of the Citizenship Act cited by the registrar shouldn’t apply because Vavilov’s parents did not have diplomatic privileges or immunities while in Canada.

In its application to the Supreme Court, the federal government says the registrar’s original decision was “rational and defensible.”

The appeal court’s interpretation, on the other hand, means the legislative provisions in question deny citizenship to children of foreign intelligence agents posted to an embassy and benefiting from diplomatic privileges, while allowing citizenship for children of undercover intelligence agents engaged in surreptitious espionage.

In their filing with the Supreme Court, Vavilov’s lawyers say the government’s view of the Citizenship Act is unreasonable and would lead to absurd outcomes.

Aside from diplomatic or consular officers, many foreign governments employ people in Canada through a wide range of state-owned enterprises including banks, airlines, energy companies and other national ventures, they point out. The government’s stance would expand the exception to citizenship by birth to encompass all children born to parents working for such employers.

“This would mean, for example, that children born to employees of foreign private oil companies operating in Alberta would be Canadian, while those born to employees of state-owned oil companies would not,” the submission reads.

“Similarly, children born to employees of foreign private airlines working at Canadian airports would be Canadian, while children born to employees of state-owned airlines working in those same airports would not.

“These results are absurd and purposeless.”

Limiting the exception to citizenship to children born to foreign officials or employees who enjoy diplomatic immunities and privileges provides far greater certainty, Vavilov’s lawyers conclude.

In a reply, the government characterizes the examples as “hypothetical scenarios” that “would undoubtedly be more complex and benefit from this court’s guidance in the present case.”

Timothy Vavilov, 27, also went to Federal Court after being stripped of Canadian citizenship, and the outcome of his case could ultimately hinge on the result of his brother’s proceedings.

Source: Federal stand in Russian spy case would breed citizenship ‘uncertainty’: lawyers

Son of Russian spies can travel home to Canada, judge rules

I agree with the government on this one. And the brothers have lived abroad most of their lives with the main connection to Canada being their passport:

A judge has ordered the Trudeau government to issue citizenship documents—and a passport—to the Toronto-born son of elite Russian spies, ruling that the 23-year-old should be allowed to return to Canada even though the Supreme Court is still pondering whether to hear one last appeal in his controversial case.

Alexander Vavilov was stripped of his Canadian citizenship “through no fault of his own,” the judge ruled, and after winning it back last summer at the Federal Court of Appeal, he should not be forced to wait in limbo while Ottawa tries to convince the country’s top court to overturn that decision. Instead, the Liberals should reinstate Vavilov’s revoked citizenship—and allow him to come home—pending any potential ruling from the Supreme Court.

“It is difficult to accept that issuing these documents to this one person will cause significant and irreparable harm to the public interest,” wrote Justice Wyman Webb of the Federal Court of Appeal, in his Jan. 19 decision. “There is no allegation that Mr. Vavilov did anything wrong.”

Ottawa has fought for years to keep Vavilov from re-entering his country of birth, and despite this latest ruling the government is still doing all it can to keep him out. Instead of conceding defeat, Justice Department lawyers filed yet another motion last week, asking the Federal Court of Appeal to reconsider. The feds remain adamant that nothing should happen on the contentious file until the Supreme Court decides, once and for all, whether Vavilov is indeed a Canadian.

The high court has yet to announce whether it will weigh in on the matter, and is under no deadline to do so.

Vavilov was born in Toronto in 1994 as Alexander Philip Anthony Foley, the second son of a husband-and-wife team of deep-cover KGB agents who slipped into Canada during the Cold War and stole the identities of two dead babies from Montreal: Donald Howard Heathfield and Tracey Lee Ann Foley. Alex and his older brother, Timothy, spent their childhood oblivious to the fact that their parents’ real names were Andrey Bezrukov and Elena Vavilova, or that their mom and dad were prized assets of Russia’s foreign intelligence service. The boys were still young when the family moved to France, then Massachusetts—where, in 2010, the couple was arrested in a high-profile FBI raid that later inspired the hit TV series The Americans. Tim was 20 when his parents were exposed; Alex was 16.

After the bust made headlines around the world, immigration officials in Ottawa concluded that both brothers were never Canadian to begin with, despite being born here, because their parents were “employees in Canada of a foreign government,” a rare exception to the birthright rule under the Citizenship Act. Now Russian citizens who changed their last name to Vavilov, Alex and Tim have been battling in court to regain their Canadian status, arguing, among many other things, that they should not be punished for their parents’ espionage.

Though they lived abroad most of their lives, the brothers always travelled with Canadian passports and identified themselves as Canadians. “It is an integral part of my identity, the way others recognize me and is a recognition of certain values,” Alex told Maclean’slast year. “It is unacceptable that that the government may strip me of my rights just because it wants to.”

The feds appear especially eager to keep Tim, the eldest brother, from coming back. According to a report prepared by a senior immigration official, the Canadian Security Intelligence Service (CSIS) has told the government that Tim not only knew the truth about his parents’ double lives, but had pledged to join them—having been “sworn in” by the SVR, the KGB’s post-Soviet successor, before his mother and father were arrested.

Specific evidence to support that claim has never been revealed, and Tim, now 27, denies the accusation. “I am aware that there have been some media reports that my parents were ‘grooming’ me for espionage,” he wrote in one sworn affidavit. “These allegations are not true. It has been stated by the FBI that for over 10 years my home was bugged, however no evidence of my involvement has ever been presented.”…

via Son of Russian spies can travel home to Canada, judge rules –

The Russian spies who raised us

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

The Sons of Russian Spies Want Their Canadian Citizenship Back | Time

Interesting case and curious to see how the court rules:

The sons of two Russian spies are insisting that the Canadian government has wrongfully stripped them of their Canadian citizenships after their parents’ true identities were discovered and the family was deported to Russia.

Alexander and Timothy Vavilov, 21 and 25 respectively, were both born in Toronto, Canada, but were stripped of their citizenship after their parents, Andrey Bezrukov and Elena Vavilova, were discovered as “deep cover” Russian spies in the U.S., according to Canadian tabloid newspaper, the Toronto Star.

The Vavilovs insist that they knew nothing of their parents’ spying and have taken the Canadian government to court to have their citizenship certificates reinstated. Alexander is now studying in Europe while his brother, Timothy, works in finance in Asia.

The Canadian government says that they don’t have to reinstate their citizenships as their parents worked for a foreign government while in Canada, even though the couple denied that they did any spying while in the country.

The Vavilovs’ lawyer, Hadayt Nazami, told the Star that “punishing children for the deeds of their parents is morally and legally wrong.”

Bezrukov and Vavilova came to Canada to develop “legends” to facilitate their spying endeavors in the U.S. There, they adopted the identities of two dead Canadians, Donald Heathfield and Tracey Ann Foley, according to the Star.

After leaving Canada, they moved to France and eventually settled in the U.S., where they began carrying out many of their spying duties, the Star reports.

To the shock of their allegedly unknowing children, the couple was arrested by FBI agents on June 27, 2010, at their Cambridge, Mass., home as a part of a crackdown on Russian spies in the U.S. The family was eventually sent back to Russia in a spy swap agreement with the U.S.

“It is not fair to punish us for something we have nothing to do with. We have done nothing wrong,” Alexander told the Star. “Whether or not the government decides to reissue my citizenship, I will always be Canadian at heart.”

Source: The Sons of Russian Spies Want Their Canadian Citizenship Back | TIME