Citizenship

Canada has traditionally encouraged newcomers to become citizens, as a way to strengthen our society and promote the integration of newcomers. Now citizenship is increasingly being presented as an exclusive reward to be given only to those who best overcome the hurdles of integration and satisfy economic criteria.

Language requirements

Since 2012, applicants for citizenship must provide, at their own expense, proof of their knowledge of English or French. Previously, their language skills were tested as part of the citizenship application process.

Providing acceptable proof can be difficult:

• The government accepts only limited forms of proof. Many newcomers have to pay for a special test from authorized testing centres (costing about $200).
• Testing is not equally available throughout Canada. If you don’t live in a big city, you may have to travel to get to a testing site, at additional cost, or wait months for a test. In some regions, testing may be more expensive.
• Refugees and Family Class immigrants are more affected by the new rules, since economic immigrants have mostly had language assessed when they immigrated.
• Some newcomers take government-funded language training once in Canada and can use documentation from those courses as proof of languages. Others, such as refugees paying off transportation loans or refugee claimants, must work, and learn English or French on the job or in classes offered by community organizations. Their income may be very modest, but they will need to pay for a language test.

The new rules cause special problems for newcomers who have difficulties learning English or French:

• The level of language knowledge required is not supposed to have increased, but in practice it seems that it has.
• Learning a new language can be particularly hard for refugees who have survived torture or other severe trauma. Similarly, refugees who have spent decades in a refugee camp or without opportunities to go to school can have significant challenges. In theory they can apply for a humanitarian exemption, but it is now more difficult to have these factors considered.
• Isolated newcomers such as some women and elderly persons who are full-time caregivers often have limited access to language classes.
• The language tests favour people with higher levels of education. Previously, applicants could be tested through a conversation with the citizenship judge.

If Bill C-24 passes, more people will have to meet language requirements, both younger and older applicants than is currently the case.

Increase in fees

Citizenship fees were doubled as of February 2014 (from $200 to $400). This represents a lot of money for someone on a low income, such as a young student or a single-parent family.

Some people may not apply for lack of money.

Residence Questionnaire

Since May 2012, the government has asked many more applicants to fill in the very detailed Residence Questionnaire (RQ). Some applicants spend weeks tracking down the information requested, and then must wait months before institutions supply the documents. The time allowed to respond to the questionnaire is less than the time generally needed to gather all the documents. Some of the documents cost money to obtain.

Citizenship applicants have reported feeling discouraged when they are given the RQ – it can make them feel as though they are being regarded as suspicious or fraudulent, and sends an unwelcoming message.

Long delays

Due to backlogs, citizenship applicants currently face delays of 2-3 years while their applications are processed. The wait is even longer for those who must complete the Residence Questionnaire.

This means that newcomers can’t participate fully in Canadian society for years, even though they meet all the legal requirements for citizenship.

Administrative issues

Many applicants report frustration with the administrative process. A large proportion of applications are returned as incomplete, sometimes in error. It is difficult to communicate with officials about the progress of one’s application.

Cessation

Recent changes to the law mean that people in Canada who have refugee status can more easily lose their right to remain in Canada.

If a person who came as a refugee shows on their application for Canadian citizenship that they travelled to their home country, this information may be used to launch an application for cessation. The potential consequence is loss of permanent residence and deportation from Canada.

This means that applying for citizenship may be risky for refugees, thus deterring full integration into Canadian society.

“I worry that all these barriers to becoming a citizen will undo one of the things Canada has been good at: making newcomers feel welcome and encouraging them to be full members of Canadian society.” Loly Rico, CCR President

These obstacles in the path to citizenship are having a damaging effect on the integration of newcomers, who are denied the rights of full participation, notably the right to vote. For refugees, who have no other country, the effect is particularly severe.

 

 

 

 

Comments to the Standing Committee on Citizenship and Immigration on Bill C-18 (An Act respecting Canadian Citizenship) 21 November 2002

 

 

Introduction
The Canadian Council for Refugees is an umbrella organization committed to the protection of refugees in Canada and around the world and to the settlement in Canada of refugees and immigrants. About 180 organizations from across Canada are members of the CCR. We seek full respect for the human rights of newcomers and the successful integration of refugees and immigrants into Canadian society.

