Monday, 2 November 2015

REVOCATION OF CITIZENSHIP:  Is it legally just?                              

The Man Without a Country is a short story written by American writer Edward Everett Hale. It was first published in The Atlantic in December 1863. It is the story of American Army lieutenant Philip Nolan, who renounces his country during a trial for treason and is consequently sentenced to spend the rest of his days at sea without so much as a word of news about the United States.

When I saw the movie by the same name, I wondered if that would ever happen in real life. I am not wondering any more. It is happening.

Citizenship acquired by birth in Australia can be lost only by a person voluntarily taking out citizenship in another country. That means that in Australia, such an Australian citizen can’t be a dual citizen with another country.  

However, if a citizen from another country goes to Australia and becomes a naturalized citizen in Australia, his or her citizenship in Australia can be revoked by the government only if that person commits a heinous crime or acts of treason or acts of terrorism. Australia had possessed an unrestricted power to revoke naturalisation for a few years after the Naturalization Act was amended in 1917, until the Nationality Act 1920 qualified that power by specifying disloyalty, serious criminal offences and fraudulent application as grounds for de-naturalisation. Only during the two world wars were substantial numbers of people de-naturalised: nearly 150 naturalisation certificates were cancelled in 1918 and 1919 as a preface to the deportation of many people of enemy origin (most had been internees), and more were stripped of their naturalisation during the Second World War. It appears that during peacetime no more than half a dozen people were de-naturalised each year, usually to allow the deportation of people convicted of serious criminal offences. Accordingly, citizenship acquired through naturalisation retained a provisional quality since it could be revoked until 1958 when the Nationality and Citizenship Act was amended so that naturalisation could only be revoked if it had been obtained by fraud.

The Australian Citizenship Act prevents a Minister from revoking a person’s citizenship if he or she is unable to become a national or citizen of another country, and in such a case, the Minister cannot cancel the person’s citizenship status.

This of course can place Australia in a legal quagmire if the country that the Australian naturalized citizen is being sent back to is a country racked in civil war or overridden with terrorists or even if he never learned the language of that country since he left it with his parents when he was a small baby and he has no family in that country.  Further, suppose that country executes convicted terrorists no matter where the terrorist act was committed. Would Australia want to send that person to his death?

But suppose he committed a terrorist act in Australia that was serious and he has served his time in prison and the government doesn’t wish to return him to the country of his birth for the reasons stated in the previous paragraph. Would the government be forced to let that former terrorist roam the streets of Australia knowing that he still has a hatred for its citizens? The quagmire just gets deeper and deeper.

Revoking a person’s citizenship is a serious undertaking and the action can only be carried out under limited circumstances and those circumstances can  be really limited.

One of the more interesting aspects of the Act can be found in section 35(1)(b) and section 35(2), which states; that a person ceases to be an Australian citizen if that person chooses to serve in the military of another nation that is engaged in armed conflict with Australia.This would include anyone who joins a terrorist organization that is fighting against any Australian soldier fighting the terrorist organization that person has joined. This could apply to an Australian citizen who was born in Australia because fighting against Australia’s interests is treason.                                                  

In the United Kingdom, both the Home Office and the Home Secretary have the power to revoke British Citizenship under the 2006 Immigration, Asylum and Nationality Act.      

Increasing numbers of British nationalized citizens are being stripped of their citizenship under Home Office powers introduced in the wake of the 2005 terrorist London bombings in which 52 people died and more than 700 were injured. Five of the dual nationals deprived of their citizenship were British Pakistanis, while two were of dual British and Sudanese nationality. The remaining six were Australian, Iraqi, Russian, Egyptian and Lebanese dual nationals. At least one of those who had lost his British citizenship is understood to have been born in the UK, while others are thought to have lived in Britain since infancy. The Australian who lost his British dual nationality is David Hicks, who spent more than five years as a prisoner at Guantánamo Bay after being detained in northern Afghanistan after the 9/11 attacks. The Russian is Anna Chapman, the spy deported with nine others from the US last year. She acquired British nationality through marriage before travelling to the US to join a network of sleeper agents.

Most people in the UK are aware that serious criminal convictions and/or involvement with terrorist organizations can lead to the revocation of the citizenship of nationalized dual citizens. Britain has also been revoking the citizenship of its nationalized citizens who participate in the Syrian civil war. The Home Secretary Theresa May has revoked the citizenship at least 37 Britons since May 2010. 

Mahdi Hashi, 23, was given a British passport after he was brought to Britain from Somalia with his family nearly 20 years ago. US prosecutors said Mahdi Hashi had been flown to New York by the FBI and charged with providing material support to al-Qaeda-linked militant group al-Shabab. He was eligible for the revocation of his nationalized UK citizenship.

The Home Secretary is limited to using the right to revoke citizenship on individuals with dual nationalities. For example, she cannot make an individual “stateless.”  If the country that the nationalize citizen was born in refuses to accept the person who is eligible for deportation, then that person becomes stateless.

United States revocation of citizenship is possible for a naturalized U.S. citizen to have his or her citizenship stripped through a process called “denaturalization.” Former citizens who are denaturalized are subject to deportation from the United States. Natural-born U.S. citizens may not have their citizenship revoked against their will, but may choose to renounce their citizenship on their own. 

