By Sukhram Ramkissoon
Last week the Federal Court ruled portions of the policy and manual that require citizenship candidates to remove face coverings to be observed taking the oath are unlawful.
Specifically, reference to “those wearing a full or partial face covering, now is the time to remove it” was ruled unlawful. The court ordered the minister of citizenship and immigration to pay the applicant $2,500 costs.
Zunera, the applicant, is a Pakistani national and devout Sunni Muslim. Whenever she is in public, she says, her religious beliefs obligate her to wear a niqab, a veil that covers most of her face.
She also says she will unveil herself to a stranger only if it is absolutely necessary to prove her identity or for the purposes of security, and even then only privately in front of other women.
She came to Canada in 2008 and her application for citizenship was approved by a citizenship judge in December 2013. However, she was not a citizen under the Citizenship Act until she took the oath of citizenship.
Prior to this ceremony, she took her citizenship test and at that stage removed her niqab for purposes of identification. She was then scheduled for a ceremony to take the oath of citizenship in January 2014.
She agreed with the content of the oath but objected to the manner in which she was compelled to take it. She was refused citizenship.
She then filed for judicial review with the Federal Court.
She argued, amongst other things, that she objects to the requirement to remove her niqab at the citizenship ceremony since the ceremony is public and removing her veil is unnecessary for the purpose of identity or security. Further, she argued the government policy regarding veils at citizenships oath ceremonies is a personal attack on her, her identity as a Muslim woman and her religious beliefs.
The minister argued that requiring the applicant to uncover her face is not a serious limitation on her religious freedom as she did so before for identity and security purposes. Wearing a niqab, he said, is a personal choice, not a basic sacrament. Further, the government argued, citizenship is a privilege, not a right, and if is she opposed to baring her face, she should accept the consequences of not becoming a citizen. She would still retain all benefits of permanent residence.
In the ruling, a judge of the Federal Court said it agreed with the applicant that “it is the candidate’s signature beneath the written oath or affirmation of citizenship form, rather than a visual confirmation of the candidate saying the oath, and that is the only proof needed that a candidate has sworn or affirmed the oath of citizenship that is required under the act.”
The regulations require a candidate take the oath “by swearing or solemnly affirming before a citizenship judge.” It does not require that there be visual confirmation that the oath was said aloud.
This was confirmed by the testimony of the minister’s representative, the judge stated.
The judge added that “indeed, as noted above, any requirement that a candidate actually be seen taking the oath would make it impossible not just for a niqab wearing woman to obtain citizenship but also for a mute person or a silent monk.”
The court allowed the application for judicial review because, to the extent the policy interferes with a citizenship judge’s duty to allow candidates for citizenship the greatest possible freedom in the religious solemnization or the solemn affirmation of the oath, it is unlawful.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.