2017/03/02 Leave a comment
Summary: Senate committee hearings on Bill C-6 finished March 1 with the last set of witnesses, including Minister Hussen and officials, with the clause-by-clause review taking place this morning. The Minister was challenged particularly on the lack of procedural protections in the cases of revocation for fraud or misrepresentation. While he stated his general willingness to consider improvements, the overall tenor of his responses and those of his officials was to defend the current process. Conservative senators questioned the rational for the elimination of knowledge and language assessment for 55-64 year olds, probed the protections of the current revocation process for misrepresentation and expressed their disagreement with the repeal of revocation in cases of treason or terror. Senator Eggleton, just as he had during C-24, expressed his concern over the impact of the increase in citizenship fees, with the Minister and officials defending the increase and arguing it did not cause the decline.
The clause-by-clause review this morning may see a number of observations (greater flexibility for those applicants who have difficulty in knowledge or language assessment, the impact of citizenship fees). An amendment to improve procedural protections is expected to be introduced at third reading.
Robert Watt, a former Vancouver-based citizenship judge 2009-15 focussed his remarks on his experience in reviewing thousands of applications. While the majority clearly demonstrated the desire to stay and contribute, a basic competence in language and understanding of Canada, a small number had a more instrumental interest in having a Canadian passport and the benefits of medicare and tax credits, or being “citizens of convenience. He believed strongly that the intent to reside should remain given the clear signal it sends that a new citizen should centre her of his life in Canada; that the current residency requirements of four to six years should not be reduced and the need for the department to have “robust audit procedures” to check the validity of third-party language assessment.
Lorne Waldman of CARL, and Josh Patterson of BCCLA spoke on to restore procedural protections for revocation in cases of fraud and misrepresentation, either reverting to the previous access to the Federal Court or some other procedure that involved the right to a hearing, the right to disclosure, an independent decision-maker and reversion to permanent residence status rather than foreign national.moan independent
Revocation for fraud or misrepresentation and procedural protections: Most of the time was taken up by this issue, with questions and witnesses noting the contrast between the solid procedural protections for permanent residency misrepresentation and refugee determination and the limited protections for citizenship misrepresentation. Patterson and Waldman repeatedly noted the dubious constitutionality of the provision. In terms of which option was preferred, they noted their preference for an expansion of the IRB to handle such cases, given their experience and expertise. However, as there was no reference to a possible IRB role, that was beyond the scope of what could be considered and thus some variant of a process providing an oral hearing before the Federal Court was provided. There was relatively low risk of cases being appealed beyond the Federal Court level. A number of examples were cited highlighting the limitations of the C-24 approach.
Smart Permanent Resident Cards to track entry and exit (raised by Julie Taub in last set of hearings): Watt noted that pending technological developments, applicants should present their travel documents to CBSA (but was unclear how that would work). Waldman noted that unlike the EU, Canada does not control on leaving the country. This would be a significant change and would be expensive to implement. While it would work for airports, it would not be practical for land crossings given the resulting delays.
Fees: Senator Eggleton continued to press on fees, noting the dramatic increase in fees and that applications had taken a “real nose dive,” noting the points made in my brief (https://sencanada.ca/content/sen/committee/421/SOCI/Briefs/C-6_A_Griffith_e.pdf). He noted that the press on full cost recovery did not take into account that those applying for citizenship were taxpayers too, and they would be contributing for many years. Waldman confirmed the impact on immigrants, that the costs to families, including external language assessment, was in the $1,000s and that the government had to look at costs as a barrier if Canada wants to encourage people to become part of the fabric of society. Watt noted the fee increases came near the end of his term but he had seen instances of individuals and families struggling even with the previous fees, and a “good case” can be made to balance accessibility and cost recovery.
Language proficiency and age requirement: Watt was probed further on what he meant by the need for a robust audit on whether or not language requirements were met. He responded by noting the wide range of organizations offering assessment services and that random audits were needed to ensure that the level had been attained. He noted that some applicants may lose proficiency in the period between getting assessed and becoming citizens (but also noted that the reverse could occur). Patterson noted there was no issue with respect to 14-17 year olds as they would learn in schools or the workforce. For 55-64 year olds, economic class immigrants already would have met language requirements, and the issue was with respect to family class, particularly parents and grandparents. He referred to Avvy Go’s earlier testimony regarding the barriers faced by low-income immigrants and refugees and believe a better approach was increased resources for language training.
Residency requirements: Watt was challenged whether one more year or less made a difference in terms of integration. He responded by noted the importance that the clarity that residency meant physical presence provided given previous Federal Court jurisprudence. He never saw any evidence from IRCC that an additional year would be burdensome and did not believe it was. Waldman confirmed the helpfulness of the physical residency definition but noted that the change to three out of five years was particularly helpful to refugees as they had no other citizenship. The restoring of part-time credit for time spent in Canada prior to becoming a Permanent Resident was also a welcome improvement.
