Tougher citizenship laws miss mark on expatriate issues

Fifty years ago commercial jet transportation revolutionized the movement of people around the world. Increased passenger numbers pushed manufacturers to build larger jets, resulting in the Boeing 747 in 1970. The first purchaser of that jet predicted it would be a great weapon for peace. He probably did not envision how the global accessibility created by jumbo jets would lead to changes to immigration and citizenship laws, such as changes to the Citizenship Act announced Thursday by the government.

In the near 150 years of is existence Canada has had four acts governing naturalization and citizenship. The current Citizenship Act came into effect in 1977, just as the effects of increased global travel were starting to be felt. Since then immigration levels to Canada have increased, to a yearly average of about 235,000 for the past 20 years. The pattern of immigration has changed, from a Eurocentric majority to an Asiacentric majority. As more immigrants have come to Canada, more people have applied for citizenship.

Several million Canadians now live abroad, many newly naturalized citizens, raising questions about entitlement to citizenship and the obligations citizens owe to the country. Critics complain about “anchor babies” and “citizenship of convenience,” referring to migrants who stay in Canada only long enough to obtain citizenship and then live abroad, returning only when in danger or to take advantage of health care and other social benefits.

The government’s response is Bill C-24. The Bill makes dozens of substantive changes to the law, relating to who may claim to be Canadian, how to qualify for citizenship and how citizenship may be revoked.

Proposed changes will recognize certain persons, recently referred to as “Lost Canadians,” born before 1947 (or before April 1, 1949, in cases involving Newfoundland and Labrador), as citizens.

For immigrants seeking citizenship, residency requirements will be increased so an applicant must be physically present in Canada for four years in a six-year period and applicants must be in Canada for at least 183 days per year in four of the six years. It still falls short of the five-year requirement that was in effect before 1977.

As well, applicants must have filed income tax returns during four of the years. Time spent in Canada as a non-permanent resident during the qualifying period will no longer count. Finally, applicants must show at the time of application and up to the time they take the oath of citizenship, an intention to continue to reside in Canada.

The ages required for applicants required to show language proficiency in English and French, and pass a knowledge test, is changed from 18 to 54, to 14 to 64. The government announced it will increase the fees for citizenship applications from $100 to $300, with an additional $100 right-of-citizenship fee for successful adult applicants.

Failed applicants will no longer have a right of appeal to Federal Court. They will have a right to apply for judicial review, with leave of the Federal Court. These changes will decrease accessibility for many applicants who cannot afford help to navigate the court rules for judicial review.

Under the proposed law the citizenship minister will have the power to revoke citizenship, without an oral hearing, based on  grounds of the person obtaining their citizenship or permanent residence on grounds of fraud or misrepresentation. Cases involving security, human or international rights violations, or organized criminality will involve a Federal Court hearing. The Minister will also have the power to revoke citizenship of any dual citizen convicted of terrorism, high treason, treason, or spying offences, depending on the sentence received. Similar grounds will prohibit applicants from receiving citizenship. The changes to ministerial power will likely be subject to  Charter challenges.

Persons who represent or advise on a citizenship application or hearing for a fee will have to be a lawyer or a member of a designated regulatory body. This mirrors changes to the immigration law in 2002 that resulted in the creation of an immigration consultants regulatory body.

In a news release concerning the Bill, Citizenship and Immigration Minister, Chris Alexander, said the government is strengthening the value of Canadian citizenship, which is a pledge of mutual responsibility and a shared commitment to historical values. The government expects new processing procedures will eliminate the backlog of outstanding applications within a few years, so applicants will not have to wait the several years it now takes for applications to be completed.

As long as Canada offers health care and other social benefits, there is a legitimate political question about the tax contribution of the several million Canadians living abroad to pay for those services should they return. The government may say the proposed changes help address the problem, but the changes are window dressing. The real change would come with amendments to tax laws, which would be much harder to sell politically. 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Passport misuse can lead to travel restrictions

Immigration law is one aspect of the international movement of people. Each country has its own rules to decide who it will allow in to live permanently, visit, work or study. One other aspect of immigration law which does not get talked about much is the use of passports. Passports are the fundamental document which an international traveller needs to be able to move between countries. While Canadian citizens have a constitutional right under the Charter of Rights and Freedoms to enter, remain in and leave Canada, there is no absolute right to possess a passport to facilitate the right to leave and enter Canada. Jose Dias recently learned that after attempting to assist his foreign wife to come to Canada in late 2010.

Passports are government-issued documents that certify the identity and nationality of its holder. They have existed in one form or another for more than two thousand years. The first true passport is said to have originated in England during the reign of Henry V in the early 1400s. While passports were issued in various forms since then, it was not until after World War I that countries agreed to guidelines for the standard booklet form of passport that continues to exist. More formal rules for a standardized passport started in 1980, through the International Civil Aviation Organization which governs international air travel.

