A recent article in the Oxford Journal of Human Rights Practice

De-Constructing Marginality with Displaced People: Learning Rights from an Actor-Oriented Perspective by Maro Pantazidou

The article can be found here:

http://jhrp.oxfordjournals.org/content/5/2/267.full 

Here is the abstract:

In this article, I reflect on the lessons learned from a one year action-research process with displaced people in London to advocate for an actor-oriented approach to human rights education. I suggest that when it comes to supporting marginalized people to claim their rights, we need not to look for a transferable set of skills and knowledge but to nurture a rights consciousness – a sense of entitlement to one's rights – through transformative learning methodologies. The article discusses both the content and pedagogy of such methodologies, paying special attention to critical reflection and affective learning. I conclude that for us as human rights educators to engage in transformative learning for human rights we need to approach rights as rooted in the relationships, contextual realities, and perspectives of the people we work for and with, and I suggest that the way we understand rights incurs a set of implications for the way we ‘teach’ and claim them.

"We Have No Rights": Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada by the University of Toronto's International Human Rights Program

The University of Toronto's International Human Rights Program (IHRP) just released a report concerning the Canada Border Services Agency’s treatment of non-citizens with mental health issues. The report can be found here: http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf

The following is a synopsis from the IHRP's web page:

(Toronto) – The International Human Rights Program’s latest report says that Canada Border Services Agency’s treatment of non-citizens with mental health issues is in breach of Canada’s international human rights obligations as it is discriminatory, constitutes indefinite and arbitrary detention, is cruel and inhuman, and violates the right to health.

“We have no rights”: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada finds that the CBSA routinely detains migrants with mental health issues in maximum-security jails—sometimes for years—despite their vulnerable and non-criminal status.

“Our report reveals shocking gaps in the rule of law,” says Renu Mandhane, IHRP executive director. “CBSA transfers migrants who are not serving a criminal sentence to provincial jails in the absence of adequate laws, regulations, or policies. Counsel are not given notice and detainees do not have an opportunity to challenge confinement in maximum security conditions despite the catastrophic impact imprisonment has on their mental health.”

"We have no rights", released in advance of World Refugee Day on June 20, profiles detainees who have been imprisoned between two months and eight years. IHRP researchers travelled to three Ontario jails to interview detainees and collect these “voices from the inside.” Overwhelmingly, the detainees communicated despair and anxiety over their immigration status, their seemingly indefinite detention, their lack of legal rights, their conditions of confinement, and the lack of adequate mental health treatment to allow them to get better.

"UNHCR’s Involvement with IDPs: – ‘Protection of that Country’ for the Purposes of Precluding Refugee Status?" by Bríd Ní Ghráinne*

An interesting 2014 article by Bríd Ní Ghráinne in the International  Journal of Refugee Law on the issue of state protection and internally displaced persons.  Abstract appears below.

Bríd Ní Ghráinne, "UNHCR’s Involvement with IDPs: – ‘Protection of that Country’ for the Purposes of Precluding Refugee Status?" (2014) 26:4 Int J Refugee Law 536.  

 Abstract (taken from here) 

The absence of protection from persecution is a precondition to qualifying as a refugee. However, protection is not solely provided by states and may stem from non-state actors (NSAs) such as international organizations. This article will examine whether such protection may be substituted for ‘protection of that country’ and, if so, under what circumstances, and whether it may thus preclude the application of the Refugee Convention. The focus will be on the United Nations High Commissioner for Refugees owing to its significant role in the protection of Internally Displaced Persons, persons who often go on to make a refugee claim upon fleeing the state. The article will first put forward an interpretation of the term ‘protection of that country’, by examining the refugee definition, in particular the meaning of the terms ‘that country’ and ‘protection’; by analysing relevant principles of EU law; and by outlining how these concepts have been elaborated by relevant jurisprudence on international organizations. The second half of the article will analyse the legal basis and scope of UNHCR’s mandate with IDPs, and will conclude by illustrating the reasons why the activities of UNHCR cannot constitute ‘protection of that country’ for the purposes of precluding the application of the refugee definition.

Duress and The Material Support For Terrorism Exclusion: When Moral Involuntariness Is Not Enough

I. Introduction  

Terrorist organizations are not known for tackling issues with a soft touch. This includes their treatment of those who refuse to be conscripted into their organizations. Such resisters often face persecution or death for their defiance. Through forced conscription they are compelled to provide assistance knowing that it will aid the organization. Some may manage to escape and seek refugee status in another country. 

