Tom Clark

All Permanent Residents are Not Equal
November 2016

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All permanent residents in Canada are not the same when it comes to getting citizenship. In British Columbia citizenships have been arbitrarily suspended while officials examine the cessation of refugee status. The Federal Court case of Nilam (Docket T-232-16 3 August 2016) explains the situation and shows a way for the courts to fix at least part of that situation.

Nilam was a refugee and permanent resident. Officials investigated the cessation of refugee status because he had renewed his Sri Lankan passport and visited family in the country more than once. The Immigration and Refugee Board, IRB, was asked by the authorities to examine for cessation and found against it. Nilam applied for citizenship, met the test, had the interview then was told his citizenship was being delayed for possible cessation. Officials had appealed the IRB decision to the Federal Court, which ruled in favour of the officials so that the IRB is to rehear the cessation case sometime. A different Federal Court judge in the Nilam case has ordered citizenship to proceed but referred a question about this use of cessation in citizenship proceedings to the Federal Court of Appeal. That process is pending at the time of writing.

All permanent residents are not equal. Those who got that status as a result of being Convention Refugees are discriminated against. They are really “conditional” residents who can loose their status if there is “cessation” of the refugee status that led to permanent residence status.

Nilam shows the unequal permanent resident status can be used when someone otherwise qualified to become a citizen can have citizenship delayed because they were a refugee. This is discrimination in the application of the Citizenship Act. Surely, if an applicant is a permanent resident at the time of application, that is enough?

There are three concerns. First, refugees who qualify as permanent residents should be like all the rest rather than contingent residents. The cessation issue should not be linked to permanent resident status – that should be permanent. If the person has refugee status as well, the cessation of that refugee status is a separate issue. This is the view of the Canadian Council for Refugees. Of course, once a Canadian citizen, refugee status automatically ends in accordance with the international rules. The link to cessation of refugee status should be struck out of the requirements for a permanent resident in order to make all permanent residents equal. That could be tricky in the Nilam case question to the Federal Court of Appeal.

Second, permanent residents before the Citizenship Act should be treated equally. It is perverse to use a citizenship process against persons who, at the time of application, qualify for citizenship. The cessation delay provision in section 13 of the Citizenship Act is discriminatory and counter to the main purpose of the Citizenship Act, the reference to cessation should simply be struck out (declared of no force). The Nilam question to the Federal Court of Appeal might allow that.

Third, there is a question as to Canada’s use of cessation proceedings. Use of the process appears arbitrary. This creates a threat of potential cessation and consequent deportation that hangs over refugees. Living under a threat of this arbitrary procedure for 5-10 years or more adds up to a serious impairment of their right to security of the person. This is an important civil right. A state process that seriously impairs an important right must be for a legitimate state purpose, necessary and proportionate relative to the impairment of right. It true that there is opportunity for a fair hearing before the IRB once officials have decided to apply cessation. And that IRB decision can be reviewed by the Federal Court. But the issue here is the fairness of the triggering of that IRB hearing of cessation, as well as the possibility of a mistaken cessation. Certainly there will be more fears, more legal costs and inconvenience for the refugee. The arbitrary triggering of this process is a source of loss of security of the person.

There is also clause 3 of the 1951 Convention relating to the status of refugee that requires non-discrimination in the application of the Convention, including the application of the cessation clause. That too calls for a systematic procedure that triggers the application of the clause by the IRB to those refugees affected by some significant change in general home country conditions warranting cessation of the status.

Officials may claim that some change in conditions plus significant travel to a home country plus getting a passport from a home country are objective criteria on which to trigger an IRB examination for cessation. But that isn’t enough. For anyone in Canada for 5-10 years the situation will have changed in a home country. The risk of having refugee status challenged for cessation could fall on a big percentage of refugees in Canada. The impaired security of the person of these many refugees puts an obligation on the state to announce the possibility of cessation and to provide clear criteria for triggering an examination for cessation by the IRB. It should not happen that someone like Nilam, able to satisfy the Canadian citizenship application, should trigger an IRB examination and court appeal. If legal obligations are to be met, it would be far fairer, simpler and cheaper to decide that cessation will not be applied once refugees are accepted as permanent residents.

It’s useful to step back from the minutiae at issue and get some wider bearings on these issues.

The original cessation allowed refugee status to be declared redundant because there had been a significant transformation in the political situation in the country of origin – like the end of the Cold War and the fall of the Berlin Wall and the end of Apartheid in South Africa. There also has to be stability in the situation, and there can remain dangers for some individuals. This is when the UN High Commissioner for Refugees, UNHCR, will allow voluntary repatriation. However, this is also when some governments decide they can deport former refugees to whom they granted that status. Otherwise, refugee status, once determined, does not have to be renewed or the validity re-tested periodically. The thinking on this has changed little since the UNHCR held expert round table discussions as part of its Global Consultations in 2001. The findings were published in Refugee Protection in International Law … 2003.

