Conceptualizing a Jus Cultura: A New Basis for Citizenship or Legal Residency?

Introduction

Imagine you are born in a country and live your whole life there believing that you are a citizen of that country. Then one day, many years later, you are informed that your status as a citizen has been called into a question by "your" government.[1] You are then advised that you are subject to deportation to your "real" country of citizenship. A country that you may have little or no connection to. Being a citizen of a country is an important and integral part of one's identity (or at least it is for most people). The sudden loss of that status and identity can be traumatic and devastating. Although such cases may seem relatively rare, they exist nonetheless. I discuss one such case below - that of Deepan Budlakoti.   

Citizenship law has been in the news a fair bit over the past couple of years. Amongst other issues, there has been much talk surrounding the deprivation of individuals of their citizenship and the general weakening of people's rights as citizens. Concerning these developments in Canada in particular, Professor Audrey Macklin has been an important voice (see her article in the Queen's Law Journal). Professor Macklin's work importantly focuses on legislation which permits the revocation of Canadian citizenship (which mirrors efforts in England). These are important and disconcerting developments. However, I want to draw attention in this post to those who are denied citizenship or even a right to legal residency despite evidence of extensive residency and substantial acculturation within a state and its population. 
     

In this post, I shall offer some preliminary thoughts about a concept that addresses the circumstances of such cases - a jus cultura. A jus cultura as I see it is a right to legal residency if not outright citizenship to those who have lived extensively within a national jurisdiction for a substantial portion of their lives, and who have become intimately integrated and acculturated in the socio-cultural (as well as economic and political) life of the country, but who do not hold citizenship or even legal residency due limitations imposed by current law and to extenuating circumstances that were beyond their control from an early age. While I focus on this one case, I am mindful that the ideas I express here may have applicability and resonance for many other less unique circumstances and phenomena.

These preliminary thoughts are part of a work-in-progress and as my ideas on this concept develop, this post may be subject to further revisions to account for feedback and research (a note will appear on the top of the post indicating the date of the last revision when revisions have been made).

This post is divided into three sections. I start first with the case of Deepan Budlakoti who though having been born in Canada and has lived his whole life in the country, has been denied his status as a citizen. In the second section, I speak in further detail about the jus cultura in view of Budlakoti's case. In the third section, I revisit the Budlakoti case and others whose citizenship or right to legal residency is imperiled but who may benefit from the jus cultura in considering current provisions of Canadian law.  

 

I. The Budlakoti Case

Deepan Budlakoti was born in Ottawa on October 17, 1989. He holds an Ontario birth certificate and has been issued at least two Canadian passports in his lifetime. S.3(1)(a) of the Citizenship Act indicates that a person is a citizen if they were born in Canada after February 4, 1977. On the face of it, Budlakoti would appear to be a Canadian citizen. However, the Canadian government nevertheless does not consider him today to be a citizen of Canada. Here are some reasons why.

When Budlakoti's parents arrived in Canada in the 1980s, they were Indian citizens. They were employed at the Indian High Commission in Ottawa. Near the end of the 1980s, they worked for the Indian High Commissioner at his official residence. Yet, there is some dispute as to whether his parents were employees of the Indian High Commissioner at the time of his birth. This matters a great deal because of the following provision in the Citizenship Act. S.3(2)(b) provides that s.3(1)(a) (noted above) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was an employee in the service of a diplomatic or consular officer or other representative or employee in Canada of a foreign government.

  

Budlakoti was convicted of weapons trafficking and drug importation in 2010. The government of Canada determined that he was not a citizen because one of his parents was employed for an Indian diplomatic officer per s.3(2)(b) of the Citizenship Act. Furthermore, it concluded that he was inadmissible to remain in Canada due to "criminality" as set out in the Immigration and Refugee Protection Act. The Immigration and Refugee Board (IRB) arrived at the same conclusion about Budlakoti's citizenship status after hearing evidence and accordingly issued a deportation order. The Federal Court affirmed the IRB's decision. Budlakoti was eventually released but handed over into the Canadian Border Security Agency's custody. He was subsequently released on the basis of a bond and conditions were imposed with respect to his release. Budlakoti subsequently initiated proceedings in Federal Court seeking a declaration that he is a citizen of Canada (notwithstanding the conclusions made in prior proceedings at the IRB and the Federal Court).

