CARL Backgrounder on the New Citizenship Act (formerly Bill C-24) INTRODUCTION

Transcription

1 Primary Authr: Aris Daghighian CARL Backgrunder n the New Citizenship Act (frmerly Bill C-24) INTRODUCTION The Stephen Harper Cnservative gvernment s Bill C-24 amending the Citizenship Act is nw law, having garnered ryal assent n June 19, The last f the prvisins fficially came int effect n June 11, The purpse f this memrandum is t highlight the main changes, issues f nte, and ptential cncerns. Ultimately, the verall thrust f the new laws make citizenship harder t btain and easier t lse. 1. Lnger Residency Perid Previus Law: Residence fr 3 ut f 4 years (1,095 days). N requirement that the resident be physically present in Canada fr any number f days per year. New Law: Physical presence fr 4 ut f 6 years (1,460 days). Als requires a minimum f 183 days f physical presence in each calendar year. Opinin: Making peple wait lnger undermines Canada s stated cmmitment t integrate newcmers. Immigrants will have t wait lnger befre being able t participate fully in Canadian sciety and enjy all the appurtenant rights. The required perid f residence has been 3 years fr ver 30 years; there was n cmpelling reasn t change it nw. Remves a citizenship judge s flexibility t apply humanitarian cnsideratins when, fr cmpelling reasns, an applicant des nt meet the required days f physical presence (smetimes nly a minr shrtfall), but in all ther respects maintained their primary hme r mde f existence in Canada. The Act will cntinue t allw fr a waiver frm the physical requirement n cmpassinate grunds fr minrs (at s. 5(3)(b)(ii)). There is n reasn this exceptin shuld nt be extended t adults as well. b. Remval f credit fr time spent in Canada prir t Permanent Residency Previus Law: Time spent lawfully in Canada befre becming a permanent resident, e.g. as a student, live-in caregiver, refugee claimant, culd be credited tward residency requirements at a calculatin f 0.5 days credit fr every 1 day f presence up t a maximum f 1 year. 1

2 New Law: Remves this credit entirely. Opinin: Eliminating any cnsideratin r credit fr time spent in Canada befre becming a permanent resident cntradicts the stated gal f ensuring applicants spend enugh time in Canada t knw the cuntry. In the wrds f the Federal Curt, residency requirements are meant t ensure sufficient rubbing f elbws with Canadians befre citizenship. It will specifically and disprprtinately affect: students, temprary wrkers, refugees, and live-in caregivers. These grups spend years in Canada, wrking hard, gaining a Canadian educatin, living with Canadian families, lking after ur children and elders, befre they becme permanent residents. This is valuable time which shuld be cmmended and credited. 2. Increased Barriers f Csts and Language Requirements The applicatin fees fr citizenship have increased t $630 fr adults and anther $100 per minr child. This is mre than triple the amunt it was just a cuple years ag. In additin, language and knwledge test requirements are extended t thse aged years, instead f previusly thse aged years. The cst f the required language test is an additinal $200 per persn. Thus, fr example, a family f 5 with 3 teenage children in high schl will nw have t shulder a ttal f $2560 just t be able t exercise their right t citizenship. This is a significant burden fr thse newcmers wh already struggle t prvide necessities fr their families. Opinin: The elderly are amng the mst vulnerable members f ur sciety, and may lack frmal educatin especially when cming frm abrad; we shuld therefre be facilitating nt hindering their access t citizenship. The ratinale f extending the test requirements t applicants aged is nt clear. Yuth at this age will be in high schl and must have been in Canadian schls fr the past several years. This simply creates extra hurdles and csts fr new immigrant families (again, the test cst is apprximately $200 each). Imprtantly, this ptentially disadvantages children with learning impediments; creating a categry f yuth wh have spent their frmative years in Canada but are nt allwed t acquire citizenship alngside the rest f their family. 2