This poses a critical question - should such individuals who are forced to provide assistance to terrorist organizations be excluded from obtaining refugee status? The question is particularly relevant under United States refugee law and this post will tackle it by examining a very recent United States Federal Court of Appeal decision from the 3^rd Circuit based in Philadelphia. 

II. Sesay v Attorney General of the United States [1]

a. Facts

Sesay is a citizen of the west African state of Sierra Leone. In the late 1990s and early 2000s, the country was gripped in a civil war. The Revolutionary United Front (RUF) was dedicated to overthrowing the government through the use of force and managed to occupy the capital of Freetown. In 2001, three members of the RUF entered Sesay’s family home in Freetown. They sought to conscript him. Although Sesay refused, he was nevertheless forcibly taken. 

Over the course of a month, Sesay consistently refused to join; he was beaten for his resistance. After a month, the RUF attempted to train him to use firearms but he once again refused. The RUF instead decided to force him to assist them by transporting and carrying weapons. He did so under compulsion and under the supervision of armed guards. On one occasion, Sesay was able to escape while the rebels were being threatened by an aerial attack. He fled to Guinea and subsequently to Gambia before escaping to the United States. 

b. The Immigration Judge's Decision and the Administrative Appeal

The Immigration Judge (IJ) found Sesay to be credible and concluded that he suffered past persecution as a result of his membership in a particular social group – specifically, individuals who vocally opposed forced conscription into the RUF. Where an individual has suffered past persecution, there is a rebuttable presumption that s/he has a well-founded fear of future persecution. The IJ concluded that the presumption in this case could be rebutted since, at the time the decision was being made, the RUF had been disbanded and reconciliation efforts in Sierra Leone had since been successful.

In the alternative (and this is where it becomes relevant for the present discussion), the IJ also concluded that Sesay provided material support to the RUF, and determined that it was a terrorist organization. This was based on the fact that Sesay carried food, water, weapons, and ammunition for the RUF. The IJ held that there was no exception to this exclusion even where the support was based on duress.

Sesay appealed this decision to the Board of Immigration Appeals (BIA). The BIA affirmed the IJ’s decision.    

c. The 3rd Circuit's Decision

The 3rd Circuit affirmed the decisions of the BIA and IJ. It concluded, based on previous 3^rd Circuit jurisprudence, and those of sister federal circuit courts of appeals (as persuasive authority) that the material support exclusion to obtaining refugee status applied in this case. Sesay had knowledge (a subjective standard) that his acts would provide material support or that he should have reasonably known (an objective standard) that his acts would provide material support for terrorist activities. The fact that he did not desire that the RUF succeed was irrelevant to this assessment. 

The Court accepted that Sesay provided this material support under duress. However, it was deciding for the first time (within in its jurisdiction) whether the fact of duress provided a sufficient exception to the material support exclusion. It concluded, based on its statutory analysis, that the presence of duress did not provide an exception to the material support exclusion. 

i. Text and Context

The Court first began with a textual analysis of the provisions in question. The relevant portions of the Immigration and Nationality Act (INA) render an individual inadmissible if they engage in terrorist activity 

in an individual capacity or as a member of an organization— to commit an act that the actor knows, or reasonably should know, affords material support [to a terrorist organization]... .[2] 

This provision is silent on whether duress provides an exception to the material support exclusion. However, the Sesay Court identified that there is an exception in the INA to the material support exclusion where "the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization."[3] Drawing from a 9th Circuit discussion on this very issue, the Sesay Court concluded that had Congress intended that compelled conduct should be an exception, it would have certainly included this in the INA. Furthermore, in other provisions of the INA, Congress has included “involuntariness” as criteria for exempting individuals for another exclusion.[4] The Court rationalized that because the exemption for compelled conduct was specifically employed elsewhere in the INA, Congress clearly intended not to insert an exception for compulsion in connection with the material support exclusion.[5]

ii. Executive Branch Waivers 

Through legislation, United States federal law permits the Secretaries of State and Homeland Security to confer certain waivers to those who provided material support to certain terrorist organizations. However, the ability to grant this waiver is within the purview of the executive branch and specific cabinet secretaries. 

