Minority governments have introduced universal healthcare, ended capital punishment and created the Canada Pension Plan.
It is too early to gauge whether this minority government will cooperate to tackle issues related to citizenship and statelessness. All of the parties put forward platforms that proposed changes to the skilled worker program, family reunification and refugee protection. Only the Liberal party addressed citizenship with a plan to eliminate application fees, decreasing barriers to obtaining citizenship.
Despite the challenges a minority government brings to policy-making, now is the time for all parties to consider a visionary step in our citizenship law to lead the world in tackling the issue of statelessness.
Stateless persons have no citizenship to any country. They are among the most vulnerable and are subject to exploitation, abuse, indefinite detention and the inability to access housing, education, healthcare and legal protections. The United Nations High Commissioner for Refugees (UNHCR) estimates that there are more than 10 million stateless persons worldwide.
October 7, 2019 marked the midway point of the UNHCR’s 10-year #IBelong Campaign to End Statelessness. The UNHCR has invited states to highlight key achievements and make pledges for the next half of the campaign.
Canada did not make any pledges directly related to statelessness five years ago, and there is no indication that Canada will make any now. One may presume that statelessness is not an issue in Canada; that it a persistent problem in developing countries. This is not true.
Canada has a history with statelessness: children born of Canadian soldiers, called the “Lost Canadians;” Indigenous persons moving within their traditional territories; persons born abroad to Canadian parents; and migrants within Canada who came stateless or became stateless while they were in Canada, some of whom are in long-term detention.
There are also Canadians whose citizenship may be revoked or whose citizenship is contested. These cases are canaries in the mine because it may mean, even if we have genuine and enduring links to Canada, our citizenship may not be available or as permanent as we think.
Canada can boast a few achievements. There is now an application process under the Citizenship Act by which a person can ask the minister “to alleviate cases of statelessness.” But one has to show “special and unusual hardship” or “services of an exceptional value to Canada” for which citizenship is the reward. It is not clear which circumstances would fit these criteria.
Canada will consider statelessness in permanent residence applications on humanitarian and compassionate grounds, giving some stateless persons relief.
These measures are piecemeal and not enough.
For both applications, stateless persons must rely on the discretion of the minister as decisions are not ones of rights, as in the case of a refugee who needs protection. Not all stateless persons may be eligible for these application processes as well, due to complicated time bars and eligibility requirements. Further, there isn’t a coordinated approach permeating our entire legal system. For example, such an approach would contemplate how stateless persons should be treated in detention.
We recently conducted a preliminary study of approximately 450 publicly reported legal decisions over a 20-year period between 1999 and 2019 in Canada to identify who are stateless people in Canada and to see how they have interacted with the Canadian legal system. Forty per cent of all cases involved refugee claims, meaning a significant number of stateless persons thought the refugee system was their best chance. Of these cases, 87 per cent were denied refugee protection.
When stateless persons appealed within the Immigration and Refugee Board, 57 per cent of appeals were dismissed. Of cases that were judicially reviewed at the Federal Court, 62 per cent of judicial reviews were dismissed
These numbers are not surprising. We know that each case dealt with a person who had or has no citizenship whatsoever. This fact, on its own, does not merit protection in our current law.
Canada needs to think more systemically when it comes to its citizenship policy to respond to statelessness. We have a sophisticated immigration system that requires a vision that can assist some of the most vulnerable.
With a Liberal minority government, Canada is well-positioned to blaze a trail:
• We could pledge to sign the 1954 Convention relating to the Status of Stateless Persons and establish a protection system designed specifically for stateless persons.
• We could pledge to collect and publish data on who are stateless and how they are interacting with our administrative and legal systems.
• We could pledge to review and reform our laws through consultation with communities to ensure we have a coordinated approach to managing statelessness and preventing statelessness in future generations.
• We could also pledge to implement the United Nations Declaration on the Rights of Indigenous Persons, specifically the right for an Indigenous person to determine their own identity or membership in a way that does not impair the right to obtain citizenship in the states in which they live.
• We could prioritize the resettlement of stateless persons, such as persons fleeing the Rohingya genocide.
We invite all political parties and this minority government to take this list of concrete actions and make it their own.
By Jamie Liew and Silvia Esteves Domingues
Jamie Liew is a lawyer, an associate professor at the Faculty of Law, University of Ottawa and a member of the Migration Research Collective.
Silvia Esteves Domingues is a student at the Faculty of Law, University of Ottawa.