Canada: The Citizen Act, In Flux Again

Last Updated: June 15 2016
Article by Rita R. Tripathy and Sydney Black

In BD&P's July 2015 Business Immigration Newsletter, we took readers through the significant changes made to the Citizenship Act by Bill C-24. These changes included a narrowed definition of residency, a heightened threshold for residency, and, significantly, the ability to revoke citizenship from naturalized Canadians.

Since that article, there has been a sea of political change in Canada. Justin Trudeau's Liberal Government was elected in October, 2015. The Liberals campaigned on a promise to revoke Bill C-24: "a Canadian is a Canadian is a Canadian," Justin Trudeau insisted. Now with a majority government, the Liberals have started putting some of their Citizen Act promises into action.

WHAT HAS BEEN CHANGED?

The Ability to Revoke Citizenship

Bill C-24's most controversial change was that a naturalized citizen, if convicted of certain criminal offenses, could have his/her citizenship revoked. Previously, citizenship could only be revoked when obtained by false representation, fraud or by knowingly concealing material circumstances. The ability to revoke citizenship based on incidents that occur after someone becomes a citizen will be stripped from the Citizenship Act.1 This change is retroactive so that any Canadian whose citizenship was stripped under Bill C-24's criminal offences rule will have his/her citizenship restored.

Language and Knowledge Requirements

Would-be Canadians are required to pass language and knowledge tests to qualify for citizenship, subject to some exemptions. Bill C-24 narrowed those exemptions, requiring minors over 14 and people under 65 to pass both tests. The public had raised a concern that families might be separated by teenagers being required to pass the citizenship test and have restored the previous exemptions: no minor or person over 55 is required to take the tests.2

Residency Requirements

Bill C-24 increased the residency requirements for people applying for citizenship. Prior to Bill C-24, a person had to be resident in Canada for three years in four. Bill C-24 changed that to four years in six. The Government's recent change to residency requirements makes it three out of five years, resulting in an easier requirement to satisfy.3

The Government has restored the right of refugees and temporary residents seeking permanent residence to count each day of residence as a half day (to a maximum of 365 days). This will make it easier for permanent residents to meet their residency requirements.4

Intent to Reside

Bill C-24 required people to prove their intent to reside in Canada after being made citizens. There was some doubt as to whether this requirement was at odds with the Charter of Rights and Freedoms' protection of mobility rights. The requirement will be repealed.5

WHAT HAS NOT CHANGED

There are other, more minor elements of Bill C-24 that are being repealed. However, what may be more interesting are the elements of Bill C-24 that the Government has chosen to keep.

The Revocation Process

Prior to Bill C-24, a person under investigation had the right to elect to be heard at the Federal Court. Bill C-24 introduced an administrative process for revoking citizenship. This administrative process has not been changed. Where the Minister suspects someone has obtained citizenship fraudulently, a hearing is only required under exceptional circumstances.

This process has already had its constitutionality challenged. A temporary stay has been issued on all cases that have challenged the fairness of the new procedure. Under the new process, someone who has been accused of fraudulently obtaining citizenship has no right to an oral hearing, no right to full disclosure and no right to call witnesses. Another criticism of the process is that the decision-maker works with the official responsible for mounting a case in favour of revocation, raising concerns about the decision-maker's independence and impartiality. Critics say, given what's at stake, this level of procedural fairness falls far short of what is owed to Canadian citizens under investigation.

This process is likely to be in the spotlight, given a recent report from the Auditor-General that concluded that the Department of Immigration, Refugees, and Citizenship Canada has not properly detected or prevented citizenship fraud. 700 cases, from July, 2014 to October, 2015, are now under review.6

Application after Revocation

Prior to Bill C-24, where someone was found to have lied in order to obtain citizenship, he/she would not be able to become a citizen again for five years. That ban was doubled by Bill C-24, and the Government will be keeping this ten year ban.

Offences Outside Canada

Bill C-24 barred anyone who had been charged with an offense outside of Canada from obtaining citizenship. The Minister can waive this prohibition on compassionate grounds but the restriction remains. There are still concerns that people who have been charged with an offense by an undemocratic government will have to overcome this presumption against granting citizenship.

CONCLUDING THOUGHTS

While much of the Citizenship Act will be restored to the provisions that existed prior to Bill C-24, some controversial changes are being retained, particularly the revocation process. That process is currently being challenged, and may be found to violate the Canadian Charter of Rights and Freedoms.

Footnotes

1 Bill C-6, 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016, s. 3

2 Bill C-6, 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016, s. 1(6) and (9)

3 Bill C-6, 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016, s. 1 (2)

4 Bill C-6, 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016, s 1(7)

5 Bill C-6, 1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016, s. 1(8)

6 http://www.theglobeandmail.com/news/politics/gaps-in-ottawas-detection-of-citizenship-fraud-auditor-finds/article29830872/

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