The Canadian Council for Refugees has been actively involved in discussions on earlier versions of this bill, introduced in the Thirty-Sixth Parliament (Bill C-63 in the First Session, and Bill C-16, in the Second Session). While the current bill incorporates some improvements over those earlier bills, there remain some provisions that raise serious concerns. Furthermore, some new provisions in Bill C-18 are worrying, notably the new powers permitting the revocation of citizenship based on secret information which must appear offensive to anyone who believes that Canadian citizens are entitled to fair process.

Equality of all citizens
The Canadian Council for Refugees welcomes the clearer articulation in Section 12 of the equal rights and obligations of all citizens, without regard to the manner in which they acquired citizenship. At a time when the discriminatory practices of the US immigration services have caused Canadian citizens to be treated differently based on their place of birth, it is particularly important for Canadians to emphasize our commitment to the equality of all citizens.

It is therefore of concern that the provisions of the bill do not seem to fully reflect the principle that all citizens are equal. Some of the proposed ways in which citizenship could be annulled or revoked do not respect the right to fair process, meaning that some citizens, but not others, face the prospect of being unjustly deprived of their citizenship.

There is also inequality in terms of the right to pass on citizenship to one’s children. Thus, a Canadian citizen who is second-generation born outside Canada must be careful not to give birth outside Canada herself, because her baby will not be a Canadian citizen (and might even be stateless). This applies even if she has lived in Canada all her life apart from the first few months. On the other hand, a citizen by birth in Canada or who came to Canada as an immigrant does not need to worry about, for example, taking a job in another country and having a baby there, since the baby will be a Canadian citizen.

Recommendation: Add a provision stating that a person is a Canadian citizen if born outside Canada to a person whose application to retain citizenship under Section 14 was accepted.

Statelessness
Canadians need to be concerned that the global problem of statelessness has, if anything, been increasing in recent years. Members of the Canadian Council for Refugees more and more report that there are people in Canada in a legal limbo, because they have no rights here, and as stateless people, they have nowhere else to go to. While the numbers of stateless people in Canada is probably relatively small, many people around the world find themselves in this situation.

We look to the Canadian government to play a leadership role in addressing the worldwide problem of statelessness. Unfortunately, although Canada is a signatory to the 1961 Convention on the Reduction of Statelessness, we have not signed the 1954 Convention relating to the Status of Stateless Persons. We have been urging the Government of Canada to review this gap and have Canada sign the 1954 Convention.

Recommendation: Take steps to have Canada sign the 1954 Convention on the Status of Stateless Persons.

In the meantime, it is important for the Committee to look carefully at the proposed Citizenship Act, with a view to making it conform with the objective of reducing statelessness. This is important not simply for those who are or will be directly affected by our legislation, but also so that the Canadian legislation can serve as a model internationally, as part of efforts to solve the problem of statelessness.

One simple but important provision that could usefully be added to the Act would be a clause stating that the Act is to be interpreted in a manner consistent with the principle of reducing statelessness. This would reflect our international obligations towards reducing statelessness.

Recommendation: Add a provision stating that the Act is to be interpreted in a manner consistent with the principle of reducing statelessness.

Section 14 (already part of the current Citizenship Act) provides for Canadian citizens born abroad to lose their citizenship at age 28, if their own parents were Canadian citizens born abroad. In this era of globalization, when so many Canadian citizens are working and studying outside Canada, we can expect this to apply to more and more Canadians.

Because it affects people born after 1977, the Section 14 provision will begin to have effect in 2005. It may lead to the creation of statelessness if a person does not meet the requirements for keeping citizenship, even though she might have led most of her life in Canada.

Suppose, for example, a Canadian woman (let us call her Anna) who was born abroad gives birth, also outside Canada, to a baby. Anna returns to Canada and brings up her daughter, Mariam, in Canada. At aged 22, Mariam, having lived all but the first months of her life in Canada, goes abroad to pursue advanced studies and returns to Canada at aged 26. When she turns 28 she will lose her Canadian citizenship and may become stateless, because she does not meet the three-year residency requirement in Section 14. Maybe she should have applied to retain her citizenship at aged 22. But who will explain this to her?