Citizenship in the United States may be revoked if the U.S. government can prove that a nationalized person joined a subversive organization within five years of becoming a naturalized citizen. Membership in such organizations is considered a violation of the oath of U.S. allegiance. Examples include the Nazi Party and Al Qaeda.  I think this means that if they joined one of those illegal organizations after five years has passed, they can’t be deported. That doesn’t make any sense to me.

A naturalized U.S. citizen by virtue of serving in the U.S. military, can have his citizenship revoked if he is dishonorably discharged before serving five years in the armed services. Reasons for dishonorable discharge which must follow a general court-martial conviction is for desertion and sexual assault and other serious offences.  

Denaturalization, in which a naturalized citizen is stripped of his or her citizenship, is a process that occurs in federal court (typically in the district court where the defendant last resided) and follows the standard rules of federal civil court cases. As such, it is not an immigration case even though it affects the immigration status of the nationalized citizen.

Children granted citizenship based on their parent's status may also lose their citizenship after that parent has been denaturalized. I see problems with his aspect of the law which I will deal with when writing about revocation of citizenship in Canada further in this article.

The U.S. government has a high bar for proving a defendant meets the criteria for denaturalization which is a heavier burden of proof than most civil cases, but not as great a burden as criminal cases.

In Canada, the Strengthening Canadian Citizenship Act (SCCA) introduces new grounds for revocation of citizenship and provides for a streamlined revocation process. Previously, the citizenship revocation process generally involved three steps: the Minister, the Federal Court, and the Governor in Council. (the federal  cabinet) Under the new revocation process, the Governor in Council will no longer have a role except for some transitional cases.

The new process has two decision-making streams with the vast majority of revocation cases being decided by the Minister whereas certain complex cases will be decided by the Federal Court. The new process came into effect on May 28, 2015.

Citizenship may be revoked if a nationalized citizen is convicted of terrorism, high treason, or spying offences, depending on the sentence received; or served as a member of an armed force of a country or as a member of an organized armed group and that country or group was engaged in armed conflict with Canada.

I see problems with respect to revoking the citizenship of some nationalized citizens in Canada. Here is an example to consider.

 The sons of two Russian “deep cover” spies are fighting to keep the Canadian citizenship they acquired while their parents were living in Toronto under assumed identities and secretly working for Russian intelligence. One of the sons is 21 and the other is 25. Alexander and Timothy Vavilov are the children of Elena Vavilova and Andrey Bezrukov, Russian operatives who were sent to Canada to develop backgrounds that would mask their spying activities in the United States. Both boys were born in Canada,

The parents stole the identities of Tracey Foley and Donald Heathfield, two Canadians who had died as infants. The couple maintained the fiction for two decades until they were arrested in 2010 and sent back to Russia in a spy swap.

The brothers also returned to Russia at the time but are now claiming they are Canadians, and they have taken the government to court to be recognized as such, arguing that since they were born in Toronto, Canada they have a right to citizenship.

The younger brother wrote in his affidavit that his Canadian heritage was “an important part of who I am” and that he introduced himself as a Canadian. “It is the only culture I can associate with, and has been a cornerstone of my identity.” But he has not lived in Canada since the age of one, when his parents, having established their Canadian legends, moved to France and then Boston, where they became naturalized American citizens under their fake Canadian identities.

It is conceivable that both brothers can have their American citizenships revoked since their parents obtained them under false pretenses.

When the parents were in Canada, neither of them applied for permanent residency since their real intention was to go to the United States.

Now here is the real problem with respect to one of the two brothers. Alexander was born in Canada. That makes him Canadian citizen. In 1913, the Canadian government sent Alexander (at his request) a Canadian certificate of Canadian citizenship. However, in 2014, the Canadian citizenships of both brothers were revoked. The government sent them a letter telling them that although they were born to two representatives of a foreign (Russian) government and as such, they were not eligible for Canadian citizenship.  

This raises an interesting question. Why did the government send Alexander a certificate of Canadian citizenship the year before? The answer is that he was born in Canada and as such, he is a Canadian citizen. 

Both young men swore that they were not groomed by their parents to act as spies and there is no proof that they were or that they acted as spies for Russia. This raises the question; is it just to revoke their Canadian citizenship?  They have not committed any crime, spied on Canada or the United States, advocated terrorism or committed acts of terrorism. We must never forget that adage that children cannot be punished for the sins of their fathers.

Bill C 24 states that revocation of citizenship can only be done to people who have dual citizenships and are eligible to be sent back to the other country they are a citizen of. This wouldn’t apply to Alexander but it would apply to his 25-year-old brother who was born in Russia.

However, we must keep in mind that Deepan Budlaokoti was born in Canada to Indian diplomatic staff and committed heinous crimes when he was older and his citizenship was revoked and he was returned to India. 

Alexander hasn’t committed any crimes so it begs the question; can he be sent back to Russia” That is a question that has to be dealt with in his pending appeal in a federal court. I will update this article when I learn more as what has happened to these two brothers. 

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