Each country has its own rules for issuing passports. In Canada, that rule is the Canadian Passport Order. The current Order was passed in 1981 and has been amended several times since then. The Order is a unique law. It is passed solely by authority of legal powers still remaining with the Queen, known as the royal prerogative, that are exercised by the federal cabinet. There is no Parliamentary statute governing the issuance and use of passports.

The number of people travelling between countries has increased dramatically in the past four decades through more accessible air travel. Consequently, there has been an increased use of fraudulent and altered travel documents and misuse of legimate travel documents. Countries have become more vigilent in preventing the misuse of passports, especially since the events of 2001 and the threat of international terrorism.

Passport officials began taking action against Canadian citizens in the 1990s, whose legitimate passports wound up being used by other persons attempting to enter Canada or other countries. Under the Canadian Passport Order, a passport may be refused for a number of reasons, including if an applicant is charged with an indictable offence or is charged with offences outside Canada that would be an indictable offence in Canada. Passports will not be issued to persons subject to imprisonment in Canada or who are forbidden by court orders to leave Canada.

Existing passports may be revoked for similar reasons. As well, passports may be revoked if the person  uses the passport to assist in committing an indictable offence in Canada or any offence in a foreign country or state that would constitute an indictable offence if committed in Canada, or permits another person to use the passport. The decision to refuse or revoke a passport also includes the power to impose a period of refusal of passport services.

Jose Dias had his Canadian passport revoked after travelling with his Brazilian wife to St. Maarten, where she attempted to board a plane to Canada. His wife had obtained a New Zealand passport, based on a claim to New Zealand citizenship through a grandmother. She was using a New Zealand passport when attempting to come to Canada. She was refused boarding when it was decided that the New Zealand passport was counterfeit. Mr. Dias subsequently came to Canada. After an investigation, in June, 2012, Passport Canada revoked his passport and barred Mr. Dias from obtaining a new passport for five years, except to travel on urgent, compelling and compassionate grounds.

Fortunately for Mr. Dias, he challenged the decision. Earlier this month the Federal Court overturned the decision. It found the decision wrong as the passport director failed to specify what law Mr. Dias purportedly committed in assisting his wife to obtain a New Zealand passport. Other persons have not been so fortunate. In several cases passport holders have claimed to have lost their passport while abroad. While they received an emergency passport to return to Canada, someone else subsequently used their original passport to arrive in Canada. The passports were revoked when evidence was obtained that the Canadian allowed their passport to be misused.

Along with increased enforcement against misrepresentation in immigration cases, the current government has empowered Passport Canada to investigate misuse of passports. The consequences to someone misusing their passsport can be difficult, affecting the ability to conduct business or visit family and friends abroad.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Parliament and Federal Court fiddle while conflicting residence tests burn

Lawyers have known for years the unfairness of the three disparate tests applied by citizenship judges in deciding whether an applicant meets the residency test for citizenship under section 5 of the Citizenship Act. The inequity of the situation was recently highlighted in a decision handed down by Chief Justice Crampton of the Federal Court. In Huang v Minister of Citizenship and Immigration, 2013 FC 576, the Chief Justice said, “This case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country.” His remarks are slightly more temperate than the comments of Justice Muldoon, who, as early as January, 1998, in Re Ten, 1998 CanLII 7296 (FC), said the situation created “a scandalous uncertitude in the law.” The irony of Justice Muldoon’s comment is that he helped create the incertitude in the law.

The scandalous situation involves the interpretation of “residence” in paragraph 5(1)(c) of the Citizenship Act. That provision requires that a citizenship applicant have three years of residence in Canada within the four years before applying. The term is not defined in the law, so it was left to Federal Court judges, on appeals from citizenship judges, to determine what the word meant. In 1978, in Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, then Chief Justice Thurlow decided residence meant where an applicant had centralized his mode of living. In 1992, Justice Reed decided in Re Koo, [1993] 1 FC 286, that residence was where an applicant regularly, normally or customarily lived. Finally, in 1993 in Re Pourghasemi (1993) 62 F.T.R. 122, Justice Muldoon, certain his interpretation was correct and the others were, as he later described,  “ignoring the law,” decided residence meant physical presence. Comity, or unity of judgement in the Federal Court on the issue, has since yet to be found.

From that point onward citizenship judges have had three different standards to choose from. As new judges are appointed, they fall into one school of interpretation or another and any applicant with less than three years physical residence is left with the randomness of which judge they appear in front of. Relief through Federal Court was uncertain, depending on which school of thought the judge hearing an appeal sat in.

