In
December
2017, I ended up as part of a small delegation
in a general hearing before the Inter-American
Commission on Human Rights. What provoked the
hearing was the concern of two lawyers I had
worked with during my work-life in refugee
affairs. They were concerned about the
deportations of many persons with relatively
minor criminal records to dangerous situations
and with separation from families. The lawyers
were concerned about the lack of any meaningful
legal recourse. Since then I have thought more
about this issue.
The
deportation
of de-facto citizens by Western countries
has gone on since at
least the mid 1990s. I refer to young
people, mostly men, often in refugee
families, brought to a country like Canada
in their childhood, then deported on
the basis of crimes committed at the end of
adolescence to countries they
hardly know – countries that cannot be held
responsible in any way. Loosely
used terms like “public safety” or “national
security” are accepted without
question as justifying deportation. For any
de-facto citizen whose core family
members are living in Canada and who have
ties to Canada from living, education
and working in Canada, deportation is far
too easy. With respect to crime and
exile de-facto citizens should be treated
like formal citizens. There
are
some limits on deportation established in
international human rights law.
Case law from the European Court of Human
Rights, the Inter-American Commission
on Human Rights, the UN Committee against
Torture and the UN Human Rights
Committee has established that deportation
would violate human rights treaties
when there is a real risk of torture as a
consequence or when the balance
between violation of family rights and the
seriousness of a crime committed
would be “disproportionate.” These
international standards should prevent many
of the deportations from Canada. But
problems go deeper. At
the
top of the slew of injustices attached to
deporting de-facto citizens is
discrimination. The criminal justice system
is the general tool for setting
sentences for crimes and dealing with
related issues of public safety.
Deportation comes after the sentence for the
crime has been served. It is a
discriminatory additional sentence for
non-citizens. It comes from legislation
directed only at non-citizens. Unfortunately
the fact that deportation is a
direct extension of criminal justice has
only been acknowledged by the
Inter-American human rights system. The
Inter-American Commission on Human
Rights has found that full criminal law
standards of due process apply to
deportation proceedings. Yet the range of
issues around deportation and de
facto citizens has yet to be addressed by
the Commission. There
is
some arbitrariness in these deportations. It
is just a fluke of fate that
many of the persons involved are not formal
citizens in the first place. They
often arrived as young children with
parents. Some of the persons facing
deportation are shocked to find out that
they are not citizens. They were
educated and learned their skills and
developed their problems from the social
context in Canada. Siblings may be citizens.
Their core family is usually in Canada,
the adopted country. Some are married or
living in stable relationships. Some
do not know the language of the country from
which they were brought as a small
child. There
are
reasons to take the fluke of fate and a
de-facto citizenship seriously. In
its Nottebaum
Case from the 1950s,
the International Court of Justice found
that citizenship related to more than
just a formality – there had to be some real
attachment of the person to the
country. In the case of the de-facto
citizens, there is often an overwhelming
attachment to the country that is seeking
their deportation. There is little to
no attachment to the country for deportation
beyond a formality of birth. International
law is not clear-cut on the rights and
obligations the deporting and receiving
countries have in these situations.
Deportation could be illegal. The
process
brings other issues from international law.
A criminal justice system
is for rehabilitation of the offending
person to society. If the law has done
its job, the person is rehabilitated to
Canada. The criminal justice system
deals with related public safety so that
some of Canada’s most serious
criminals return to society eventually. Why
is there a need to second-guess the
criminal justice system in the case of
de-facto citizens? I
am not convinced that there is a purpose for
deportation of de-facto citizens
that could withstand serious scrutiny. If
there is a clear purpose, is it
necessary to deport the person to achieve
that purpose? After all, this is not
immigration. Canada is not choosing to bring
anyone into Canada in these
situations. The person was admitted long ago
and the person has typically lived
most of his or her life in Canada. Finally,
there is the question of whether
Canada has the right to require another
country to resettle one of Canada’s
de-facto citizens because Canada’s
immigration and refugee law says an
immigration official may second guess the
criminal justice system. Beyond
this,
the decision-making around deportation is
questionable. It can be
triggered or not by an official if a person
has committed a crime with a given
maximum sentence when the person has served
the actual sentence. The actual can
be much less than the maximum. In the
ancient world, exile was the ultimate
punishment. It is now banned as a punishment
for citizens. But for de-facto
citizens, exile is just an administrative
matter in immigration law that an
official may or may not choose to apply
after a sentence for a particular cirme.
True,
for
permanent residents in Canada there can be a
subsequent appeal to the
Immigration Appeal Division. But the
presumptions current in the law do not
default to the international human rights
standards. There is little chance of
a re-examination along the lines this
article is suggesting. For other
non-citizens,
there is a “Humanitarian &
Compassionate” application to immigration
officials or a “Risk Assessment.” Canadian
law has allowed non-citizens with
serious humanitarian situations and
plausible risks of torture to be deported.
Several cases that subsequently went before
international human rights bodies
established
that these deportations would violate rights
Canada agreed to protect. There
can
always be access to the Federal Court by
leave following a decision to
deport. Then this court may raise a question
with the appeal court. This
happened in the 2006 Thanabalasingam case. Thanabalasingam
served a sentence from a criminal court
judge of 6 months for a crime that fit
a “serious crime” definition in the law.
This led to a deportation order for
Thanabalasingam. He was from the Tamil
minority in Sri Lanka that faces
suspicion and risks of mistreatment. He had
been in Canada for some 15 years. The
Federal Court of Appeal established that a
court review defers to the original
decision maker. The court considered only
the question put before it. The law
was being followed. That was all that
mattered. As a permanent resident
Thanabalasingam
could also appeal to the Immigration Appeal
Division. He did. It found that
there was not a serious risk of
consequential torture. In
such
ways national and international courts can
limit themselves to avoid human
rights determinations. It is true that the
European Court of Human Rights has
developed useful case law that aims to
ensure that nobody will be deported to a
serious risk of torture or cruel treatment.
But it has otherwise limited itself
to considering whether the violation of the
right to family life is
“disproportionate” given the seriousness of
a crime. It
is
worth adding that people remaining in Canada
have rights limited by these
deportations of de-facto citizens too. The
family life of each of the remaining
family members is diminished by having a
grown child or sibling removed from
Canada and barred from entering Canada. And
there must always be some impairing
of rights to security of the person. Few
parents would be unaffected by the
exile of their child. These effects are
discounted so far in case law.