This problem could be addressed by adding an exception to the Section 14 rule to the effect that citizenship would not be lost if the person would be stateless.

Recommendation: Amend Section 14 to include an exception to the rule regarding loss of citizenship if the person would otherwise be stateless.

Section 11 of the bill attempts to address the problem of the creation of statelessness. It would not help Mariam’s situation because again it requires three years residence within the previous six years. But it might potentially help her child, should she have given birth while studying abroad. However this child born abroad and potentially stateless has a dilemma. He could become a Canadian citizen if he could live in Canada for three years. But if he is stateless, on what basis could he live in Canada? How could he even travel to Canada?

Both of the dilemmas presented above could be resolved simply by deleting subsection 11 (d) (ie. the requirement of three years’ residence in Canada).

We also draw attention to the fact that the age limit of under 28 appears arbitrary. Should we not be concerned about a stateless person who is already 28 or 29, given that this person is the child of a Canadian citizen?

Finally, on this point, we note that 11 (e), requiring that the applicant have always been stateless, will exclude some stateless people. In recent years, we have seen how political changes have turned people who used to have a citizenship into stateless people. This, for example, has been the experience with the break-up of the Soviet Union. A person who has a Canadian parent should not, we would argue, be allowed to remain stateless, simply because she once had a citizenship of which she has now been deprived. (If there are concerns about people making themselves eligible by renouncing their citizenship, this could be explicitly excluded).

Like the three years’ residence requirement and the age limit, this limit is drawn from the1961 Convention. However, the Convention only says that the Contracting State "may make the grant of its nationality" subject to these conditions: it does not in any way recommend that these conditions be imposed. We are by no means obliged to restrict ourselves in this way. These conditions constitute a floor, not a ceiling, and we believe Canada can afford to aim higher than the floor.

Recommendation: Delete 11(c) and (d) and amend (e) to read "is stateless and has not become stateless through the renunciation of a citizenship."

Revocation of citizenship through certificate process
Bill C-18 continues a new provision, modelled on a similar provision in the Immigration and Refugee Protection Act, that would allow a Federal Court judge to revoke a former immigrant’s citizenship without the citizen being permitted to see the evidence against him or her. A decision to revoke by the judge cannot be appealed or judicially reviewed.

The Canadian Council for Refugees considers this process fundamentally unjust within the immigration context. It is no more just within the citizenship process. It is furthermore contrary to the principle of the equality of citizens to have a process in which citizens who acquired their citizenship as a result of immigration to Canada can lose their citizenship without the right to hear the evidence against them and without right of appeal, a process which persons born in Canada are not subject to.

Recommendation: Delete Section 17.

Annulment of citizenship
Bill C-18 gives the Minister of Citizenship and Immigration new powers to annul citizenship. This means that Canadian citizens who have been granted citizenship after immigrating to Canada may lose their citizenship without due process and without even the right to a hearing.

The completely new powers to annul citizenship are contained in Section 18. This section would allow the Minister to annul a person’s citizenship, within 5 years of the person becoming a citizen, if the Minister is satisfied that the person was ineligible or obtained citizenship by using a false identity.

Insofar as this provision allows the annulment of a grant of citizenship that should never have taken place, it may seem reasonable and attractive. However, it is not always a simple and straightforward matter to determine whether citizenship was illegitimately acquired. For example, a citizen might be falsely accused of false identity by someone with a personal grudge or by foreign government authorities with an agenda of persecution. The bill itself foresees that the person concerned might have something to say in his or her defence, providing for the giving of notice and an opportunity for the person to make written representations. But who decides between the arguments of the Minister, who believes citizenship was illegitimately acquired, and the citizen, who disagrees? The Minister. A system in which the accuser is also the judge clearly does not protect the interests of justice.

The citizen whose citizenship may be annulled is not even entitled to know in full the evidence that the Minister is relying on to annul the citizenship. The bill only says that the citizen should receive "a summary of the grounds for the proposed order."

Furthermore, the bill does not say that the Minister must be convinced beyond a reasonable doubt that citizenship was illegitimately obtained. The Minister need only be "satisfied". This sets a low standard which permits the annulment of citizenship even in cases where there might be legitimate differences of opinion. It undermines the possibility of effective recourse in the courts, since the courts will generally be forced to defer to the Minister’s decision about whether he is "satisfied".

