The following story was published by the Times of India:
Now, rent-a-wedding route to Canada
8 Jun 2008, 0214 hrs IST,Neelam Raaj,TNN
NEW DELHI: Kabootar-baazi has been the time-tested way of getting to Canada. Now, some hopefuls have discovered a cheaper and less risky option.
Not Malta or Turkey, this route goes via the altar. A phoney wedding to a Canadian has become the easiest way of acquiring a resident visa.
In this rent-a-wedding route to immigration, the finery, garlands, guests and even the spouse are all conveniently arranged by an unscrupulous consultant who is hand-in-glove with a local temple.
What tipped off Canadian visa officials in Delhi were photographs of different weddings submitted as evidence for sponsoring overseas brides and grooms to Canada all with the same guests.
Further investigation led them to the conclusion that marriage-for-convenience syndicates were at work. "At a price, you can get packaged services with a wedding ceremony where people stand in as guests and relatives, posing for photos as in a real marriage," says Canadian immigration lawyer Richard Kurland, who obtained an internal government report through an access-to-information request.
What makes the rent-a-wedding option so attractive is that under the current immigration system, an Indian can go to Canada within six months of marrying a Canadian.
What’s more, unlike countries like Australia where it is mandatory for a newly arrived spouse to spend at least two years with his or her partner to be eligible for permanent residency, Canada grants this status on arrival.
This has led to the phenomenon of sham marriages. "Cases have come to light in which Canadian nationals have agreed
to sponsor Indian spouses for monetary gain around 10,000-12,000 Canadian dollars. The couple then lives apart and
get divorced within one year," says Ramesh Maharaj, vice-president of a group called Canadians Against Immigration Fraud.
A risk analyst for a Toronto bank, Maharaj says he is a victim of another kind of sham marriage in which a foreigner ties the knot and then jilts the Canadian spouse. Recently, a woman from the South Asian community was on her way to Toronto’s Pearson airport to meet her Indian groom when she got a call on her cellphone. "Don’t bother waiting for me," he told her. "I’ve just landed in Vancouver and I’m staying here."
In an email response, Citizenship and Immigration Canada (CIC) said it was concerned about marriages of convenience and had been investigating such cases. Visa officials were also being trained in better interview techniques so that they could determine whether a couple genuinely wants a life together.
"Marriages of convenience have become a huge problem in Canada and in as many as 80% of the cases, Indians are involved," says Maharaj, whose wife left him soon after he sponsored her entry into Canada from India. What's worse for jilted Canadian nationals is that in order to sponsor their immigrant spouses, they have to agree to financially support them for three years.
If the newcomer draws on social assistance even if they have run out on their spouse the Canadian sponsor is still on the hook to pay that money back to the government.
"Unwitting Canadian sponsors invest not only their hearts but thousands of dollars in paperwork, long-distance phone calls and airfare," points out Maharaj, who fought a long battle to get his wife to Canada not knowing she would abandon him.
But it isn't just Indians who do the jilting, the wed-and-fled route has been taken by some Canadians as well. There have been many instances of Indo-Canadians travelling to Punjab to marry for dowry and then leaving their brides behind.
Sunday, June 8, 2008
Thursday, June 5, 2008
CANADA: MAYOR OF BORDER CITY TRIES TO DISCOURAGE ILLEGALS
Illegal immigrants warned
Francis tells border jumpers not to consider Canada a soft touch
Steven Edwards
Canwest News Service
Tuesday, June 03, 2008
NEW YORK - Windsor Mayor Eddie Francis said Monday Ottawa needs to begin a massive publicity campaign across the United States to warn illegal immigrants they should think twice about seeing Canada as a soft touch.
Speaking after telling an immigration conference in New York of the crisis Windsor suffered last fall -- when hundreds of Mexicans fleeing an illegal immigration crackdown in Florida crossed through the tunnel and made refugee claims -- Francis said undocumented people need to know that heading for Canada may not be in their best long-term interest.
"It should be made clear that, yes, they may be allowed entry into Canada, and yes, there may be a delay before your case is heard, but once your case is heard, the likelihood of success is very slim," Francis said at the Center on Media, Crime and Justice at John Jay College.
"And they should also be told not to relocate your families because you may be sent back."
Starting in August, Mexican illegal immigrants began crossing from the United States into Windsor by the hundreds, followed by Haitians -- many originating in Naples, Fla., where some say they paid a local operator $500 for an information and transportation package that would supposedly result in their receiving refugee status in Canada.
Under Canadian law, Windsor and Ontario were obliged to offer shelter and welfare funds to applicants while cases made their way through the process.
PEOPLE DEPORTED
But the majority of such cases are rejected -- and the people are deported back to their home countries.
The success rate for Mexicans is about 13 per cent, although the rate for Haitians is higher. More than 550 have come to Windsor, though the numbers have slowed considerably since the first two months.