3 3. Intentin t Reside Prvisin Previus Law: There was n intent t reside prvisin. New Law: Intrduces a requirement that a persn applying fr citizenship sign a statement f their intentin t cntinue t reside in Canada if granted citizenship. There is n timeframe r further detail prvided. There is unreslved cnfusin abut the applicability f this prvisin. There are tw pssibilities: 1. That it applies t an indefinite and perpetual cntinuing intentin t reside nce they becme citizens. This interpretatin fllws mst clearly frm the plain language f the declaratin applicants are asked t sign and als the wrding f CIC s June 11 th, 2015 annuncement: OR 2. That it applies nly t the perid after applicatin and befre the ath is taken. This is supprted by s. 5(1.1), which prvides: the persn s intentin must be cntinuus frm the date f his r her applicatin until they have taken the ath f citizenship. Opinin: This prvisin raises a number f cncerns. First, it grants brad discretin t a citizenship fficer t speculate n the future intentins f a citizenship applicant and deny citizenship based n an alleged lack f intentin t reside in Canada. Secnd, since misrepresentatin r fraud in relatin t any cnditin f citizenship is grunds fr revcatin, a naturalized citizen is vulnerable t revcatin f her citizenship if she leaves Canada and takes up residence elsewhere fr whatever reasn including a new career pprtunity, helping an NGO, studying abrad, marrying a freigner etc. Even if this pwer is exercised infrequently, its existence creates uncertainty and insecurity fr citizens. They will live with the fear that leaving Canada might expse them t the accusatin f fraud n the grunds that they did nt intend t reside in Canada permanently when they btained citizenship. Therefre a naturalized citizen may be justifiably afraid t accept an ffer f emplyment abrad r t study abrad at the risk f lsing their Canadian citizenship. Third, the prvisin des nt apply t citizens wh are brn here. This creates a separatin between naturalized citizens and birth citizens, and the bligatins that apply t each. While birth citizens are still free t travel and live where they wish 3

4 withut cncern, naturalized citizens cannt. This separatin between tw classes f citizenship is a prevalent and cncerning theme thrughut the legislatin. These issues trigger cncerns under the Charter f Rights and Freedms. Specifically, sectin 6 f the Charter guarantees t all citizens the right t leave, enter and remain in Canada. Sectin 15 f the Charter guarantees equality befre and under the law, and equal benefit f the law. 4. Revcatin f Citizenship Changes t Prcedure Previus Law: Revcatin f an individual s citizenship was subject t multiple checks and balances. The three step prcedure invlved ntice frm the Minister f his intent t revke, at which pint the persn had a right t seek a hearing in the Federal Curt. If the Curt decided against the individual, the matter was referred t the Gvernr in Cuncil t make a final determinatin. New Law: Mst revcatin prceedings will nt be subject t a judicial r even quasi-judicial prcess but will rather be a discretinary decisin made slely by the Minister r a Minister s Delegate. Opinin: The new law severely restricts due prcess and prcedural safeguards fr a matter as imprtant as citizenship revcatin. It eliminates any type f hearing in mst cases, prviding citizens even less prtectin than permanent residents facing inadmissibility prceedings. New Grunds f Revcatin fr Dual-Natinals Previus Law: Citizenship culd nly be revked if there was fraud in btaining citizenship t begin with. New Law: Allws fr revcatin f citizenship based n cnvictins inside and utside f Canada fr treasn, spying r terrrism ffences. It will apply t Canadians regardless f hw they btained their citizenship (i.e. even if it was by birth). Hwever, it will nly apply t thse wh are dual-natinals r wh may btain anther citizenship. Opinin: Citizenship revcatin fr fraud r misrepresentatin targets cnduct that ccurred prir t btaining citizenship, and is justified n the basis that it crrects an errneus grant f citizenship. The ratinale fr citizenship revcatin fr criminal ffences is qualitatively different. It revkes citizenship as punishment r penalty fr miscnduct as a citizen. It is in effect a frm f medieval banishment r exile. Ntably, the Supreme Curt lng ag held: the central thrust f s. 6(1) [f the Charter] is against exile and banishment, the purpse f which is the exclusin f membership in the natinal 4

5 cmmunity. United states f america v. Ctrni; united states f america v. el zein, [1989] 1 SCR These prvisins create tw tiers f citizenship. A lwer tier fr dual-natinals whse citizenship is mre precarius, and anther fr Canadian-nly citizens wh wuld nt have their citizenship revked fr cmmitting the same acts f terrrism r espinage. The argument has been made it is nt the actins themselves which are being penalized but rather being a dual-citizen wh cmmits thse actins. Mrever, the scpe f the law is extremely brad. While these measures are ften cuched as applied t dual-citizens, the Act is framed in terms f statelessness. The measures are nly inapplicable if an individual wuld be rendered stateless (s. 10.4). Recently, the Federal Curt f Appeal ruled that an individual is nt truly stateless if they have the pssibility t btain citizenship r natinal status elsewhere. Budlakti v. Canada (Citizenship and Immigratin), 2015 FCA 139 at para. 23. Therefre, even an individual brn in Canada, wh has never held the citizenship f anther cuntry, may be subject t revcatin simply by virtue f the fact he may be entitled t anther citizenship thrugh parental lineage r therwise. Only the purest f Canadians are sparred. 1 See als Sriskandarajah v. United States f America, 2012 SCC 70 at para. 20 [ The cmmn theme is that extraditin, unlike exile and banishment, des nt lie at the cre f the right t remain in Canada under s. 6(1) f the Charter. A Canadian citizen wh is extradited t stand trial in a freign state des nt necessarily becme persna nn grata: the accused may return t Canada if he is acquitted r, if he is cnvicted, at the end f his sentence. ] 5