Should immigrants be punished for the lies other people tell?
Newcomers face serious penalties for misrepresentations that occur without their knowledge
What should happen when a person misrepresents facts on an immigration application?
That issue came under more intense scrutiny recently when it was revealed that Democratic Institutions Minister Maryam Monsef wrongly said she was born in Afghanistan, including providing that information on her passport application, because her mother never told her she was born at a hospital across the border in Iran.
Canadian law says Monsef's citizenship can be stripped away because of a misrepresentation made by someone else without her knowledge. While this is ludicrous, Monsef's case is not an isolated one. The whole affair should lead the government to change the law on how it deals with immigrants who are found to have made misrepresentations on their applications.
Most Canadians would agree that a person should not be punished for something another person does without their knowledge. In virtually every other area of the law, victims are protected, not punished. However, in immigration law, a person can suffer serious, life-altering penalties for misrepresentations that occur without their knowledge, including refusals of visas to be with family in Canada, five-year bans from travelling to Canada and, in some cases, deportation.
While the government should change its laws for people who are found to have unwittingly made misrepresentations, what should be done about people who knowingly lie? Such a lie could allow a person who is a security risk to come into Canada.
Screening gap
How can putting down a different birthplace on an application be a security risk? While Monsef is not a security risk for not knowing where she was born, someone who knowingly conceals their place of birth could cause Canadian officials to bypass background checks in that country in the mistaken belief that the applicant never lived there — a serious gap in our security and criminal screening procedures.
So should Monsef's mother be deported from Canada for not disclosing she lived in Iran? The answer to this question is "no," since it appears the misrepresentation did not result in any lasting or serious negative consequences for Canada. However, under immigration law, it is not the end result that determines whether a person can be punished for a misrepresentation. A person can be punished in these circumstances even if it is proven later that the misrepresentation was inconsequential.
If Monsef and her mother should not be removed from Canada because of that misrepresentation, why does the government pursue misrepresentation investigations against individuals in similar situations? Is it because these individuals are neither cabinet ministers nor the parents of cabinet ministers? Monsef's case should prompt the government to change how it penalizes individuals for misrepresentations.
The first thing the government should do is distinguish between misrepresentations made without a person's knowledge, deliberate misrepresentations that are inconsequential and deliberate misrepresentations done to intentionally defraud the system. Individuals who do not know a misrepresentation has been made should not be penalized. Individuals who deliberately lie to defraud the system should face stiffer penalties than those who make deliberate but inconsequential misrepresentations.
Love and marriage
The second thing the government should do is change the law that permanently splits up families for lying about their marital status before coming to Canada. Under the law, individuals who misrepresent their marital status before coming to Canada are permanently barred from sponsoring their spouses for immigration to Canada. In many cases, this effectively means a spouse can never immigrate, even if the couple is in a long-term, loving relationship with children.
When the government introduced this permanent bar, it did so because of individuals who lied about their marital status to avoid immigration complications. However, by creating a permanent bar from sponsorship, the government went too far.
Instead of permanently preventing spouses from reuniting because of a misrepresentation, a person should only be barred from sponsoring a spouse for five years if it was done deliberately to defraud the system. This would bring the penalty in line with the current law for non-spouses who make misrepresentations.
While individuals who make unknowing or inconsequential misrepresentations should face lighter penalties or no penalties at all, there is a cost to government to investigate these allegations. As a result, it is only fair to require individuals to pay the government's costs for these investigations and to put the onus of proving their case on them. The cost of these investigations should not be borne by the taxpayer.
Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.