"In Naples we were reactive in terms of the federal government of Canada," Francis said of a publicity campaign the government launched in Florida to warn locals of the likely outcome unless they were bona fide refugees.
"The government at the federal level now has to be proactive in terms of communicating, and getting out ahead of the curve in other parts of the United States."
The necessity of an immediate campaign, Francis said, stems from the observation of several conference speakers that state and city authorities in the U.S. are expected to become increasingly involved in turning in illegal immigrants in the absence of comprehensive federal reform to deal with an estimated 12 million undocumented people. As the threat they will be discovered increases, people search for a way out.
"That's what triggered the Naples (exodus)," Francis said.
He acknowledged the campaign might be costly -- but financing it was "better than having to provide social services and health care" to increasing numbers of people.
"We have our consulates, we have our local agencies, we have the network there to get the message across," he added of Canada's reach into the United States.
Francis also said the federal government should work to speed up the refugee application process -- which can currently take up to two years to complete. Doing so would reduce the window during which applicants who are eventually unsuccessful can live in Canada.
©
Francis tells border jumpers not to consider Canada a soft touch
Steven Edwards
Canwest News Service
Tuesday, June 03, 2008
NEW YORK - Windsor Mayor Eddie Francis said Monday Ottawa needs to begin a massive publicity campaign across the United States to warn illegal immigrants they should think twice about seeing Canada as a soft touch.
Speaking after telling an immigration conference in New York of the crisis Windsor suffered last fall -- when hundreds of Mexicans fleeing an illegal immigration crackdown in Florida crossed through the tunnel and made refugee claims -- Francis said undocumented people need to know that heading for Canada may not be in their best long-term interest.
"It should be made clear that, yes, they may be allowed entry into Canada, and yes, there may be a delay before your case is heard, but once your case is heard, the likelihood of success is very slim," Francis said at the Center on Media, Crime and Justice at John Jay College.
"And they should also be told not to relocate your families because you may be sent back."
Starting in August, Mexican illegal immigrants began crossing from the United States into Windsor by the hundreds, followed by Haitians -- many originating in Naples, Fla., where some say they paid a local operator $500 for an information and transportation package that would supposedly result in their receiving refugee status in Canada.
Under Canadian law, Windsor and Ontario were obliged to offer shelter and welfare funds to applicants while cases made their way through the process.
PEOPLE DEPORTED
But the majority of such cases are rejected -- and the people are deported back to their home countries.
The success rate for Mexicans is about 13 per cent, although the rate for Haitians is higher. More than 550 have come to Windsor, though the numbers have slowed considerably since the first two months.
"In Naples we were reactive in terms of the federal government of Canada," Francis said of a publicity campaign the government launched in Florida to warn locals of the likely outcome unless they were bona fide refugees.
"The government at the federal level now has to be proactive in terms of communicating, and getting out ahead of the curve in other parts of the United States."
The necessity of an immediate campaign, Francis said, stems from the observation of several conference speakers that state and city authorities in the U.S. are expected to become increasingly involved in turning in illegal immigrants in the absence of comprehensive federal reform to deal with an estimated 12 million undocumented people. As the threat they will be discovered increases, people search for a way out.
"That's what triggered the Naples (exodus)," Francis said.
He acknowledged the campaign might be costly -- but financing it was "better than having to provide social services and health care" to increasing numbers of people.
"We have our consulates, we have our local agencies, we have the network there to get the message across," he added of Canada's reach into the United States.
Francis also said the federal government should work to speed up the refugee application process -- which can currently take up to two years to complete. Doing so would reduce the window during which applicants who are eventually unsuccessful can live in Canada.
©
Sunday, June 1, 2008
CANADA: AUDIT FINDS CARELESSNESS AT CBSA
Canada border documents missing: audit
DEAN BEEBY
Canadian Press
June 1, 2008 at 2:36 PM EDT
OTTAWA — Thousands of blank forms used to issue work permits and other valuable documents for visitors to Canada are going missing because border officers are sloppy about security, says a new audit.
Security for the forms, which are highly coveted on the black market, has been mismanaged by poorly trained staff at the Canada Border Services Agency, investigators found.
At least 44,000 of the blanks disappeared from just one office, and although most of those have been recovered 2,000 remain unaccounted for.
The audit report notes that the forms are especially valued by criminals because they can be used as identification to rip off welfare and health programs, or to secure other official documents.
“The risk associated with the forms may not only be fraudulent use to gain entry to Canada, but also the ability to access secondary services offered by the country,” says the internal report.
Not only are the forms disappearing, but top officials at the agency have been kept in the dark about the problems.
“The reporting of immigration controlled forms that were unaccounted for and of other security incidents related to them was not always performed properly,” the agency's auditors warned.
