Birthright Citizenship: A Case of a Solution Needing a Problem

September 2018

I consider myself to be a mild-mannered person. Living with teenagers has required learning the patience of Job. It is rare that I find myself hot under the collar about something.  But the issue of birthright citizenship is one that really sticks in my craw. 

All children born in Canada, even in Canadian airspace, are automatically granted citizenship. There is only one narrow exception, which is set out in our Citizenship Act:

(2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was

(a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government;

(b) an employee in the service of a person referred to in paragraph (a); or

(c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).

This section is about to be litigated in Canada’s Supreme Court, over children born in Canada to Russian spies.  This section is also the one which made Deepan Budlakoti stateless. 

Last month, the Conservative Party of Canada held a policy convention. The party narrowly adopted a resolution which stated:

We encourage the government to enact legislation which will fully eliminate birthright citizenship in Canada unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.

Given how many issues have already been created over the very limited exception to birthright citizenship for children born to diplomats, can you imagine the chaos that will ensue if the Conservative resolution becomes law? The regulatory implications are completely unworkable. 

The purported goal of the Conservative resolution is to eliminate birth tourism. This occurs when women travel to Canada for the sole purpose of giving birth, sometimes misrepresenting their intentions for travelling, and not always fully paying their hospital bills.  According to media reports, the goal of birth tourism is for the Canadian-born children to later be able to sponsor their parents, so that the family can live in Canada together. 

There seems to be a lack of knowledge over the limited quota for parental sponsorships, and the need for the sponsoring child to be able to show three years of Canadian income tax statements proving a solid middle-class income prior to applying. As a result, so far as birth tourism goes, Canada likely isn’t even a particularly good choice.  Abolishing birthright citizenship is a solution in need of a problem – there are only a few hundred babies born in Canada through birth tourism each year.   In addition, our immigration department specifically permits women to apply for visitor visas to come to Canada to give birth. 

In a series of tweets, uOttawa professor Jamie Liew explains that Canada is party to the 1961 Convention on the Reduction of Statelessness.  That document, in addition to a provision in the Convention on the Rights of the Child that provides a right to nationality, means that abolishing birthright citizenship would lead to Canada violating its international obligations.  It is true that an exemption could be worked into any legislative changes to ensure no child would be rendered stateless. However, why purposefully create a bureaucratic nightmare?  It is those who are most marginalized, including refugee claimants with little English and no resources, who will be disproportionately affected.

When the controversy broke out in the news last week, our associate lawyer Fanni Csaba took to twitter:

If this policy existed when my dad was born in Canada to my refugee grandmother, I wouldn't be Cdn. Canada could've dodged a bullet keeping out SUCH an unproductive member of Cdn society. But hey, I'm the right 'type' of citizen so I should know this isn't aimed at me, right?

A previous Conservative government abandoned plans to tackle the birth tourism ‘problem’.  The ‘solution’ would simply be too costly to enact.  Sensible, they were.  So why is this new crop of Conservative politicians bringing up the issue only four years later?   Surely it is a coincidence that this issue is also coming to the forefront in the USA.

There is an alternative to this issue. Abolish national borders.  One planet, one people.  Not having countries means not needing citizenship in one. 

If this is too radical for you, then just leave things be. Stop playing politics with babies’ lives.

Predicting Express Entry Scores is an Inexact Science

August 2018

In my November 2016 newsletter I made a prediction of what the Express Entry minimum comprehensive ranking system (CRS) score would drop to in 2017.  I based my forecast on the 2017 immigration levels plan and the composition of the Express Entry pool of applicants based on the 2015 Express Entry Year-End Report, which at the time was the most recent source of data available.

My prediction was 370 points. Boy, was I ever wrong.

To date, the lowest CRS score for which invitations to apply have been granted has been 413 points. In 2018, the lowest score to date (for non-program specific draws) has been 440 points. 

So why was my prediction so off?