Justice Phelan heard Budlakoti's request for declaratory relief and dismissed the application based on several reasons. First, he doubted that the Court had the power to make such a  declaration unrelated to some other relief or proceedings. Typically, he observed, it is up to the Minister of Citizenship and Immigration or a Citizenship Judge to make such determinations about an individual's citizenship which could then be reviewed by the Federal Court. 

Second, the very issue in question, whether Budlakoti's was a Canadian citizen, was already the subject of earlier proceedings at the IRB and reviewed by the Federal Court - thus raising the question of issue estoppel. In other words, the issue that Budlakoti was seeking to litigate had already been decided on the merits and could not be revisited. In Justice Phelan's view, Budlakoti's application seeking declaratory relief was a collateral attack on a previously decided matter.

Third, even on the basis of the evidence presented, there was significant documentary evidence that at least one of Budlakoti's parents was employed for an Indian diplomatic officer in Canada at the time of their son's birth. Although Budlakoti brought forth affidavit evidence to indicate that this was not the case, the Federal Court determined that the information submitted was inconsistent and the evidence he mounted in support of his position regarding his parents' employment was based on recollections from over two decades ago. The evidence that the government relied on by contrast were documents dating back to the period and had a greater indicia of reliability. 

Fourth, the Court asserted that there was no deprivation of Canadian citizenship if Budlakoti was never a citizen in the first place. Also, according to Justice Phelan, there was no evidence (including expert evidence) that he was not indeed a citizen of India. However, given the fact that India has denied that Budlakoti is an Indian citizen, he is functionally stateless. Of course, it also works in his "favour" that India denies any argument to his being a citizen. If India refuses to allow him entry (and for that matter any other state given his criminal record), he may end up staying in Canada anyway. However, absent some legal recognition, he will not be eligible for health care or to obtain legitimate employment.

[Update (June 18, 2015): The Federal Court of Appeal affirmed Justice Phelan's decision. See Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 139)]
 

II. Developing A Jus Cultura

Let us assume for the moment that Budlakoti is truly not a Canadian citizen (in the legal sense) as the IRB and Federal Court have concluded, and by implication, is an Indian citizen under these circumstances (even though as noted, India does not agree at this time to this status). Should the fact that such an individual is de facto Canadian by having lived his or her whole life in Canada and has been raised and acculturated as a Canadian be considered legally relevant in some way as a means to lawfully remain in Canada?[2] To be sure, key factors that go into a Canadian citizenship application include an individual's ability to speak one of Canada's two official languages and their physical presence through residency in the country. Certainly, an individual who was born in Canada (or brought to Canada at a young age in other cases), has lived in Canada (for most of) his/her whole life, and can speak one or both of Canada's official languages should count for something substantial. Should such circumstances give rise to a jus cultura - that is a right or perhaps equitable pathway to citizenship (or legal residency) based on substantial acculturation? It may be useful to understand how citizenship has been traditionally viewed.

Citizenship has been granted on a few bases. First, the jus soli was considered a basis for granting citizenship to an individual based on their his/her birth within a particular country. At present, Canada and the United States generally recognize this while many others have placed greater limits on this. Second, the jus sanguinis has been considered a basis for granting citizenship to someone who, while not born within the territory of the citizenship-granting state, is still entitled to citizenship on the basis that one or both parents held such status. Third, one can obtain citizenship by being "naturalized". This is a process whereby one obtains citizenship first through extensive residency (typically permanent residency) and after satisfying certain criteria (passing a citizenship test, demonstrating adequate knowledge of a national language). 

Distinguishable from the first two modes but more analogous to naturalization, the "jus cultura" should be available to those who are so intimately connected to a particular country and citizenry (or portion of the country and its citizenry) due to extensive residency in the country (possibly since birth), significant acculturation and identity as a de facto citizen of that country. The jus cultura should be available (at the very least) to those who were placed in this precarious condition for reasons substantially outside their control from a young age (i.e. that is being born in the country but ineligible for citizenship status due to limitations imposed by law - such as for Budlakoti - or having been illegally brought by parents or other persons at a young age). This is what distinguishes the jus cultura from naturalization, for in the latter case an individual is present legally, while in the case of the former, the person is not.