In conclusion, the Court determined that based on statute, it was up to the executive to grant waivers and the Court must not intervene in such determinations on matters of national security.

iii.  Circuit Court Consensus 

The Third Circuit noted that there was some degree of consensus amongst sister circuits on the issue of a duress exception - with one exception. In Ay v Holder, the 2^nd Circuit determined that the statutory provisions in question (and referred to above) were silent on the issue of duress being an exception to the terrorism bar. The court stated that the "BIA's decision provides no analysis of the statutory question; rather, it appears to presume there is no duress exception."[6] As such, for the Ay Court it was possible for the BIA to interpret whether the provision in question excluded those who provided material support to terrorists by reason of compulsion. It remanded the case back to the BIA to “address the [statutory question] in the first instance in light of its own expertise.” As part of its own analysis, the 2nd Circuit neglected to address that Congress included an explicit exception (noted above) to the material support bar and consequently intended to exclude any exception for duress.

III. What is Problematic About All This?  

a. Overbreadth

First, let me start by stating that based on the text of the impugned provision and its relationship to other provisions, it was reasonable if not correct for the 3^rd Circuit to hold that the material support exclusion does not include a duress exception. 

The problem is not the Court's interpretation but the provision itself. The breadth of the provision is indeed breathtaking. It is arguably intended to result in such harsh consequences. Congress likely knew exactly what it was doing post-9/11 and this comprehensive exclusion is reflective of the siege mentality that took root after September 11, 2001. 

The comprehensive and harsh nature of the anti-terrorist provisions in the INA has been noted in several quarters. For instance, James C. Hathaway and Michelle Foster assert that "states have adopted definitions of terrorist acts in the context of refugee and related immigration law that are startlingly broad, a concern perhaps most strikingly exemplified by legislation adopted in the United States."[7]

An example will help demonstrate Hathaway's and Foster's point. The notion of "terrorist activity" in the INA does not account for the political aims or the targets of certain acts. Almost any violent act can get wrapped into the definition of terrorist activity regardless of context. In Re SK, an asylum seeker provided money and some supplies to the Chin National Front, an organization which employed armed resistance against the repressive military junta in Myanmar. Given the scope of the legislation, SK was barred from obtaining refugee status. Juan Osuna, the current head of the BIA, writing then as a Vice-Chair in concurrence of SK's exclusion, criticized the breadth of the exclusion for terrorist activities. He stated: 

[T]he statutory language is breathtaking in its scope. Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives.[8] 

With respect to the applicant in SK and the application of the material support bar, Osuna asserted:

In sum, what we have in this case is an individual who provided a relatively small amount of support to an organization that opposes one of the most repressive governments in the world, a government that is not recognized by the United States as legitimate and that has engaged in a brutal campaign against ethnic minorities. It is clear that [SK] poses no danger whatsoever to the national security of the United States. Indeed, by supporting the CNF in its resistance to the Burmese junta, it is arguable that the [SK] actually acted in a manner consistent with United States foreign policy. And yet we cannot ignore the clear language that Congress chose in the material support provisions; the statute that we are required to apply mandates that we find [SK] ineligible for asylum for having provided material support to a terrorist organization.[9] 

These passages provide the context for understanding why duress was left out as an exception to the material support bar for refugee status. The legislation was reactive and in large measure comprehensive in its seeming objectives - to exclude anyone who adopted or supported certain types of violence regardless of context or their reasons, however legitimate.  

b. Discourages Legitimate Resistance

The consequences can be potentially inhumane. A person who was compelled to commit unlawful acts will be excluded unless the executive branch elects to grant a waiver. In this case, we have an individual who resisted not only once but several times to actively join the organization and to use a weapon on its behalf. That he agreed to transport weapons, ammunition, food and water under the supervision of a guard speaks to the coerced nature of this assistance. He also left as soon as practicable. 