There are two reasons. As I pointed out in that newsletter, there had recently been changes to the how CRS points are allocated.  The number of points awarded for having an arranged offer of employment dropped significantly, and additional points were added for having a sibling in Canada, as well as for having studied in Canada.  The impact of these changes were summarized in the following government report: Express Entry: Early Observations on November 2016 Improvements.

The other reason is that the Express Entry application management system is now over three years old. As word has gotten out about the program, more people have joined the pool of applicants.  The government now publishes data about who is in the pool on a regular basis.  Currently there are around 87,000 individuals in the Express Entry pool.  The 2018 immigration levels plan hopes that 74,900 individuals will come to Canada through Express Entry, either as principal applicants or as their spouses and dependent children. There are simply not enough spaces for everyone.

In contrast, the 2015 report I used for my predictions had only 60,000 people in the pool, with 13,537 applicants in the 400-449 score range.  The most recent data has 28,830 in that score range. 

Minimum scores for being invited to apply for permanent residency have gone up because more people have joined the pool and the average scores of the individuals in the pool are higher.

So, what will scores drop to in 2018? If the number of profiles drawn at any one time increases, this will lead to a reduction in the minimum score.  Early 2018 draws were for 2,750 individuals.  Lately, draws have been for 3,750 individuals.  IRCC is slightly behind in its number of invitations from this time last year.  To meet their targets for 2018, they may have to reach further into the pool before the year is up.

However, in 2018 we have seen a remarkable stability in the scores, with a variation of not more than 16 points for non-program specific draws. It is unlikely the score will drop much below 440, if at all.  Currently, there are 8,379 individuals in the 431-441 range.  I expect many, if not most of these individuals, will be disappointed. 

What does that mean for those interested in immigrating to Canada? Without Canadian work experience, Canadian post-secondary schooling, arranged employment, a provincial nomination, or a Canadian sibling, many will have difficulty reaching the 440 points band. Here are some scenarios:

Scenario #1 – Single individual under the age of 29 with a bachelor’s degree, three years of foreign work experience, and IELTS 7 in writing, reading, and speaking, with 8 in listening (equivalent to Canadian language benchmark level 9).

Age – 100 points

Education – 120 points

Language – 124 points

Skill transferability points for language scores, education, and foreign work experience – 75

Total: 429 points.  This likely won’t be enough.

 

Scenario #2 – Same as above, but with a master’s degree.

Total: 469 points (education jumps to 135 points and skill transferability points to 100)

 

Scenario #3 – Same as above, with a master’s degree, but age 34.

Total: 436 points (age drops to 77 points)

 

The reality is that without Canadian connections, only the youngest, best educated individuals will be selected to immigrate to Canada. This is why the number of people applying to study in Canada keeps rising – adding Canadian education and work experience gained through a post-graduate work permit is the ticket for many to the Canadian dream.

Immigration, Refugees and Citizenship Canada is Creeping You: How Your Social Media Use Can Affect Your Immigration Application

July 2018

Creeping

Following what is going on in someone's life by watching their status messages on Instant Messengers such as MSN, and their updates to their social networking profiles on websites like Facebook or MySpace.

 

Have you applied for temporary or permanent residence status in Canada? You should know that there is a very good chance that IRCC will be looking at your social media profile.  Do you profess to have worked for a certain company?  Your LinkedIn profile can confirm or contradict that claim. It can also substantiate whether you worked there for the dates you indicated in your application.  Any discrepancies can affect the reliability of your application. 

Social media use also plays an important role in evaluating whether a marriage is genuine. Individuals who wish to sponsor a spouse to Canada can provide social media information showing a public relationship to fulfill one of the two documentary requirements for proof of their relationship.  Spouses not living together at the time of the application are permitted to provide up to 10 pages of social media conversations, to provide proof of contact between them.

In Tang v. Canada (Citizenship and Immigration), 2009 CanLII 90286 (CA IRB), the Immigration Appeal Division had to deal with a case where IRCC was suspicious when chat logs dates seemed inconsistent with information given by the couple concerning the timing of their engagement:

[21]           Eventually the subject of marriage is raised.  Now it is here that the respondent expressed concern over the apparent inconsistency between the stated date of the proposal and the chat log record that would seem to establish a different date.  According to the testimony of the appellant and applicant the subject of marriage came up in the course of their playing an on-line game on April 26, 2006.  According to the appellant, the applicant took her to a nice place in the game and started to buy her many nice "virtual” things.  It was here that they both insist the applicant proposed.