The process outlined in the current bill for stripping citizenship fails to meet international standards with regard to adequate remedy. There are serious issues at stake and the consequences of the decision will have a profound impact on the life of the person concerned. This needs to be reflected in the standards of procedural justice offered.

Recommendation: Amend the bill to provide for decisions on annulment to be made by an independent decision maker, with a right to a hearing with full due process rights, including the right to notice, to disclosure and to counsel.

Cabinet powers to refuse citizenship are too broad
Bill C-18 (Sections 21 and 22) gives Cabinet the power to refuse citizenship on the basis that a person has "demonstrated a flagrant and serious disregard for the principles and values underlying a free and democratic society." The government background material cites hate-mongers or human rights violators as examples of persons against whom the provision might be used. The Canadian Council for Refugees is deeply committed to the struggle against hatred and human rights abuses. Nevertheless, the provision is worrying. Because there is no definition of the principles and values, Cabinet could interpret it in many ways. Future governments might have very different ideas of who should be denied citizenship.

Furthermore, the lack of due process must in itself be a concern, since it is also a principle and value of a free and democratic society that individuals be entitled to fair treatment under the law, as measured against clear standards. A closed door discussion in Cabinet, without any access to process and with no clear definition of what conduct is unacceptable does not meet the test of fair treatment.

Section 28 includes a long list of prohibitions, which include prohibitions against people who have committed crimes or who are inadmissible under the Immigration and Refugee Protection Act (for example, for human rights violations). If there remain some categories of person which the government would like to exclude from citizenship, they should be added to Section 28, not dealt with under special Cabinet powers.

Recommendation: Delete Sections 21 and 22.

Prohibitions
Section 28 includes a significantly expanded list of prohibitions against grant of citizenship. Of particular concern for refugees are paragraphs 28(c) and (d) which deal with charges and convictions outside Canada. It is part of the tactics of persecution in some parts of the world for states to falsely accuse their opponents of serious crimes. Refugees may be granted protection in Canada precisely because they are fleeing trumped up charges or an unfair conviction in their home countries. It would be perverse in the extreme to grant a person protection because of trumped up charges and then deny citizenship based on those same trumped up charges. Persons who did not come to Canada as refugees may also face unfair charges or be wrongly convicted in another country, sometimes because they have made enemies by speaking out against injustice.

Recommendation: Amend 28(c) and (d) to include an exception where the charges are abusive or the conviction reached in an unfair process.
 
 

RECOMMENDATIONS

1.    Add a provision stating that a person is a Canadian citizen if born outside Canada to a person whose application to retain citizenship under Section 14 was accepted.

2.    Take steps to have Canada sign the 1954 Convention on the Status of Stateless Persons.

3.    Add a provision stating that the Act is to be interpreted in a manner consistent with the principle of reducing statelessness.

4.    Amend Section 14 to include an exception to the rule regarding loss of citizenship if the person would otherwise be stateless.

5.    Delete 11(c) ("less than 28 years of age") and (d) (residence in Canada) and amend (e) to read "is stateless and has not become stateless through the renunciation of a citizenship."

6.    Delete Section 17 (revocation of citizenship through certificate process).

7.    Amend the bill to provide for decisions on annulment to be made by an independent decision maker, with a right to a hearing with full due process rights, including the right to notice, to disclosure and to counsel.

8.    Delete Sections 21 and 22 (denial of citizenship on the basis of "a flagrant and serious disregard for the principles and values underlying a free and democratic society.").

9.    Amend 28(c) (criminal charges outside Canada) and 28 (d) (conviction outside Canada) to include an exception where the charges are abusive or the conviction reached in an unfair process.