The decision not to include a duress exception sends a particular message to certain asylum seekers. It tells those who resist recruitment into terrorist (or similar) organizations, which commit international crimes, that unless they resist to the point of being killed, they will be refused refugee status if they manage to escape. As the late international jurist and legal scholar Antonio Cassese asserted in a dissenting opinion in the Erdemovic appeal before the International Criminal Tribunal for the former Yugoslavia, "[l]aw is based on what society can reasonably expect of its members. It should not set intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards."[10] 

c. Inconsistent With The Human Rights Purpose of the Refugee Convention and Protocol

This lack of an exception is inconsistent with the overall human rights and humanitarian purpose of the 1951 Refugee Convention and/or the 1967 Protocol amending the Convention. Furthermore, the lack of an exception may be more punitive than a regular prison sentence for having committed the same crime. The consequences in these circumstances (refusal of refugee status) involve deportation and possibly persecution.

Endnotes

1. Sesay v Attorney General of the United States, --- F (3d) ----, 2015 WL 3372539 (3rd Cir 2015), online: <http://www2.ca3.uscourts.gov/opinarch/142996p.pdf>.

2. 8 USC § 1182(a)(3)(B)(iv)(VI), online: <https://www.law.cornell.edu/uscode/text/8/1182>. 

3. 8 USC § 1182(a)(3)(B)(iv)(VI)(dd).

4. 8 USC § 1182(a)(3)(D). 

5. The reference to involuntariness as being synonymous to duress or compulsion may not be accurate. Involuntary conduct under traditional criminal law purposes serves as a complete defence to a crime. In the case of duress, such compulsion normally does not indicate the lack of voluntariness or for that matter the necessary mental state for the offence. However, it has been recognized (under Canadian law) that where there is the presence of duress, this may indicate a moral involuntariness. See R v Ryan, 2013 SCC 3 at para 23, [2013] 1 SCR 14.  

6. Ay v Holder, 743 F (3d) 317 at 320, online: <http://www.ca2.uscourts.gov/decisions/isysquery/947fad22-e8ab-4464-9001-5ee703743be4/28/doc/11-2102_opn.pdf>.   

7. James C Hathaway & Michelle Foster, The Law of Refugee Status, 2nd ed (Cambridge: Cambridge University Press, 2014) at 560. See also Geoff Gilbert, "Running Scared Since 9/11: Refugees, UNHCR and the Purposive Approach to Treaty Interpretation" in James C Simeon, ed, Critical Issues in International Refugee Law (New York: Cambridge University Press, 2010). In a forthcoming article in the Canadian Journal of Human Rights, I criticize this and similar legislation in other countries for implementing legislative provisions which were unnecessary and certainly overly broad.

8. In Re SK, 23 I&N Dec 936 at 948 (BIA 2006), online: <http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3534.pdf>.

9. Ibid at 950. 

10. Prosecutor v Erdemovic (Pilica Farm Case), IT-96-22, Separate and Dissenting Opinion of Judge Cassese (7 October 1997) at para 47, online: <http://www.icty.org/x/cases/erdemovic/acjug/en/erd-adojcas971007e.pdf>. 

The Passing of a great Canadian Refugee Law Scholar - Nicole LaViolette

It is with sadness that we have learned of the passing of Professor Nicole LaViolette of the University of Ottawa Law Faculty. 

Professor LaViolette was a prolific scholar whose work covered numerous areas of law. Amongst her various accomplishments was a sustained and profound scholarship concerning refugee law and the protection of sexual minorities.

Her work may be found at: https://uottawa.academia.edu/NicoleLaViolette  

We wish to offer our heartfelt condolences to her partner, family, friends and colleagues. 

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.

Excluding Atonement: The Supreme Court of Canada and Serious Non-Political Crimes

The 1951 Convention Relating to the Status of Refugees was created to provide protection to those fleeing their country of nationality or place of last habitual residence and who are unwilling or unable to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.[1] However, its protections are not without limitations. Amongst them is Article 1F(b) of the Convention which states that the "provisions of the Convention shall not apply to any person with respect to whom there are serious reasons to consider that [...] he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee."[2]

An important question that arises is whether an individual who has committed a "serious non-political crime" prior to their admission into the country of refuge can avoid exclusion if he or she has already been prosecuted and served time for the offence. If such persons are not fugitives from justice, should the exclusion clause apply? The questions were resolved by the Supreme Court of Canada in yesterday's decision, Febles v Canada (Citizenship and Immigration).[3] The Court concluded after examining the text of Article 1F(b), its context, and the overall object and purpose of the Convention that the provision is aimed at not only excluding fugitives escaping prosecution for having committed serious non-political crimes. It also pertained to those who have committed such crimes at all regardless of whether they have already been found criminally responsible, punished and have been rehabilitated.

