How Miguna’s case will impact immigration

The immigration case of lawyer Miguna Miguna has attracted a great deal of interest and legal curiosity that call for a proper perspective. Miguna claims to be a Kenyan and a Canadian citizen: the one by ministerial compassion and the other by birth. For the record, he was born in Kenya of Kenyan parentage.

What has not been clarified is how he acquired Canadian citizenship. Since he was not a ‘natural’ candidate for Canadian citizenship, he must have applied under some law that then allowed foreigners to do so.

The Federal Government of Canada has designated the following documents as proof of Canadian citizenship: a birth certificate issued by a provincial or territorial government, certificate of naturalisation (issued only to British subjects before January 1, 1947), certificate of retention (only issued between January 1, 1947 and April 16, 2009), certificate of citizenship (including citizenship cards) and certificate of registration of birth abroad (only issued between January 1, 1947 and February 14, 1977). It is self-evident that in the case of Miguna only a certificate of citizenship would be available as proof of citizenship.

UNUSUAL HARDSHIP

How would a foreigner acquire such a document? Subsection 5(4) of the Canadian Citizenship Act gives the minister the power to grant citizenship on compassionate grounds to individuals who are ‘subject to “special and unusual hardship” or have ‘rendered services “of an exceptional value to Canada,” or are stateless. Such persons do not need to fulfill any of the other requirements.

But they must, along with the others, take the Oath of Citizenship and be given ‘a paper citizenship certificate as the legal proof of Canadian citizenship.’

Prior to February 2012, applicants would receive a wallet-size Citizenship Card and a paper Commemorative Certificate, but only the citizenship card served as the conclusive proof of Canadian citizenship.

The question to ask is which of the three circumstances applied to Miguna? He was not ‘stateless’ before getting Canadian citizenship. Was he subject to special and unusual hardship? His website, migunamiguna.com states that he was ‘admitted to the Ontario Bar as a Barrister and Solicitor in February 1995.’ Since he acquired Canadian citizenship in 1998, I do not view that achievement as subjecting him to special and unusual hardship.

Did he render services of an exceptional value to Canada? What kind of services would qualify as such? Anyway, that appears to be the window that could have landed him Canadian citizenship. That means Miguna voluntarily lost his Kenyan citizenship under the Independence Constitution which did not recognise or support dual citizenship.

That was not peculiar to Miguna. Between 1947 and 1977, several Canadian citizens had involuntarily lost their citizenship under the 1947 Act, mostly by acquiring the nationality or citizenship of other countries.

On April 17, 2009, Canada restored lost citizenships en masse. These people, as well as their descendants, became de jureCanadians with multiple citizenships, even when they did not exercise citizenship rights, such as travelling on a Canadian passport.

Although not a legal requirement, Canadian ‘nationals with multiple citizenships’ are required to carry a Canadian passport when boarding their flights to Canada since November 2016 unless they are dual Canadian-American citizens carrying a valid United States passport. Miguna exercised his Canadian citizenship by using his Canadian passport while travelling abroad.

Between January 1, 1947 and February 14, 1977, multiple citizenship was only allowed under limited circumstances. On February 15, 1977, the restrictions on multiple citizenship disappeared overnight. That means that at the time Miguna secured Canadian citizenship, Canada allowed dual citizenship. Therefore, under Canadian law, he was not required to denounce his Kenyan citizenship.

However, at the time, Kenyan law did not support dual citizenship. Kenyan law outlawed it. So, although Miguna did not renounce his Kenyan citizenship, he lost it by operation of the law.

The 2010 Constitution restored the said Kenyan citizenship under one condition, that is, upon application. Miguna has refused to apply. He remains a Canadian citizen and eligible to regain his ‘lost by operation of law’ Kenyan citizenship if he applies.

In 2006, around 863,000 Canadian citizens residing in Canada reported in a census to hold at least one more citizenship or nationality of another country.

The en masse citizenship grant and restoration in 2009 and 2015 further increased the number of Canadians with multiple citizenship, as Canadian citizenship was restored or granted to most of the people who had lost their Canadian citizenship.

A Canadian citizen has the right to consular services when abroad. That is why the application documents were delivered to Miguna in the presence of the Consular Officer of the Canadian High Commission to Kenya, Ms Fiona Jarvis. Miguna inadvisedly tore them and was denied entry.

The 2010 Constitution Article 14, Section 5 states, “A person who is a Kenyan citizen by birth and who, on the effective date, has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled ON APPLICATION to regain Kenyan citizenship.”

In 2005 there were 22,475 Canadian citizens of Kenyan origin or 1 per cent of the population in Canada. There, certainly, are other Kenyans who acquired other citizenships over the years.

These and their CHILDREN born in Canada and elsewhere are watching the Miguna saga closely. If he is allowed into Kenya without due process, they will also claim the same treatment if and when they return to Kenya, citing the precedent set in the Miguna case.

Kenyan-Canadians were No.5 from Africa after Egypt 40,575, Morocco 39,055, South Africa 38,305 and Algeria 32,255. Nigeria had 14,705, Tanzania- 19,765, Somalia- 19,515 Ethiopia- 19,715. Out of a population of 25 million there were 3million from UK, China, India, Philippines, Italy, US, Hong Kong, Germany, Poland, Vietnam and Portugal.