 

1. All human beings have fundamental rights, as recognized in international human rights instruments to which Canada is party and as recognized in the Canadian Charter of Rights and Freedoms.  The 1985 Singh decision of the Supreme Court of Canada confirmed that basic charter rights apply to non-citizens in Canada.  Canada’s obligations towards non-citizens include the duty to respect their economic, social, cultural, civil and political rights.
2. People living without status in Canada are denied many of their basic rights, notably in access to health, education and full employment opportunities and in protection from discrimination.  They are vulnerable to many forms of abuse, because the law often does not protect them, in principle and/or in practice.
3. The existence of non-status immigrants is a result of the unfairness, inequities and restrictiveness which are found within our refugee and immigration system. Any regularization plan should also address some of these systemic problems.
4. People find themselves without status in Canada for a variety of reasons, but most relate to their status as oppressed people on the basis of their race, gender, social status, economic status, age, and/or variation from gender or sexual norms.
5. Among the circumstances which in particular deserve highlighting are the following:
   1. Refugees who should have been granted protection but who have been refused status due to flaws in the determination system.
   2. Survivors of trafficking
   3. Persons with family with refugee or permanent status in Canada. Canada should comply fully with its obligations under the Convention on the Rights of the Child by giving primary consideration to the best interests of the child and ensuring that families are not separated. Furthermore, recognition should be given to what in Canada is called “extended family”, which in many communities reflects strong and positive ties with family members such as brothers, sisters, aunts, uncles, cousins, grandparents and grandchildren.[1]
   4. Stateless persons.
   5. Persons (often women) who were under a family sponsorship but who have left their spouse due to domestic violence.
   6. Survivors of rape or torture who are at risk of being sent back to the country in which they suffered rape or torture.
   7. Persons whose removal from Canada would involve a serious rights violation (e.g. persons with a serious medical condition for which treatment is available in Canada but not in the country to which they would be removed).
   8. Persons from countries to which Canada generally does not deport because of a situation of generalized risk (moratorium countries)
   9. Persons who have been continuously in Canada for several years
   10. Persons who have integrated in Canada, where integration is viewed not from a narrow economic perspective but taking into consideration social, cultural and familial integration.
   11. Persons who have worked for some time on temporary worker programs, notably as seasonal agricultural workers.
6. Regularization mechanisms will necessarily include the security screening required for permanent resident applicants, consistent with the Immigration and Refugee Protection Act. Processing of applications should be applied consistent with existing regulations for other applications, and should be completed in a timely manner.

1. Refugee Protection
   Immediately implement the Refugee Appeals Division (RAD), which is specifically provided for in the Immigration and Refugee Protection Act (IRPA). All refused refugee cases should be reviewed by the RAD, and that there should be a temporary suspension of removals while this review is in process.
2. Nationals of moratorium countries
   Create a regulatory class permitting nationals of countries to which there is a moratorium on removals and who have been in Canada for three years to apply for permanent residence.
3. Survivors of trafficking
   Create a regulatory class permitting survivors of trafficking to apply for permanent residence.
4. Seasonal agricultural workers
   Provide an opportunity for seasonal agricultural workers to apply for permanent residence, similar to the opportunity provided under the Live-In Caregiver Program.
5. Relaxed Humanitarian and Compassionate Application Process
   1. Timely processing: Process all applications on Humanitarian and Compassionate grounds in a timely manner.
   2. Excessive hardship: Remove the criterion of “excessive hardship”. At present, applicants have to show that they would suffer excessive hardship if they had to return to their home country. Excessive hardship is usually interpreted to mean that they would face risk to their life or security.
   3. Successful integration: Remove criterion a linked strictly to economic criteria. Instead, integration should be reviewed taking into consideration not only economic integration, but also consider factors such as social, cultural and familial integration (i.e. links with the communities in which people without status live, learn, work and worship).
   4. Rights of the individual: Review all applications against the background of Canada’s international instrument and charter obligations in order to protect the economic, social, cultural, civil and political rights of the individual.
   5. Statelessness: The fact that a person is de jure or de facto stateless should in itself be a deciding factor in favour of H&C. 
   6. Sponsorship: Recognize the value of a sponsor that could include an employer, a labour union, faith group, community or non-governmental organization that would be able to both vouch for the applicant as well as support their continued integration in Canada. Immediate and extended family members could be potential sponsors.
   7. Victims of domestic violence: Persons who have left a relationship with a sponsor be because of domestic violence should normally be granted H&C.
   8. Survivors of rape and torture: Persons who have survived rape or torture should normally be granted H&C to avoid return to the country where they were raped or tortured.
   9. Length of time in Canada: Length of time in Canada is a factor in favour of granting H&C. Those who have been continuously in Canada for three years should normally be landed. However, the fact that a person has not been long in Canada should not be an argument against landing when there are any other H&C factors.
6. Inland family sponsorship
   The Minister of Citizenship and Immigration introduced in February 2005 changes to allow the inland sponsorship of a non-status spouse. While this is a welcome and positive change, we believe that the decision excludes others who should have the opportunity to qualify for a similar process.
   
