Citizenship
- a Casualty of the War on Terror?
June 2014
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Canadian citizenship
is a right which can be more easily lost
since June 16th, 2014 when Bill C-24
passed into law. Alex Neve of Amnesty
International said the new citizenship
bill was "divisive, discriminatory,
retrograde and profoundly unfair."
Citizenship is a right in the UN
Covenant on Civil and Political Rights -
a treaty ratified by Canada. The right
to nationality is a right in the
American Declaration of the
Rights and Duties of Man and so
incumbent on all OAS member states
including Canada. Key safeguards for
this important right are the a right to
fair trial and the right to effective
legal remedy which are impaired by Bill
C-24. A vague allusion to potential for
terrorism is invoked to justify this.
The Canadian Association of
Refugee Lawyers told parliament’s
committee on May 5 2014: “Gone is the
appeal as of right. Instead a person
whose citizenship is revoked will have
to apply to the Federal Court for
permission to start an appeal. And of
course, under basic legal principles the
Federal Court will be required to defer
to the views of the Minister and will be
reluctant to disagree with the
Minister’s assessment of the evidence,
so the scope of any review by the Courts
will be very limited indeed. Fair
judicial process for revocation has been
replaced by Ministerial discretion. This
process mimics the present process for
permanent residents who wish to access
judicial review, and demonstrates again
the way in which citizenship has been
downgraded to a form of permanent
resident status.”
Adjudication
of the right to citizenship is not a
simple matter as the Nottebohm Case at
the International
Court of Justice showed in 1955. Nottebohm
was German born, obtained Lichtenstein
citizenship, but lived and worked for
over 30 years in Guatemala. Guatemala
arrested, detained, expelled and refused
to readmit Mr. Nottebohm and seized and
retained his property without
compensation. Lichtenstein argued this
was in breach of obligations under
international law. The ICJ found that
Lichtenstein could not argue for
Nottebohm because his Lichtenstein
nationality had been purchased and was
not validated by serious ties with that
country. Family
and other links to a country are an
essential part of citizenship from an
international perspective. By
implication, the ICJ suggested that
Guatemala was Nottebohm's country. On
that basis he should have had the
citizen's automatic right of re-entry.
Following the ICJ ruling, Canada
cannot claim that its citizenship law
should be recognized by any other
country unless it conforms with the
international norm of citizenship based
on an effective link between Canada and
the individual. A Canadian view of a
link to terrorism is not all there is to
be considered when removing citizenship!
There are alternatives to citizenship
removal on account of terrorist links
which do not discriminate among
naturalized and native-born citizens.
On
June 22nd the Globe and Mail published a
major feature on the front of its
Insight pages “Terrorist or Big Talker”
about the conviction of Hersi under
Canada’s new anti-terror provisions. “A
jury ruled he was preparing to join Al
Shabab, but the case leaves behind a
trail of questions.” The
CBC told the story on June 25 in its
morning news. I think this is as good as
it can get – a trial. Yet even after a
public trial the Globe article found the
jury ruling questionable. And
the article notes Mohamed Hersi was born
in Somalia but came to Canada in 1998.
That means he came at age 12 and studied
in Canada during his formative teenage
years. We
can note that under the new citizenship
law, after serving his sentence he will
qualify for citizenship removal,
something a citizen born in Canada could
not face. After that he could also face
deportation to Somalia. The fair trial
can make sense. But removing citizenship
and deporting after a trial and a
sentence would make no sense, as I
argued some years ago about the
controversial process then of deporting
of permanent residents with criminal
records.
A decade or so ago Canada was busy
deporting back to Jamaica quite a number
of young Canadian permanent residents
who had come from Jamaica as children
and who had later been convicted
of “serious crimes.” This
was after they had served the normal
sentence for their crime. Immigrants
from Jamaica had brought their small
children. Some of the children became
criminalized during their Canadian
education and upbringing. Essentially
these were young men of 19 -22 whose
country was Canada but who had been
convicted of a serious crime and then
discovered they, or their parents for
them, had not obtained Canadian
citizenship. As
a result of a conviction, the government
could deport a permanent resident, who
had served the normal sentence for the
crime, away from family and friends back
to Jamaica. Jamaica was a country
ill-equipped to handle criminalized
young men who were essentially Canadian
and whose families were back in Canada.
