Ruling will prove key for citizenship-by-fraud cases

The previous government's changes to the Citizenship Act in 2014 were intended to make the citizenship revocation process far easier — but instead, they have resulted in a number of legal challenges to the new procedures on constitutional grounds, Toronto immigration lawyer Matthew Jeffery writes in Lawyers Weekly.

As Jeffery explains in the article, immigrants who obtained Canadian citizenship through the process of naturalization can lose their status as citizens “if it is later determined that they obtained that status through fraud, for example by falsifying the amount of time that they lived in Canada in order to meet the residency requirement to qualify for citizenship.”

One recent challenge to citizenship revocation notice is Hassouna v. Minister of Citizenship and Immigration, writes Jeffery, one of the counsel involved in the litigation. In the case, the revocation notice served on Abdulla Ahmad Hassouna alleges that he provided false information with respect to his residence during the four years immediately preceding his Canadian citizenship application. The case is currently scheduled to be heard by the Federal Court in November.

Hassouna, Jeffery writes, “is the lead file in a group of cases being brought forward by several counsel all challenging the legality of the citizenship revocation provisions of the Citizenship Act, as modified by the Strengthening Canadian Citizenship Act on June 19, 2014.”

Although the Trudeau government initially indicated that they intended to amend the bill upon being elected, Jeffery says “since coming to power they have in fact continued to issue notices of revocation and are fighting the Hassouna litigation.”

Under the previous version of the Citizenship Act, he explains, before the government could revoke a Canadian's citizenship for fraud, it would first have to issue a notice to the citizen, which the citizen could then refer to the Federal Court.

“The Federal Court case would proceed as an action, the purpose being for the court to determine if there were factual grounds sufficient to establish fraud. If the court found that there was fraud, the matter would be referred back to the government, which would prepare a report for final consideration by the Governor in Council. The Governor in Council (prime minister and cabinet) would then decide whether or not to revoke the citizenship, taking into consideration all the facts of the case.”

Through the new streamlined procedure introduced via the Strengthening Canadian Citizenship Act, the Citizenship Act was amended to remove the requirement for the Federal Court or the Governor in Council to consider the matter, says Jeffery, a sole practitioner.

“Under the now modified Citizenship Act, the government simply issues a notice to the citizen setting out its intention to revoke his or her citizenship for fraud, and sets out, in summary form, the facts it is relying on to show that there was fraud in the citizenship process. The citizen is then given 30 days to respond in writing, after which a delegate of the citizenship department will make a decision as to whether or not the citizenship should be revoked. A hearing will not be held in every case and only in cases that meet certain criteria, as decided by the citizenship authorities.”

After the introduction of the new revocation provisions, Jeffery says the government issued a flurry of citizenship revocation notices but a number of these were challenged in court. In January 2016, the Federal Court stayed the further processing of those revocation cases that had brought forward appeals pending its decision on the constitutionality of the provisions.

The dominant issue being advanced in the litigation, he explains, is whether the new citizenship revocation provisions are consistent with s. 7 of the Charter — the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

“There is little doubt that loss of Canadian citizenship impairs the s. 7 right to liberty and security of the person, and it is certainly arguable that the procedure adopted by the government is not in accordance with fundamental justice. In this regard, the principles of fundamental justice lie in the basic tenets of the Canadian justice system. They are not only procedural in nature although many of them are.

"In determining what procedural protections fundamental justice requires for something as important as potentially losing one’s citizenship, it may be argued that the revocation process should provide for: (1) an oral hearing in all cases; (2) a hearing before an impartial and independent decision-maker; (3) full disclosure of the evidence; and (4) the right to counsel throughout the process. The current revocation system set up by the Harper government provides for none of these, and as such there are serious arguments that it is unconstitutional and therefore ultra vires and illegal.”

Ultimately, he writes, the Federal Court’s decision in Hassouna will have important consequences for those who find themselves caught up in revocation proceedings.

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