   This decision does not allow the inland sponsorship of a non-status spouse who is currently under a removal order. We suggest that there should be a review of such cases so that non-status spouses under a removal order that is unrelated to security concerns should be allowed to pursue the sponsorship option.
   
   We also suggest that the family sponsorship program should be expanded to recognize inland sponsorship of other immediate (notably children) or extended family members who are already living and working here without status. Family members such as brothers and sisters, uncles and aunts should be recognized as legitimate sponsors of their family members and that they be permitted to sponsor immediate and extended family members who are living in Canada without status.
7. Adjustment of Status Program
   For those whose situations may not fit into any of the above categories, we suggest that the Government bring in an adjustment of status program similarly to that introduced in 1972, whereby anyone who was already in Canada by a date (e.g. two years prior) may apply for status.

1. No deadlines
   We believe that imposing a deadline on any regularization program will create unnecessary additional stress and pressure on people without status who would be scrambling to apply before such a target date; will burden non-governmental organizations which will be swamped with requests for assistance to put an application together in time to meet the deadline; and place a terrific additional load on Citizenship and Immigration Canada who will face the nightmare of having to process hundreds or thousands of cases within their existing limited resource capacities. We suggest that a process for regularization should be offered with the understanding that it is a temporary measure, but without deadlines to avoid the problems described above. We suggest that the government may set a timeframe for the purpose of reviewing the effectiveness of or the need for such a program. We believe that this criterion is important in order to give such a process the fair chance that it deserves. Such a provision will avoid the necessity of having to end the process after only a brief period because it was not possible to deliver on the intended or expected outcomes.
2. DNA Testing
   There should be no requirement of DNA test in order to establish biological family ties. New immigrants to Canada, and indeed many communities that have a longer presence in this country have long-traditions adopting and caring for the children of their extended family members and others. They should be allowed to sponsor such children, especially in the case of families and children without status, without having to provide DNA evidence to establish a biological relationship. Finally, the cost of a DNA test is well beyond the means of many families and would constitute unnecessary and undue hardship, if not an insurmountable barrier.
3. Identity documents
   Persons who are refugees or have fled refugee-like circumstances, as well as stateless persons, face serious or insuperable challenges in providing identity documents required in non-refugee categories. Officials should be directed to accept satisfactory alternatives as is done for protected persons.
4. Processing fees
   Processing fees represent a barrier for some applicants, especially in the case of a family with several children. The requirement should be reviewed, with discretion given to the immigration officer to take appropriate steps to prevent the fee from becoming a barrier. Processing fees should be eliminated for humanitarian cases.
5. Right of Permanent Residence Fee (formerly Right of Landing Fee)
   The Canadian Council for Refugees has consistently opposed the application of the Right of Permanent Residence Fee. This fee, which is already waived for refugees, should be eliminated completely for all immigrants.
6. Moratorium on Removals
   In all cases, we propose that as a general principle, there should be a suspension of removals where an applicant has come forward to have her or his status regularized, at least until the case has been reviewed. In order to ensure the success of any program, it would be important to assure the applicant that the simple act of coming forward and applying for consideration for regularization should not result in targeting for removal proceedings.
7. Third Party Application
   The 1983-1985 administrative review program gave applicants the opportunity to anonymously submit their applications through a representative for initial assessment. A similar process would encourage applicants to come forward without fear of repercussions. Involving non-governmental organizations (NGOs) to assist in reviewing such applications would assist to relieve the potential burden on the Department of Citizenship and Immigration Canada, and ensure that the process is manageable. As members of the CCR, we would like to offer support for such a process, with the understanding that NGOs would take responsibility to review applications to ensure that they are complete. This would be done with the intention of facilitating the process and to not exclude applicants.