Normally an appeal court could sort out conflicting decisions. However, the Federal Court has the last word on the matter as the Citizenship Act expressly prevents an appeal from that court. So long as judges of the Federal Court hold conflicting opinions on the issue, applicants before a citizenship judge face unequal treatment under the law, depending on which judge decides their fate. Hence Chief Justice Crampton’s plea that Parliament should amend the Citizenship Act to expressly define residence. However, the government has attempted twice to change the law, in 1998 and 2010, without success.

Beside an amendment by Parliament, Chief Justice Crampton suggested that a citizenship judge bring a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act. That could be appealed to the Federal Court of Appeal, which could finally settle the different interpretations in the Federal Court that have lasted for the past 20 years. I would be surprised if a citizenship judge took the initiative to start such a reference.

I suggest it may be possible for an applicant to seek a remedy by means of judicial review through a provincial superior court or possibly the Federal Court, following the Supreme Court of Canada decision in Kourtessis v. MNR, [1993] 2 SCR 53. The court upheld a judicial review of a search warrant, from which the Criminal Code allowed no appeal, where a Charter right is at stake and no other effective remedy is available for vindicating it. Citizenship applicants are denied due process under section 7 of the Charter of Rights and Freedoms  by the unequal treatment of law due to conflicting decisions. An appeal to Federal Court under the Citizenship Act does not provide an adequate remedy. If the review court accepts jurisdiction, an appeal could lie to a higher court that would settle the issue once and for all. Of course, all of this depends on finding an applicant willing and able to take their case through the courts. It is an point worth giving further consideration.

Foreign miners hiring approval upheld by Federal Court

On Tuesday the Federal Court upheld a decision by a Human Resources and Skills Development Canada (HRSDC) officer to approve ten labour market opinions (LMOs) allowing HD Mining International Ltd. to hire 201 Chinese miners to extract a bulk coal sample at its Murray River Project near Tumbler Ridge, B.C.

Mr. Justice Zinn’s decision is the first case to examine the government’s Temporary Foreign Worker Program (TFWP) and the power to issue LMOs under section 203 of the Immigration and Refugee Protection Regulations. The April, 2012, decision by Officer MacLean was challenged by two unions, the Construction and Specialized Workers’ Union and the International Union of Operating Engineers, acting in the public interest.

With few exceptions, a foreign worker must obtain a permit to work in Canada. In most cases, in deciding to issue a work permit an immigration officer must determine, on the basis of an opinion provided by HRSDC, whether the employment of the foreign worker is likely to have a neutral or positive effect on the labour market in Canada. The opinion, known as the LMO, is based upon six factors set out in Regulation 203(3). They include whether the employment of the foreign national will likely result in direct job creation or job retention for citizens or permanent residents, in the creation or transfer of skills and knowledge for the benefit of citizens or residents, or fill a labour shortage; and whether the wages offered are consistent with prevailing wages and the working conditions meet generally accepted standards, whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents, and whether it would affect any labour disputes.

Justice Zinn found the officer did not fetter his discretion when assessing the LMO application, or make any unreasonable assessment when considering the factors set out in Regulation 203(3). He determined that it is not necessary for an applicant to satisfy all of the six factors. The HRSDC officer has to examine each factor and can assess what weight is given to each factor. In HD Mining’s case, the officer found that while the company did not show positive job creation or skill transfers factors, all of the other factors were positive so the LMO would be issued.

The unions challenged the efforts of the company in hiring Canadian workers, pointing out that very few Canadian applicants were interviewed for positions. The court found no error by the company in fulfilling advertising requirements set out by HRSDC. Furthermore, it found that the small number of Canadian interviewees did not give rise to any concern that recruitment efforts were not genuine. The officer had not sought to review any resumes submitted by any applicants. Justice Zinn stated that the HRSDC officer “is not a human resources specialist or a recruitment officer” and he “would be very surprised if a review of the resumes would have been any more meaningful to the officer than to the Court.”  He added, “an employer must be given some latitude in its hiring even within the TFWP.”

The case provides guidance for employers in recruiting temporary foreign workers. HRSDC will establish advertising requirements after its assessment of the labour market situation for the specified occupation. The employer will have to keep detailed records of its advertising and recruiting efforts, but will be given latitude in its hiring decisions. An employer may have to produce such records. The decision does not address what factors are relevant in rejecting potential Canadian applicants, as it was not necessary in this case. Finally, an LMO application has to address all the factors set out in Regulation 203(3), but does not have to positively satisfy all the factors.

The government is continuing to review the TFWP to ensure it is working in the best interests of Canadian workers and businesses. Since this case upholds the current process, I do not expect any major changes to the procedure.