It seemed to me then that a youth who
turned to crime in Canada was Canada’s
problem – not Jamaica’s. Deportation did
not seem to be any solution. It was
simply passing Canada’s Canada-made
problem to another country. I
feel the same way about the new
possibility of deporting citizens who
have engaged in activity associated with
Canada’s definitions around the theme of
terrorism.
Accounts of current cases involving the
UK show how very differently the UK’s
current citizenship-stripping law plays
out. It
is not stripping citizenship for
deporting. More
insidiously, it is stripping citizenship
to “lock out” the former citizen. This
is reminiscent of what Guatemala did to
Nottebohm in the ICJ Case mentioned
above.On
June 22nd Kevin McLeod circulated by
email to the Canadian Council for
Refugees (CCR) listserve an article from
The Nation dated May 21st 2014. Mahdi
Hashi, 24 yrs, was in a cell in
Metropolitan Correctional Centre,
Manhatten. His family had moved to
London UK from Somalia when he was 6
years old and he had become a citizen.
At 19, when he was returning from a trip
abroad, the UK’s security agency MI5
asked him to become an informant. His
refusal was in the media at that time.
He moved back to Somalia to escape
related harassment by UK authorities,
married there and had a son.
In 2012 Hashi’s family in the UK was
told their son’s citizenship had been
revoked on account of his being involved
in Islamic extremism. “According to the
elder Mr. Hashi, after his son heard
about the deprivation orderfrom
his family he decided to travel to the
British consulate in neighboring
Djibouti in the
hope of lodging an appeal. Individuals
have only twenty-eight days to contest a
revocation, a very short window of time
particularly since most individuals are
outside of the UK when they receive
notice. The Bureau of Investigative
Journalism (TBIJ), a British nonprofit,
recently revealed that the home
secretary has even waited for a
suspected individual to leave the UK
before issuing a deprivation order.” Challenging
this is difficult. Deprivation orders
are civil actions so the burden of proof
is less than for a criminal charge. The
UK judge has only to establish that the
individual is more likely than not to
pose a threat to British interests.
Proceedings occur in the Special
Immigration Appeals Commission, a UK
court where a person can be denied
access to ‘sensitive’ material l -- even
if the secret evidence is what purports
to demonstrate the alleged extremist
activities. The Canadian legislation
which came into law June 16, 2014 seems
to use this approach of reduced legal
safeguards.
In the summer of 2012 Hashi disappeared.
His account is that he was arrested in
Djibouti and interrogated by US CIA and
FBI agents. Several months later he
appeared in New York on
terrorism-related charges. The Nation
found he was flown to the US in November
2012 under a false name. The Nation says
that “Hashi’s case is one of several in
which Britons received deprivation
letters, only to later face sinister
action at the hands of the US
government.” The Nation believes that
the UK collaborates with the US and that
the stripping of citizenship takes
pressure off the UK government. It is,
of course, unconscionable to pass one’s
citizen into the hands of another power
in places where allegations of terrorist
activity can lead to torture or cruel
treatment without a full examination of
the evidence by a court. It is equally
unconscionable to allow one’s citizens
to be interrogated in situations where
torture or cruel treatment will be used
to obtain evidence, likely secret
evidence, for future trials.
Note that freedom of movement - the
right to return to one’s country -
applies only to a citizen under current
Canadian law. A lack of citizenship,
when a person is outside Canada, or
deported from Canada, brings
a lack of right to return to the country
and hence a lack of access to an
effective remedy.
