Revocation and Statelessness after Budlakoti

Some of the more controversial sections of Bill C-24, The Strengthening Canadian Citizenship Act (“Bill C-24”), are its revocation provisions.

Bill C-24 will create a new s. 10(2) of the Citizenship Act which will state that:

Revocation by Minister — convictions relating to national security

(2) The Minister may revoke a person’s citizenship if the person, before or after the coming into force of this subsection and while the person was a citizen,(a) was convicted under section 47 of the Criminal Code of treason and sentenced to imprisonment for life or was convicted of high treason under that section;

(b) was convicted of a terrorism offence as defined in section 2 of the Criminal Code — or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section — and sentenced to at least five years of imprisonment;

(c) was convicted of an offence under any of sections 73 to 76 of the National Defence Act and sentenced to imprisonment for life because the person acted traitorously;

(d) was convicted of an offence under section 78 of the National Defence Act and sentenced to imprisonment for life;

(e) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 47 of theCriminal Code and sentenced to imprisonment for life;

(f) was convicted under the National Defence Act of a terrorism offence as defined in subsection 2(1) of that Act and sentenced to at least five years of imprisonment;

(g) was convicted of an offence described in section 16 or 17 of the Security of Information Act and sentenced to imprisonment for life; or

(h) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 16 or 17 of the Security of Information Act and sentenced to imprisonment for life.

In order to comply with international conventions regarding the prevention of statelessness, Bill C-24 also introduces to the Citizenship Act a new section 10.4 which states:

Restriction

10.4 (1) Subsections 10(2) and 10.1(2) do not operate so as to authorize any decision, action or declaration that conflicts with any international human rights instrument regarding statelessness to which Canada is signatory.

(2) If an instrument referred to in subsection (1) prohibits the deprivation of citizenship that would render a person stateless, a person who claims that subsection 10(2) or 10.1(2) would operate in the manner described in subsection (1) must prove, on a balance of probabilities, that the person is not a citizen of any country of which the Minister has reasonable grounds to believe the person is a citizen.

The idea of revoking citizenship is a controversial one, and there are certainly strong arguments that can be made for and against.  What is interesting, however, is how the Government of Canada and Citizenship and Immigration Canada (“CIC“) have gone to great lengths to say that it is only “dual citizens” who risk having their citizenship revoked.  Despite Bill C-24 mentioning that revocation will not apply where statelessness occurs, the phrase “stateless” rarely appears in CIC press releases.  “Dual citizen” does.

The cynic in me would suspect that this is because the notion of “dual citizenship” applies to a small percentage of the Canadian population (some 863,000 out of 32,000,000 people, according to the 2006 census) who voluntarily hold multiple citizenships.  By stating repeatedly that Bill C-24’s revocation provisions only apply to dual nationals, the Government of Canada and CIC can thus assure the overwhelming majority of Canadians that they do not have to worry that the revocation provisions of Bill C-24 will ever apply to them.

But should they worry?

The Jews and Israel, as an Example

After Bill C-24 was introduced into the House of Commons, several people expressed concerns that the number of people who could face revocation of their citizenship might be much broader than what the Government of Canada was asserting.  Several lawyers, for example, expressed concern that the revocation provisions could technically apply to most Jewish Canadians because of Israel’s Law of Return.

Robin Seligman, an immigration lawyer in Ontario, for example, told the House of Common’s Standing Committee on Citizenship and Immigration (the “Committee”) that:

Looking around at the names in this room, I can tell you that most people here probably have a claim. It affects people that have Italian parents, British parents, U.K. parents, Chinese parents, and of particular concern is that every Jewish person in Canada has the right to move to Israel and claim Israeli citizenship. In effect—and I’ve provided materials on the right of the law of return—every Jewish person in Canada can be impacted by this legislation, because they could claim status in Israel.

Ms. Seligman’s opinion was not unanimously shared.  Addressing what Ms. Seligman stated, Simon Fogel, the Chief Executive Officer for the Centre for Israel and Jewish Affairs, said before the same committee that Bill C-24’s revocation provisions would not apply to most Jewish Canadians, and stated:

This is not the case.

According to the UN 1954 Convention relating to the Status of Stateless Persons, a stateless person is defined as someone who is not considered as a national by any state under the operation of its law. The UN High Commissioner for Refugees has clarified that the convention does not ask whether a person should or could be a national of a particular state based on its legislation, but rather whether the person is a national of another state. Israel does not consider Jews in Canada to be nationals of the state under the Law of Return; rather, they have a legal right to become naturalized as Israeli citizens through a voluntary immigration process subject to certain restrictions

For a Canadian Jew to be considered an Israeli national, they would first have to immigrate to that country and be certified as a new immigrant.