In some ways, the person who is a naturalized citizen or who falls within the scope of a jus cultura (as described here) may have more of a tangible connection to the country than some who hold citizenship by virtue of the jus soli or the jus sanguinis. For example, a person may be born in Canada or the United States and then be taken by his/her parents back to their country of origin. Technically, that person may remain a Canadian or United States citizen but have little connection to the country of their birth. Similarly, a person born to Canadian parents but who was born and lives in another country (let us use New Zealand as an example) can obtain and retain Canadian citizenship through the jus sanguinis (see s.3(1)(b) of the Citizenship Act). Let us assume that such a person has only mild or limited contacts to Canada (through an occasional visit), it would be difficult to say that they would have greater connection to Canada than the person who falls within the scope of a jus cultura one who likely has a much greater connection to Canada, but with none of the protections that come with it. 

 

III. The Budlakoti Case Revisited

How would one go about implementing a jus cultura under current Canadian law. Through the Citizenship Act and Immigration and Refugee Protection Act, there may be statutory provisions which could serve as a basis for obtaining citizenship or permanent residence, respectively, and rooted in a theory of jus cultura. For instance, s.5(4) of the Citizenship Act provides that: "Despite any other provision of this Act, the Minister may, in his or her discretion, grant citizenship to any person to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada [emphasis added]." The language here is of course discretionary and meant to extend at least to those in cases of special and unusual hardship. Those for whom the jus cultura might apply, as discussed earlier, are inherently in conditions of a special and unusual hardship. That is, being forced to leave a country which one associates as their own, has extensive residency in, has been acculturated into and whose presence in that country and acculturation were outside their control. In Budlakoti's case specifically, he is functionally stateless and unable to obtain legitimate employment. This might constitute, in reasonable minds a case of special and unusual hardship - as would being sent to a country to which one has little or connection.

However, and this is particularly relevant to someone in Budlakoti's circumstances, the section is limited by s.22(2) of the Citizenship Act:

Despite anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship if,

(a) during the three year period immediately preceding the date of the person’s application, [...]

the person has been convicted of an offence under subsection 29(2) or (3) or of an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act [emphasis added].

What this provision suggests is that someone in Budlakoti's position would have to wait three years before applying under s.5(4). For most, this could be problematic if they were deported first. In Budlakoti's case, since India does not recognize him as a citizen (and is likely unwilling because of his criminal record), he may be able to remain in Canada while waiting for the three years to pass. However, it is also contingent on the Minister granting citizenship under his/her discretion after the requisite number of years passing. This may be challenging even without the criminal record for an indictable offence - with it, and with certain governments and their punitive positions on criminality, this may be next to impossible.  

As an alternative to citizenship, a foreign national may also seek to obtain permanent residence in Canada on the basis of humanitarian and compassionate grounds (s.25 of the Immigration and Refugee Protection Act) where they are otherwise deemed inadmissible. As above, this provision may provide an ample mechanism through which to implement a jus cultura. However, the provision does not permit the Minister to do so where the basis of inadmissibility falls within ss.34, 35 or 37. Assuming Budlakoti's crime does not fall under these provisions of the IRPA, there may be options for Budlakoti or someone similarly situated to obtain permanent residence. Of course, this requires a Minister (or government), as previously mentioned with respect to citizenship, who isn't governed by punitive considerations but a sense of humanitarian sensibilities and compassion.

The concept of a jus cultura can, I believe, find a place in Canadian citizenship and immigration law (as well as those of other jurisdictions where legislative language is broad enough to allow for its incorporation through interpretation). But, it also requires a mind or mindset that is open to the concept and understands the notion of equity, humanity and compassion in a purposive way as well as a sense of proportionality.   

 

Conclusion

The jus cultura as discussed here is hopefully a relevant way in which to view access to citizenship or legal residency (along with all the rights and privileges which such statuses include) on equitable or humanitarian grounds. It is relevant to more than those afflicted with circumstances specific to Budlakoti. Indeed, a jus cultura is also germane to individuals have been born in a state that does not recognize such persons as valid citizens (see here and here as examples). 

A jus cultura also applies to those who may have been brought to a new country at a very young age but their status was never normalized (or perhaps could not ever be due to current law). This would, for example, include many children brought from Central America to the United States illegally by their parents or other persons and raised there, but who face the continued danger of deportation due to their unlawful status. Such individuals, though not born in the United States, are essentially de facto Americans. They speak English, they have attended school, have lived in the United States for numerous years and intimately acculturated into American society. They are likely considered by many of their contemporaries as essentially American. 