Justice Abella, writing in dissent (with Justice Cromwell concurring) articulated that special attention needed to be paid toward the overall purpose of the Convention which was to protect human rights and advance certain humanitarian aims. Furthermore, an examination of the legislative history of Article 1F(b) suggested to the dissenting justices that the exclusion mandated under this provision was intended for those who were fleeing prosecution, but not to those who have already been punished and have served time. She observed:

In my view, depending on the seriousness of the crime, if an individual is believed to have committed a serious non-political crime, the purpose of Article 1F(b) can be met where the individual’s circumstances reflect a sufficient degree of rehabilitation or expiation that the claimant ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the passage of time since the commission of the offence, the age at which the crime was committed, and the individual’s rehabilitative conduct, will all be relevant. On the other hand, individuals who have committed such serious crimes that they must be considered undeserving of the status of being a refugee would be excluded.[4]

While this perspective has not achieved broad consensus amongst courts or tribunals in all other jurisdictions, Justice Abella correctly posits that this position is supported by recent jurisprudence from England and Belgium, as well as the positions of the United Nations High Commissioner for Refugees.[5]

Assuming for the moment that the Court majority's position in Febles represents the correct legal interpretation, it perhaps signals the need for revisiting and revising the terms of Article 1F via a new international protocol.[6] The current language unjustly excludes individuals who may nevertheless warrant asylum (particularly where substantial mitigating circumstances may exist). Although, exclusion proceedings are technically not criminal proceedings, the impact of an adverse finding can be more severe than imprisonment - this is especially so where there is a well-founded fear of persecution for a Convention ground. In a typical criminal proceeding, if a person is found guilty of a crime, a court will usually weigh aggravating and mitigating circumstances to arrive at a proper punishment. 

With respect to an Article 1F(b) analysis, once it has been determined that an individual has committed a serious non-political crime (or any other crime identified under Article 1F), there is no analogous process to weigh the consequences of exclusion against any mitigating factors militating against this result. Some factors to consider in weighing for or against the exclusion, once it is found that there are serious grounds to consider that an individual has committed a serious non-political crime(s), should include the following: (a) the fact that a claimant would otherwise qualify as a refugee; (b) the fact of rehabilitation and having served time for the offences; (c) the relative seriousness of the crime; and (d) any other relevant circumstances surrounding the crime (including those articulated by Justice Abella). 

Not surprisingly, if a claimant would not even qualify as a refugee, any other factors would be moot in such an analysis. However, at present, many adjudicators do not even bother to make any assessment of whether claimants would otherwise qualify for refugee status once they have determined that a person is excluded. The existence of mitigating factors by itself should of course not have to mean that exclusion would be inappropriate either. Some crimes and/or the aggravating factors surrounding a serious non-political crime or set of crimes may very well militate against the granting of refugee status as Justice Abella indicated.[7]

Not surprisingly, the likelihood of seeing such a new international protocol come to fruition is not especially promising. We exist in an environment that is not particularly sympathetic to refugees and/or asylum-seekers. Added to this, those who would otherwise qualify for refugee status but have committed a serious non-political crime are deemed automatically unworthy regardless of circumstances and the existence of mitigating factors. They are viewed as criminals - period. In addition, a new protocol mandating the consideration and weighing of various factors for exclusion (including whether a claimant otherwise qualifies for refugee status) would require more work for States and particularly their administrative bodies and courts. Weighed against the humanitarian concerns underlying the Convention, they may not be compelling reasons to all, but they nevertheless exist.

Notwithstanding the factors that would militate against its creation, such a protocol would nevertheless work toward balancing the humanitarian objectives of the Convention with other considerations that could still favour exclusion in the appropriate circumstances. Ultimately, a more nuanced approach to these issues would be desirable.  

Notes

[1] Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

[2] Ibid, art 1F(b). 

[3] Febles v Canada (Citizenship and Immigration), 2014 SCC 68. 

[4] Ibid at para 132.

[5] Ibid at para 133

[6] I am of course fully aware that many aspects of the Refugee Convention should be revisited (including from the point of view of what is not in the Convention at present), but for the purpose of this post, I shall focus on this particular issue.    

[7] I have developed similar arguments with respect to Article 1F(a) in a chapter in my doctoral thesis, which I have since revised for publication.