The possibility to become an Israeli citizen does not equate to dual nationality for Canadian Jews, according to the UN convention on statelessness, or according to Bill C-24. Were the minister to seek the revocation of a Jewish Canadian citizenship, the individual facing revocation, you’d only prove they are not a citizen of another state—be it Israel, the United States, the U.K., or anywhere else—in order to prevent the revocation due to Canada’s international obligations regarding statelessness. This is no different for Jews than for any other Canadian citizen. As long as Jewish Canadians are not dual citizens and do not commit one of the prescribed offences, there would be no ability for the minister to revoke their citizenship.

However, while it’s a right, it’s not an obligation. For example, I’m a Canadian-born, Montreal-born Jew. I’ve been to Israel more than a few times in my life. I carry a Canadian passport because I was born in Canada. I do not carry an Israeli passport. I’m not a citizen of Israel, because I haven’t made application to be a citizen of Israel. So there are no circumstances under which I as a Jew, as a Canadian citizen, could have my citizenship revoked by virtue of being a national of another country, be it Israel or any other country.

For the purpose of this blog piece, it is interesting to note that Mr. Fogel felt that it was necessary to reassure the Committee, and indirectly Canadian Jews, that they would not be potentially encompassed by Bill C-24’s revocation provisions.  However, is he right?

The Budlakoti Decision

On June 8, 2015, the Federal Court of Appeal issued its decision in Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 (“Budlakoti“).  Although the decision does not pertain directly to Bill C-24, the Federal Court of Appeal’s pronouncements on what “statelessness” means support the assertion that Bill C-24 will encompass a much broader range of the Canadian population than what the Government of Canada has been saying.

Mr. Budlakoti was born in Canada to parents who were employees of the Indian High Commission.  As a result of his parents’ employment, he could not be conferred citizenship under Canada’s Citizenship Act.  Mr. Budlakoti never applied for Indian citizenship, and India does not consider him to be a citizen.  Mr. Budlakoti argued at the Federal Court of Appeal that the Canadian government not considering him to be a citizen rendered him stateless.

Despite Mr. Budlakoti not having citizenship in any country, the Federal Court of Appeal disagreed that he was stateless.  The court stated:

It is true that as a result of the facts described above, the appellant is not recognized as a citizen of any country at the present time.

However, the Federal Court of Appeal then went on to state that:

But that is not statelessness in the international law sense. Under Article 1 of the 1961 Convention on the Reduction of Statelessness (acceded to by Canada on July 17, 1978), a person is stateless only where the person does not have national status or citizenship in Canada and the person is “otherwise stateless”—i.e., as a legal or practical matter the person cannot get citizenship or national status elsewhere.

On the state of the evidence before us, India is an adequate and effective forum for the appellant. The appellant has considerable connection with India. The Board found he was born to two Indian nationals while they were working for officials with the Indian High Commission. This raises the apprehension that the appellant could be a national of India by birth and that he may apply for Indian national status or citizenship. Many states grant national status or citizenship in circumstances such as these. If Indian authorities grant the appellant national status or citizenship, any alleged statelessness would disappear.

On the record before us, the appellant has not shown any legal or practical obstacle to acquiring national status or citizenship in India. Nothing has been placed before us that would suggest that a person born in Canada to two Indian nationals working for officials with the Indian High Commission cannot apply for Indian national status or citizenship or that, as a legal matter, India would deny the appellant national status or citizenship.

In attempting to prove statelessness for later administrative or legal proceedings, the appellant conceded at the hearing of the appeal that the best proof that India will not grant national status or citizenship is for him to apply to the Indian authorities and be refused. But the appellant has never applied to those authorities.

To briefly summarize the above, the Federal Court of Appeal found that Mr. Budlakoti was not stateless because it was reasonable to believe that he could acquire Indian citizenship, and he had not shown that he could not through a refused Indian citizenship application.

The Implication

If the Federal Court of Appeal’s interpretation of statelessness as articulated in Budlakoti apply to Bill C-24’s revocation proceedings, then the implications are clear.  Most Canadian Jews could be encompassed by Bill C-24’s revocation provisions given Israel’s Law of Return.  As Ms. Segilman stated before the Committee, the same could be true for people that have Italian parents, British parents, U.K. parents, Chinese parents, etc.

My point is not to argue that Bill C-24’s revocation provisions are bad, or that people who commit acts of terrorism or other significant breaches of national security should not have their citizenship revoked.  Rather, it is to stress that it is important that the debate occur within the proper context, and that in light of Budlakoti it is disingenuous to continue saying that the revocation provisions definitely only affect dual nationals. It is easy to support legislation that only affects “the other.”  It becomes a much more interesting and genuine analysis when you realize that the legislation could potentially apply to you.


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