It is important to remember the consequences of deportation. The United States Supreme Court has long observed the drastic nature of deporting someone as “the equivalent of banishment or exile.”[3] Absent a pathway to citizenship or legal residency, that may be the ultimate fate of many "citizens".      

 

NOTES

[1] This is distinct from citizenship stripping or revocation in the sense that revoking a person's citizenship indicates that the government acknowledges that an individual holds citizenship but is eligible for that status being revoked based on some conduct. In this article, I am concerned with instances where the person is deemed not to have held citizenship ab initio.

[2] I hasten to add that what it means to be acculturated as a Canadian should not been seen in a narrow or restrictive way.

[3] See Padilla v Kentucky, 559 US 356 (2010). See Audrey Macklin, "Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien" (2014) 40:1 Queen’s LJ (forthcoming).    

Sources

Legislation and Jurisprudence 

 

Budlakoti v Canada (Citizenship and Immigration), 2014 FC 855, online: http://canlii.ca/t/gdq23.

Citizenship Act, RSC 1985, c C-29, online: http://canlii.ca/t/529x7.

Immigration and Refugee Protection Act, SC 2001, c 27, online: http://canlii.ca/t/529s2.

Padilla v Kentucky, 559 US 356 (2010).

 

Secondary Sources

Audrey Macklin, "Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien" (2014) 40:1 Queen’s LJ 1.

Eroding the Right to Citizenship?: Legal Residency and the Jus Soli

For individuals born in Canada or the United States, the legal consequence of being born in one of these countries is that they are entitled to citizenship in the state where their birth took place.[1] This is referred to as the jus soli. This is in contrast to the jus sanguinis, where citizenship is conferred/conferrable on the basis of one (or both) parent's holding citizenship in a particular country which then grants citizenship to their offspring. In many cases, a person may be entitled to citizenship in country "A" on the basis of jus soli while simultaneously being entitled to citizenship in country "B", the place where their parents hold citizenship by virtue of the jus sanguinis. To illustrate, a Montreal couple moves to Boston and obtains permanent residence in the United States. They then have a child who is born at the Massachusetts General Hospital. By virtue of the jus soli, the child obtains United States citizenship. Also, because his/her parents are Canadian, the child is eligible for Canadian citizenship due to the jus sanguinis.  

Imagine for a moment however that someone is told that despite being born and having lived their whole life in country "A" that they are nevertheless not considered citizens of that country. A recent decision of the Dominican Constitutional Court determined that citizenship in the Dominican Republic (DR) was not merely conferred by virtue of birth in the country, but required that one of the individual's parents were legally resident in the country at the time of birth. As indicated in a National Public Radio article, this has placed many Haitian migrants resident in the DR in legal limbo leaving many seeking to normalize their status.[2] 

While the decision has received criticism from the United States[3] and others in the region,[4] the DR is not the only state that restricts the scope of the jus soli. According to a recent article in the Toronto Star, numerous other states have adopted similar limitations.[5] For example, since 2006, New Zealand (NZ) does not confer citizenship solely by virtue of one's birth on NZ soil. Under the Citizenship Act 1977, a child born in NZ will only receive citizenship if at least one of their parents is: (a) a NZ citizen; (b) entitled to be in NZ indefinitely by virtue of residency status or visa; (c) is entitled to reside indefinitely in the Cook Islands, Tokelau, or Niue; or (d) is an Australian citizen or permanent resident.[6] However the legislation also entitles citizenship by birth where the child would otherwise be stateless. 

According to the NZ Department of Internal Affairs' website, the stated reasons for these changes were to

recognise the value of New Zealand citizenship. The changes mean that a person cannot travel to New Zealand on a temporary permit solely to give birth and gain New Zealand citizenship for the child born in this country. By restricting citizenship by birth to the children of citizens and residents, the Act’s new provisions ensure that citizenship and its benefits are limited to people who have a genuine and ongoing link to New Zealand. 

