Canada Citizenship-Stripping Law (Probably) Violates International Law

Canada Citizenship-Stripping Law (Probably) Violates International Law

Canada last week enacted a major amendment (Bill C-24) to its citizenship law. As a general matter it makes citizenship harder to get and easier to lose. Residency periods for naturalization are lengthened and physical presence requirements toughened up, English and civics tests will apply more broadly, and naturalization fees are tripled. This on top of the elimination of the “golden visa” program through which many (mostly Chinese) secured permanent residence through investment. These moves are all well within Canada’s sovereign discretion over its citizenship practices (whether they are good policy or not is another question – for an excellent critical analysis, see this from the Canadian Association of Refugee Lawyers).

But there are two provisions are at least problematic and may violate international human rights.

1. Naturalization applicants will now need demonstrate an intent to reside in Canada after naturalization. This is a response to the phenomenon of “naturalization as exit strategy” — one we are seeing in the U.S. as well. A growing number of long-term permanent residents are naturalizing only once they want to go back home to their countries of origin. With Canadian citizenship, they know they can freely travel back to Canada to visit friends and relatives, and perhaps also to take advantage of the social welfare net (remember: Canada has universal health care). Acquiring citizenship becomes a kind of insurance. This template for naturalization is the opposite of the traditional sequence, in which naturalization is the final act of commitment to the new community. The amendment means to end it.

Some fear that the new requirement will be used to de-naturalize anyone who moves abroad after naturalization (on the theory of fraudulent intent), and in any event the requirement is likely to have a chilling effect on those who would like to. It discriminates against naturalized citizens, since native-born Canadians are free to leave the country and keep their citizenship in the process. That’s in tension with an emerging norm under which naturalized and native born citizens should be equal before the law (see for example article 5(2) of the European Convention on Nationality).

Key to how this plays out: whether it is enforced (one can imagine not at all — in the way that the naturalized U.S. citizens are never held to the renunciation oath).

2. The government gets the power to strip individuals for convictions relating to treason, spying, or terrorism. Here Canada follows a British lead. But the Canadian measure may be the more problematic. The British law extends a very broad power to the Home Secretary to revoke citizenship where it is “seriously prejudicial to the vital interests of the United Kingdom.” That would seem worse than the Canadian approach, which at least requires a conviction. But because it requires a conviction, the Canadian measure is more clearly penal — expatriation is tied to the criminal activity. The result looks like banishment. The U.S. Supreme Court long ago found the penal use of expatriation to violate the constitution, in a 1958 decision (Trop v. Dulles) that drew extensively on international law norms prevailing even in the mid-twentieth century against the penal use of expatriation.

Moreover, this ground of revocation discriminates against dual citizens. The law does not apply where it would result in statelessness, so mono-nationals are insulated. This argument has had some traction against the UK measure, which until recently at least also discriminated against dual citizens. To the extent that maintenance of dual citizenship is framed as a human right, the new Canadian law burdens it.

Both elements are already being challenged in Canadian courts. It will be interesting to see whether international law enters into the constitutional equation. In any case forgive me for suffering just a touch of legal schadenfreude in seeing our usually internationally law-abiding northern neighbor push the envelope much harder than we are. This is one context in which the U.S. probably has it right in keeping expatriation out of the counterterror mix.

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A super minor point! I suspect it may be inaccurate to include access to universal health care as part of someone’s motivations for the “naturalization as exit strategy”. Health care in Canada is not for “Canadians”, it is for “Canadian Residents”. For example, I am a Canadian who resided in the U.S. for 1 year and did not have access to Canadian health care when I returned home every 8 weeks. (Yes, I was paying Canadian taxes for the year I spent living in the U.S.). Further, my understanding, is that only Canadian RESIDENTS can tap into the country’s wider social welfare net. This is just to say, things are never as rosy up North as we like our American neighbours to think.