Cessation requires a significant transformation that is stable. Nevertheless, some refugees should in any event not be forcibly returned. Signatory states to the Convention decide cessation. Under article 35 of the Convention, the UNHCR can supervise the application of the Convention and thus the application of the cessation clause. For non-signatory States the UNHCR applies article 6 of the Statute to decide cessation of refugee status recognized by the office.

Canadian officials too easily interpret travel to the home country by refugees and the getting of passports by refugees as meaning the refugee has accepted the protection of the home state so that there can be an examination for the cessation of refugee status. But there are no clear criteria for this. Moreover, travel is normal in our era. Going to a home country for family matters like funerals is important, and the risks the person takes to do so are very different from the risks of living there. Traveling with a refugee document begs questions and can be dangerous. The issuing of passports is a different particular obligation on a State that tends to be processed by a distinct part of a government. It can be a lesser risk for refugees to decide to get home country passports to travel. This is not moving back home and it is not re-availing oneself of State protection. It is not voluntary repatriation. It is important to note that a home country must take back a person with its passport so that any refugee with a passport can become attractive to officials here seeking to boost deportation quotas.

Equal treatment / non-discrimination is a Charter right for everyone in Canada. It applies to the rights and benefits of permanent resident status. It applies to permanent residents who apply for citizenship. A delay in granting citizenship is a discrimination against permanent residents who are refugees. Non-discrimination might require an easier processing for refugee permanent residents because they are a disadvantaged group. Equal treatment applies to how refugees are treated with respect to cessation.

The International Court of Justice found in the Nottebohm Case that from an international perspective citizenship itself depends more on attachment to a country than formal citizenship. For Nottebohm, living in Guatemala and running a business for many years mattered more than a formal paper citizenship from Lichtenstein. For international recognition, citizenship must involve real attachments to the country beyond a piece of paper! Whatever the particularities of their status, long-term residents active in Canadian communities are in that international sense already close to being citizens. They are just waiting for formal recognition. To my mind countries should provide a mechanism allowing long-term residents to be recognized as citizens. The more so immigration countries.

Finally, a person whose rights are impaired by those in authority should have a simple effective court remedy. In Canada, mandamus at the Federal Court can be a remedy for Nilam. Yet to my mind, striking out the possibility of cessation for permanent residents would be a wider enduring remedy for the discriminatory provisions that hang over permanent residents who are refugees.