Minister Hussen and officials
Minister Hussen opened by noting that the previous government’s changes had created barriers to citizenship. C-6 would repeal some of the changes and facilitate citizenship, and send a clear signal of Canadian inclusivity, fairness and diversity (“diversity is our strength”). C-6 was part of implementing the Speech from the Throne commitment to make it easier for immigrants to participate.
Repeal of the national interest revocation provision (terror treason) was to ensure that Canadians, whether single, dual or multiple nationality were treated equally and the government did not support treating people differently, noting the positions of organizations such as the CBA and CCR along with focus groups “much troubled” by this distinction. Those convicted of terrorism or treason will face the Canadian justice system and will “go to jail for a long time.” Revocation for fraud or misrepresentation was different.
Other measures in C-6 removed barriers. Repeal of the intent to reside provision would reassure citizens that they were not at risk of losing citizenship. Physical presence was maintained but citizenship could be attained one year earlier. Providing part-time credit for pre-permanent residency time provided greater flexibility for those such as international students who had “started building connections.” The return to the previous 18-54 age requirements for testing recognized that 14-17 year olds would meet these through the school system while easing the burden for55-64 year olds.
He also reiterated the government’s commitment to program integrity, noting the provision that would allow the government to seize fraudulent documents.
Revocation for fraud or misrepresentation and procedural protections: As in the previous session, the absence of procedural protections was the main focus. Minister was repeatedly challenged along the earlier testimony by legal experts, and was reminded that his predecessor had indicated he would welcome an amendment in this regard. The Minister repeatedly stated that he believed that the present process has safeguards and is sound, but he was open to proposals that would improve protections.
A number of questions served to clarify the steps in the process and the criteria used by officials to assess whether revocation was warranted. Factors included: age of applicant, extent of ties to Canada, whether they were primarily living in Canada or not, and the health of an individual. The process was completely delegated to officials.
Some questions concerned the assertions of CARL/BCCLA:
- no right to disclosure: unanswered by Minister unless I missed it
- no H&C consideration: Minister replied party can provide under personal considerations
- no right to counsel: Minister replied absolute right to counsel (in preparation of documents)
- no right to appeal: Minister said not correct (seek leave which is not the same thing)
Minister resorted at one point by noting that C-6 only dealt with some issues – dual national revocation and removing barriers – and that the appeal mechanism was “not central” to C-6. He was, however, “committed” to procedural fairness.
Officials confirmed that the majority of cases pertained to residency, with other cases related to identity or not disclosing criminality.
Revocation (terror or treason): Conservative senators challenged Minister on the rational to repeal the revocation provisions of C-24 and he reiterated the equal treatment arguments. He confirmed that the one person whose citizenship which had been revoked under the C-24 provision would have his citizenship reinstated.
Fees: Senator Eggleton raised the same questions as before. Minister replied that the drop was more attributable to the barriers contained within C-24, primarily the longer residency requirements. Fees were much lower than many countries, citing the USA and UK (comment: correct, but not mentioning Australia and NZ which are lower). Officials reiterated the direct correlation between the extended residency requirement, noting the sharp drop after June 2015 when the four-year minimum came into effect.
Comment: The one-year transition effect ended in June 2016. The final 2016 numbers, due out any day now, will confirm a sharp decline. The July-September numbers – the first quarter after this transition period – do show an increase (from 11,970 to 20,329) but one far short of the historical number of applications (about 200,000 per year or 50,000 per quarter). Hence fees matter!
Language proficiency and age requirement: In response to questions regarding the number of applicants 55-64, officials provided some useful data. 7.7 percent of all applicants were in this age category (not clear which year – I have a pending request for this data). Officials noted that the numbers of this age group had dropped from 15,243 last year to 2,317 (believe it referred to mid-year comparisons 2016 to 2015), with total applications of 67,000 (not clear which period she was referring to). Minister indicated his confidence in language assessment process.
Officials noted that applications were not accepted if the applicant had little or no language. Settlement programs provided language training and applications would be accepted following successful completion. Officials also noted the various steps to ensure the integrity of the citizenship test. On the citizenship study guide, officials confirmed that the current guide was written higher than CLB-4 (the formal requirement) and that it would be re-written to be more aligned to the requirement: not to “simplify but in clearer language.” Officials were also looking at including more language on Indigenous peoples, given TRC recommendation number 93.
Minister reiterated that it was important for 55-64 year olds to obtain citizenship, that it contributed further to their integration and they contributed to Canadian society (e.g., providing child care) and this restored what “has worked in Canada for more than 40 years.”
Integrity: In addition to points in opening remarks, Minister noted that the department had agreed with all recommendations in the OAG audit of the citizenship program, with all either acted or being acted upon.
Only media coverage I have seen is in the National Post (Immigration minister defends legislation that prevents convicted dual nationals from losing citizenship), largely unbalanced as it focuses mainly on the testimony of one witness, Julie Taub, and her critique of C-6)