The Russian spies who raised us

For fans of the series “The Americans,” spy stories in general, and citizenship policy wonks, this long read of the Vavilov brothers, their parents and the citizenship case is fascinating:

Nine hundred kilometres away, at a townhouse near Boston, two other “Foleys” were deep in their own state of shock: the Canadian-born sons of the fake Tracey Foley and her fellow-spy husband, Donald Heathfield, whose bogus ID was also stolen from a dead Montreal infant. Alexander Foley was 16 when the story hit, and his older brother, Timothy, had just turned 20. They could do nothing but watch as FBI agents burst in and handcuffed their parents. As Tim later recounted in a sworn affidavit: “I was shocked in ways words cannot describe.”

Up until that moment, the brothers insist, they had no idea their mother and father were undercover Russian “illegals” deployed by the KGB in the late 1980s, first to Canada, then to America—or that their parents’ real names were Elena Vavilova and Andrey Bezrukov. The sons had no clue, in other words, that their surname since birth was a fraud, swiped from a dead baby girl and passed on to them.

If the details read like an episode of The Americans, the Emmy-nominated FX television show, there’s good reason: the series, about a Soviet spy couple and the secrets they hide from their U.S.-born children, was inspired by the same FBI bust that exposed Tim and Alex’s mom and dad. But here is the true-life subplot you won’t see on TV: a years-long court battle over whether the kids should have to pay for their parents’ crimes with their Canadian citizenship.

Although both brothers were born in Toronto, immigration officials concluded (after the spy ring was revealed) that the boys were never Canadian to begin with because their mother and father were “employees of a foreign government,” making the kids ineligible for status under the Citizenship Act. In June, however, the Federal Court of Appeal ruled otherwise, ordering Ottawa to reinstate Alex’s citizenship (his case is furthest along) and propelling the bizarre saga back into the headlines. “[T]he sins of parents ought not to be visited upon children without clear authorization by law,” the judgment reads.

What happens next is in the hands of the Trudeau government, which has until Sept. 20 to decide whether to pursue an appeal at the Supreme Court. A spokeswoman for the federal immigration department would only say that officials are “carefully reviewing” the June ruling.

Like all the great espionage thrillers, there is one more twist: CSIS, Canada’s spy agency, has told Immigration that Tim, the eldest brother, did indeed know the truth about his parents’ double lives—and that he pledged to follow in their footsteps. According to CSIS, Tim had been “sworn in” by the SVR, the KGB’s post-Soviet successor, by the time the FBI showed up. (Tim adamantly denies the allegation, saying in his affidavit that “no evidence of my involvement has ever been presented.”)

…Though now the stuff of headlines, the brothers’ legal fight began quietly, when both tried to renew their Canadian passports. Because their surname (Foley) was now a confirmed fraud, Ottawa told them they would need to update their birth certificates. They complied, taking a version of their mother’s real last name: Vavilov. But when Tim and Alex reapplied for passports, they instead received letters from the registrar of citizenship, informing them they were no longer Canadian in the eyes of the law.

Technically, the feds did not revoke their citizenship. In Ottawa’s opinion, they were never citizens to begin with because each parent was working as a “representative or employee in Canada of a foreign government,” a rare exception to the birthright rule under section 3(2)(a) of the Citizenship Act.

Who fits that definition of “representative or employee” is the central issue of the brothers’ court challenges. Ottawa contends that the phrase means exactly what it says: any representative or employee of a foreign government, period. Tim and Alex argue that the clause is extremely specific and applies only to foreigners who enjoy diplomatic immunity—which their parents clearly did not, having operated deep in the shadows.

In 2015, a Federal Court judge agreed with the government’s plain reading of the law, ruling, in Alex’s case, that “the wording is clearly meant to cover individuals who are in Canada as agents of a foreign government, whatever their mandate.” In June, however, the Federal Court of Appeal reached the opposite conclusion: that only those with diplomatic immunity fall under the “employee of a foreign government” exception. Under that narrow interpretation, the court ruled in its 2-1 decision, Alex is clearly a citizen. Any other conclusion is “not supportable, defensible or acceptable,” the judgment reads.

As the Trudeau Liberals ponder one last appeal to the Supreme Court (again, the government has until Sept. 20 to seek leave), the stakes extend well beyond a granular point of law. Between the lines of all the legal briefs is a much larger debate being waged in the court of public opinion: who deserves citizenship—and who doesn’t? As the case plays out, after all, this same government is poised to restore citizenship to Zakaria Amara, a convicted, foreign-born terrorist who plotted to kill hundreds of fellow Canadians. For Amara to retain status while two Toronto-born brothers with no criminal records are denied it would present a striking, if not absurd, contrast.

Ottawa must consider something else, too: that one brother may not have been as oblivious as the other. Although it was Alex who won his case, the judgment, if left standing, would surely apply to Tim—who, according to CSIS, knew about his parents’ covert activities and had been “sworn in” by the SVR prior to their arrests. What CSIS revealed to immigration bureaucrats appears to be the first official confirmation of a bombshell Wall Street Journal report published in 2012, which claimed that Tim had agreed to return to his parents’ homeland to begin formal espionage training. During one conversation with his parents, the article claimed, the eldest son “stood up and saluted ‘Mother Russia.’ ”

As damning as the allegation may be, it has no real bearing on the specific issue at hand: the definition of “employee of a foreign government.” In other words, if the latest ruling is not overturned, the feds will have little choice but to recognize Tim’s citizenship and, like his little brother, let him come home—regardless of the suspicion swirling over his head. (If Canadian authorities then choose to launch a criminal investigation, that’s a whole different story. Either way, though, a Canadian citizen cannot be expelled.)

Which raises yet another question for Ottawa to ponder: should the government attempt to appeal Alex’s ruling solely because it would present the best possible chance of keeping Tim out of the country?

Source: The Russian spies who raised us