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All Permanent Residents are Not Equal November 2016 Click square for index All permanent residents in Canada are not the same when it comes to getting citizenship. In British Columbia citizenships have been arbitrarily suspended while officials examine the cessation of refugee status. The Federal Court case of Nilam (Docket T-232-16 3 August 2016) explains the situation and shows a way for the courts to fix at least part of that situation. Nilam was a refugee and permanent resident. Officials investigated the cessation of refugee status because he had renewed his Sri Lankan passport and visited family in the country more than once. The Immigration and Refugee Board, IRB, was asked by the authorities to examine for cessation and found against it. Nilam applied for citizenship, met the test, had the interview then was told his citizenship was being delayed for possible cessation. Officials had appealed the IRB decision to the Federal Court, which ruled in favour of the officials so that the IRB is to rehear the cessation case sometime. A different Federal Court judge in the Nilam case has ordered citizenship to proceed but referred a question about this use of cessation in citizenship proceedings to the Federal Court of Appeal. That process is pending at the time of writing. All permanent residents are not equal. Those who got that status as a result of being Convention Refugees are discriminated against. They are really “conditional” residents who can loose their status if there is “cessation” of the refugee status that led to permanent residence status. Nilam shows the unequal permanent resident status can be used when someone otherwise qualified to become a citizen can have citizenship delayed because they were a refugee. This is discrimination in the application of the Citizenship Act. Surely, if an applicant is a permanent resident at the time of application, that is enough? There are three concerns. First, refugees who qualify as permanent residents should be like all the rest rather than contingent residents. The cessation issue should not be linked to permanent resident status – that should be permanent. If the person has refugee status as well, the cessation of that refugee status is a separate issue. This is the view of the Canadian Council for Refugees. Of course, once a Canadian citizen, refugee status automatically ends in accordance with the international rules. The link to cessation of refugee status should be struck out of the requirements for a permanent resident in order to make all permanent residents equal. That could be tricky in the Nilam case question to the Federal Court of Appeal. Second, permanent residents before the Citizenship Act should be treated equally. It is perverse to use a citizenship process against persons who, at the time of application, qualify for citizenship. The cessation delay provision in section 13 of the Citizenship Act is discriminatory and counter to the main purpose of the Citizenship Act, the reference to cessation should simply be struck out (declared of no force). The Nilam question to the Federal Court of Appeal might allow that. Third, there is a question as to Canada’s use of cessation proceedings. Use of the process appears arbitrary. This creates a threat of potential cessation and consequent deportation that hangs over refugees. Living under a threat of this arbitrary procedure for 5-10 years or more adds up to a serious impairment of their right to security of the person. This is an important civil right. A state process that seriously impairs an important right must be for a legitimate state purpose, necessary and proportionate relative to the impairment of right. It true that there is opportunity for a fair hearing before the IRB once officials have decided to apply cessation. And that IRB decision can be reviewed by the Federal Court. But the issue here is the fairness of the triggering of that IRB hearing of cessation, as well as the possibility of a mistaken cessation. Certainly there will be more fears, more legal costs and inconvenience for the refugee. The arbitrary triggering of this process is a source of loss of security of the person. There is also clause 3 of the 1951 Convention relating to the status of refugee that requires non-discrimination in the application of the Convention, including the application of the cessation clause. That too calls for a systematic procedure that triggers the application of the clause by the IRB to those refugees affected by some significant change in general home country conditions warranting cessation of the status. Officials may claim that some change in conditions plus significant travel to a home country plus getting a passport from a home country are objective criteria on which to trigger an IRB examination for cessation. But that isn’t enough. For anyone in Canada for 5-10 years the situation will have changed in a home country. The risk of having refugee status challenged for cessation could fall on a big percentage of refugees in Canada. The impaired security of the person of these many refugees puts an obligation on the state to announce the possibility of cessation and to provide clear criteria for triggering an examination for cessation by the IRB. It should not happen that someone like Nilam, able to satisfy the Canadian citizenship application, should trigger an IRB examination and court appeal. If legal obligations are to be met, it would be far fairer, simpler and cheaper to decide that cessation will not be applied once refugees are accepted as permanent residents. It’s useful to step back from the minutiae at issue and get some wider bearings on these issues. The original cessation allowed refugee status to be declared redundant because there had been a significant transformation in the political situation in the country of origin – like the end of the Cold War and the fall of the Berlin Wall and the end of Apartheid in South Africa. There also has to be stability in the situation, and there can remain dangers for some individuals. This is when the UN High Commissioner for Refugees, UNHCR, will allow voluntary repatriation. However, this is also when some governments decide they can deport former refugees to whom they granted that status. Otherwise, refugee status, once determined, does not have to be renewed or the validity re-tested periodically. The thinking on this has changed little since the UNHCR held expert round table discussions as part of its Global Consultations in 2001. The findings were published in Refugee Protection in International Law … 2003. Cessation requires a significant transformation that is stable. Nevertheless, some refugees should in any event not be forcibly returned. Signatory states to the Convention decide cessation. Under article 35 of the Convention, the UNHCR can supervise the application of the Convention and thus the application of the cessation clause. For non-signatory States the UNHCR applies article 6 of the Statute to decide cessation of refugee status recognized by the office. Canadian officials too easily interpret travel to the home country by refugees and the getting of passports by refugees as meaning the refugee has accepted the protection of the home state so that there can be an examination for the cessation of refugee status. But there are no clear criteria for this. Moreover, travel is normal in our era. Going to a home country for family matters like funerals is important, and the risks the person takes to do so are very different from the risks of living there. Traveling with a refugee document begs questions and can be dangerous. The issuing of passports is a different particular obligation on a State that tends to be processed by a distinct part of a government. It can be a lesser risk for refugees to decide to get home country passports to travel. This is not moving back home and it is not re-availing oneself of State protection. It is not voluntary repatriation. It is important to note that a home country must take back a person with its passport so that any refugee with a passport can become attractive to officials here seeking to boost deportation quotas. Equal treatment / non-discrimination is a Charter right for everyone in Canada. It applies to the rights and benefits of permanent resident status. It applies to permanent residents who apply for citizenship. A delay in granting citizenship is a discrimination against permanent residents who are refugees. Non-discrimination might require an easier processing for refugee permanent residents because they are a disadvantaged group. Equal treatment applies to how refugees are treated with respect to cessation. The International Court of Justice found in the Nottebohm Case that from an international perspective citizenship itself depends more on attachment to a country than formal citizenship. For Nottebohm, living in Guatemala and running a business for many years mattered more than a formal paper citizenship from Lichtenstein. For international recognition, citizenship must involve real attachments to the country beyond a piece of paper! Whatever the particularities of their status, long-term residents active in Canadian communities are in that international sense already close to being citizens. They are just waiting for formal recognition. To my mind countries should provide a mechanism allowing long-term residents to be recognized as citizens. The more so immigration countries. Finally, a person whose rights are impaired by those in authority should have a simple effective court remedy. In Canada, mandamus at the Federal Court can be a remedy for Nilam. Yet to my mind, striking out the possibility of cessation for permanent residents would be a wider enduring remedy for the discriminatory provisions that hang over permanent residents who are refugees. TOP Click:
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