The consequences of UK citizenship
stripping as reported are significant
for the individual. This means that the
due process fordenying
the right must be correspondingly
effective so that the reduced due
process would be illegal. The
corresponding use of Canadian
citizenship stripping is likely to be
illegal too. Citizenship is a right. The
right is central to the right to freedom
of movement which provides a citizen
with the right to enter his or her
country. Several
other subsequent rights are then
contingent on citizenship. Safety
becomes an issue when citizenship is
revoked in the name of terrorist
association. The consequential effect on
many other rights increases the
significance of a revocation of
citizenship. In the Americas impairing
such a right require a simple effective
court remedy which protects the
individual - a remedy like the old UK Habeas
Corpus. To have an effective
remedy when one’s citizenship is
stripped at least requires an
independent and impartial tribunal. I
argue there must be a court appeal
capable of putting itself between the
individual and the authorities so as to
protect the individual's right. The
individual also has the right to an
effective remedy – one which is
effective in his or her particular
situation – even if that situation is
abandonment overseas. One
hopes that the international human
rights bodies will eventually weigh in
on the despicable UK practice.
On this matter of an effective remedy,
the UK Hashi case differs significantly
from the older Canadian practice of
deportation of young Canadian permanent
residents to Jamaica after a criminal
conviction. In the deportation case
there is a legal remedy which can be
effective. A deportation order can still
be contested from within their country –
Canada -- before deportation happens.I
still complain about the inadequacy of
the legal remedy, but it can be a
remedy. And I still think that the
addition ofdeportation
after one has paid the sentence for
one's crime is an unfair and
discriminatory. It is an ”extra
sentence” as compared with the sentences
of citizens similarly convicted. Still,
deportation can sometimes be prevented.
The June 22 Canadian case in the Globe
& Mail about Mohammed Hersi is
also different. He had a trial and was
convicted by a jury of “preparing to
join Al Shabab.” He was apprehended as –
he says – he was about to leave Canada
to study Arabic in Cairo. He was at that
time, and is still, in Canada. He
remains a citizen for now. True,
there was no evidence of active
involvement in terrorism – just some
talk with an under-cover policeman and
some related evidence that he was
thinking about a terrorist organization.
(Indeed, this Canadian case seems a bit
like a show trial around the new
anti-terrorism provisions, coinciding
conveniently to appear to add support to
the revisions to the Citizenship Act.)Yet
even if it offends for a jury to convict
someone largely for just talking about a
terrorist organization, the
circumstances seem less offensive than
those in the British Hashi case.
In the UK case, the UK gave Hashi no
trial. The UK just used its citizenship
stripping law. In the contrasting
Canadian Hersi case, Hersi was prevented
from going to Cairo so that any thought
of having his citizenship stripped while
he was there did not arise. Canada took
responsibility to deal with the
activities of this citizen. He had a
trial under new anti-terrorism
provisions. Since he didn’t go to Cairo
he couldn’t get involved in anything
there and Canada could argue that this
was preventative of further terrorism.
The Globe finds the jury decision
debatable. For
me
it would not be surprising for a jury to
err on the safe side of not risking
terrorist activity, rather than erring
on the side of giving Hersi the benefit
of the doubt. Hersi
will have to serve a sentence. It
could be wrongful conviction, but it
could be a preventative act.
Nonetheless, under the new Citizenship
law, after Hersi has served his
sentence, an official will have the
discretion to decide whether or not to
strip citizenship and then whether or
not to deport. As with the older
practice of deporting permanent
residents after they had served a
sentence, why do it? I
don’t get the point. And if there are
moves to deport citizen Hersi, he could
try to resist while still in Canada.
Since countries collude in such matters,
it could only be a matter of time before
Canada uses the devastating UK ploy of
quietly stripping citizenship once the
citizen has left the country for travel
or study or work.
Citizenship
is a fundamental right, and is
especially significant as a "home"
in
an era of travel for study and work. Other
rights including the right to return to
one’s country stem from it. Once
a citizen, always a citizen.Citizenship
should not go away because a child grows
up and commits crimes or has bad
associations. Anyone who has citizenship
– as a result of being born in the
country or not -- should face similar
punishments for similar activities -- no
more and no less. If citizenship is to
be removed because it was obtained
through fraudulent naturalization, then
the due process - the fair trial and
meaningful appeal examining the matter –
must offer an effective remedy for a
potentially wrongful removal of
citizenship for that individual in
whatever that individual’s circumstances
are. So mark down the Citizenship Act
for revisions when justice next rolls
down like a mighty river!