In this case, the Immigration Appeal Board reversed the decision of the immigration officer who had originally denied the sponsorship application, commenting that:

[33]      Finally, the panel has read most of the chat logs.  Conspicuously absent from them is any overt reference to immigration to Canada.  The couple do not dwell on their situation but rather are focused on day-to-day things and the trivial issues of life.  The panel finds no immigration motive.

If you are applying to renew your permanent resident card, or apply for citizenship, this is another opportunity for immigration officers to verify information given to them against your online profile.

In Shahein v. Canada (Citizenship and Immigration) 2015 FC 987, the Federal Court of Canada upheld the dismissal of an application for citizenship where there were questions about whether the physical presence requirement had been met.  Information declared on the application was inconsistent with the applicant’s LinkedIn profile:

[7]               Dr. Shahein’s “LinkedIn” profile states that he was a Pediatric Intern at Nationwide Children’s Hospital in Columbus, Ohio from February of 2013 to May of 2014. This was inconsistent with Dr. Shahein’s statement to the Citizenship Judge that he only began working at the hospital in July of 2013.

The Immigration and Refugee Board also uses social media research. In 2012 the Immigration and Refugee Protection Division introduced Chairperson’s Instructions for Gathering and Disclosing Information for Refugee Protection Division Proceedings. 

Here are two examples of how Facebook posts were used to discredit refugee claimants:

[15]           The Minister’s representative asked the RPD to reject the refugee protection claim because of the claimant’s contradictory statements regarding the identity of members of her family. More specifically, he submits that the information appearing on her Facebook page and on the Facebook page of someone named XXXX XXXX, presented in the BOC Form as the claimant’s brother, raises serious doubts as to the truth of her statements in the BOC Form regarding the fact that she would have to submit to a forced marriage if she were to return to the DRC.

X (Re), 2016 CanLII 104453 (CA IRB)

[37]           The Appellant alleged that she received many threatening messages from her ex-husband on her Facebook account under the name XXXX XXXX. She testified at her hearing that she deleted the messages and then deleted the account two weeks before the April 8, 2015 sitting of her hearing. She also testified that she had not used this account since leaving the Czech Republic in 2014. The Appellant indicated that she has been using a new Facebook account under the alias, XXXX XXXX XXXX, to avoid detection by her ex-husband. However, the research documents revealed that immediately after the April 8, 2015 sitting, the Facebook account of XXXX XXXX existed, when the Appellant alleges she deleted it two weeks prior to April 8, 2015. The research documents also revealed that the Appellant had posted a number of photographs of herself from September 2014 to January 2015, including photographs with her boyfriend. The research documents revealed that the Facebook account of XXXX XXXX no longer existed on April 13, 2015, suggesting that the Appellant cancelled the account after her April 8, 2015 sitting.

X (Re), 2015 CanLII 108263 (CA IRB)

Social media has become a big part of our lives. It is no surprise that Canadian immigration officials would use it to verify the information provided by applicants.  You would be well advised to check yourself online before submitting your application, to ensure that your information online is consistent.  Presume that you will be ‘creeped’!

How many immigrants does Canada need?

March 2018

I am a ‘basketball mom’. Less familiar than ‘soccer mom’, this phrase describes a person who spends most of her free time ferrying children to basketball practices and driving to tournaments hours away from home.  A high tolerance for whistle blowing is required for the role.

Why I’m Not Worried My Job Will be Taken Over by a Robot

February 2018

A recent article entitled, ‘Is artificial intelligence the future of immigration in Canada?’ describes an upcoming computer program that will be the ‘best artificially and emotionally intelligent virtual immigration advisor in Canada’.  It will work as an ‘AI-based chatbot’, which will help immigration applicants complete the required forms.  It promises to slash the costs associated with coming to Canada.