Clearly what is being targeted here is "birth tourism". Yet, if the intended goal of the law is to halt this practice, the provisions seem overly broad as those also excluded by these provisions include individuals who are born to persons who intend to remain in NZ and have an ongoing socio-cultural link to the host society. The difference of course is that the parents may not be entitled to remain indefinitely and may be residing illegally (despite their genuine intent to remain despite their illegal status). However this nevertheless unfairly impacts on (and punishes) those born in NZ and have become culturally tied to that society (despite their parents' conduct) - they are individuals who have "a genuine and ongoing link" to NZ. 

Incidentally, those who are born in NZ and are residing there but otherwise ineligible to citizenship due to current law, may very well have a more tangible, substantial, ongoing and genuine link to NZ than those who were born outside of NZ but who have or are eligible for NZ citizenship by virtue of the jus sanguinis. The latter are nevertheless a class that continues to be protected even though they may have no genuine and ongoing link apart from their relationship to their parent(s) who hold NZ citizenship. The real danger and concern in all this is that NZ-born non-citizens may face deportation to a state to which they hold citizenship (or eligibility) via the jus sanguinis, yet one which they have little or no connection to.[7] Indeed, they may not have any meaningful knowledge of that country's official and/or spoken language(s). 

Given that children will be amongst those impacted by these laws, it is useful to recall some international norms governing the rights of children. Under article 3 of the United Nations' Convention on the Rights of the Child, the best interests of the child(ren) shall be the primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Amongst other provisions in the CRC that may have relevance here, article 8 states that "States Parties undertake to respect the right of the child to preserve his or her own identity, including nationality, name and family relations as recognized by law without unlawful interference." To be sure, one's identity is intimately tied to their connection with the only country and culture that they have ever known and uprooting them to an otherwise foreign land would not appear to be in their best interests. 

Whether it is the Dominican Republic, New Zealand or any other state, limiting the jus soli can have tremendous ramifications on those born in a land that does not recognize them as citizens. It also imposes a fair amount of uncertainty and anxiety about their long term fate. Through no fault of their own, they are placed in a vulnerable position and told they do not have a sufficient nexus to their country of birth and essentially the only society that they have ever really known.[8] This is clearly distinct from the child born as a result of birth tourism who is then brought back to their parents' country of citizenship and raised there. 

Notes

[1] There are exceptions - for example when a child is born to embassy or consular staff. Such children will not acquire citizenship to a state where their parents are serving in a diplomatic capacity. See e.g. the Citizenship Act 1977, Public Act 1977 No 61 at s.6(2)(a); Citizenship Act, RSC 1985 c C-29 at s 3(2)(a)-(c). 

[2] Sarah Tilotta, "Who's A Citizen? The Question Diving the Island of Hispaniola" National Public Radio (16 August 2014), onine: NPR <http://www.npr.org/blogs/parallels/2014/08/16/340412191/whos-a-citizen-the-question-dividing-the-island-of-hispaniola>.

[3] The fourteenth amendment to the United States Constitution states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." 

[4] Tilotta, supra note 2. 

[5] Although as the Toronto Star article indicates, there are voices in Canada that are urging for similar restrictions. Nicholas Keung, "Ottawa Urged To Remove Citizenship By Birth on Canadian Soil" The Toronto Star (18 August 2014), online: The Toronto Star <http://www.thestar.com/news/immigration/2014/08/18/ottawa_urged_to_remove_citizenship_by_birth_on_canadian_soil.html>

[6] In my previous post, I spoke about families who have sought refugee status in NZ as a consequence of climate change in their countries of origin. In those cases however, children born in NZ were not considered citizens due to the Citizenship Act 1977 revisions discussed above. However in AD, the Immigration and Protection Tribunal (IPT) concluded that the children had a strong connection to NZ. The IPT stated: "Although not New Zealand citizens, both children were born in New Zealand and have never been to Tuvalu. Life in New Zealand as part of an extended family network is the only life they have known. The eldest of the children has commenced schooling in New Zealand, albeit at new-entrant level." AD (Tuvalu), [2014] NZIPT 501370 at para 24.

[7] Of course, a family might succeed in avoiding deportation on the basis of humanitarian grounds as was the case in AD noted above.

[8] Similar concerns apply to individuals who were brought illegally to another country at a young age and raised there. This has been the case for many undocumented persons residing in the United States. The United States has been the only real home for many undocumented persons who are, for all intents and purposes, culturally American or Americanized. The goal of the ill-fated federal Dream Act would have normalized the status of such persons and given them a pathway to citizenship.