“Senior management had not always been properly informed of security incidents.”
The blank forms are used to create work permits, study permits and temporary resident permits for qualified immigrants at major customs points, such as the airports in Toronto and Vancouver, and the land crossing at Douglas, B.C.
Each coloured form features a unique serial number, the Canada logo and Canadian coat of arms, along with embedded security markings similar to those on a passport. They're required to be kept under lock and key at each location.
The agency declined to provide examples to The Canadian Press for security reasons, although images of the forms are readily available on the Internet.
Almost 285,000 completed forms were issued at immigration points in 2006-2007 by border officers, who took over the job from Citizenship and Immigration more than four years ago.
But the transfer of that responsibility came without proper training, policies or procedures — which has meant hundreds of blank forms remain awol.
After visiting eight border points from British Columbia to Quebec, the auditors found that four stations did not properly document whether they had shredded unused forms. The offices “cannot confirm if the forms . . . were destroyed in the appropriate manner or were actually destroyed.”
Paperwork was incomplete or missing in many offices. Security procedures were lax at almost all locations. And the Canada Border Services Agency had not even appointed a senior official to ensure that policies were up to date and being followed everywhere.
A spokesman said the agency is still looking for the 2,000 missing blanks.
“The CBSA takes the accountability of controlled forms very seriously and will make every effort to locate these forms as quickly as possible,” Derek Mellon said in an e-mail.
Mr. Mellon said the office where the forms went missing, which he did not identify, had been undergoing renovations at the time of the disappearance.
“The CBSA has initiated a review of the current procedures surrounding the recording of the controlled forms and will continue the investigation until all the forms are accounted for.”
Mr. Mellon also said the agency is improving training, has appointed a senior official to oversee forms security, and by October this year will have a monitoring system in place to ensure staff across the country are following the rules.
Applicants seeking work permits must pay a $150 fee; study permit applications cost $125.
DEAN BEEBY
Canadian Press
June 1, 2008 at 2:36 PM EDT
OTTAWA — Thousands of blank forms used to issue work permits and other valuable documents for visitors to Canada are going missing because border officers are sloppy about security, says a new audit.
Security for the forms, which are highly coveted on the black market, has been mismanaged by poorly trained staff at the Canada Border Services Agency, investigators found.
At least 44,000 of the blanks disappeared from just one office, and although most of those have been recovered 2,000 remain unaccounted for.
The audit report notes that the forms are especially valued by criminals because they can be used as identification to rip off welfare and health programs, or to secure other official documents.
“The risk associated with the forms may not only be fraudulent use to gain entry to Canada, but also the ability to access secondary services offered by the country,” says the internal report.
Not only are the forms disappearing, but top officials at the agency have been kept in the dark about the problems.
“The reporting of immigration controlled forms that were unaccounted for and of other security incidents related to them was not always performed properly,” the agency's auditors warned.
“Senior management had not always been properly informed of security incidents.”
The blank forms are used to create work permits, study permits and temporary resident permits for qualified immigrants at major customs points, such as the airports in Toronto and Vancouver, and the land crossing at Douglas, B.C.
Each coloured form features a unique serial number, the Canada logo and Canadian coat of arms, along with embedded security markings similar to those on a passport. They're required to be kept under lock and key at each location.
The agency declined to provide examples to The Canadian Press for security reasons, although images of the forms are readily available on the Internet.
Almost 285,000 completed forms were issued at immigration points in 2006-2007 by border officers, who took over the job from Citizenship and Immigration more than four years ago.
But the transfer of that responsibility came without proper training, policies or procedures — which has meant hundreds of blank forms remain awol.
After visiting eight border points from British Columbia to Quebec, the auditors found that four stations did not properly document whether they had shredded unused forms. The offices “cannot confirm if the forms . . . were destroyed in the appropriate manner or were actually destroyed.”
Paperwork was incomplete or missing in many offices. Security procedures were lax at almost all locations. And the Canada Border Services Agency had not even appointed a senior official to ensure that policies were up to date and being followed everywhere.
A spokesman said the agency is still looking for the 2,000 missing blanks.
“The CBSA takes the accountability of controlled forms very seriously and will make every effort to locate these forms as quickly as possible,” Derek Mellon said in an e-mail.
Mr. Mellon said the office where the forms went missing, which he did not identify, had been undergoing renovations at the time of the disappearance.
“The CBSA has initiated a review of the current procedures surrounding the recording of the controlled forms and will continue the investigation until all the forms are accounted for.”
Mr. Mellon also said the agency is improving training, has appointed a senior official to oversee forms security, and by October this year will have a monitoring system in place to ensure staff across the country are following the rules.
Applicants seeking work permits must pay a $150 fee; study permit applications cost $125.
Monday, May 12, 2008
CHINESE GOVERNMENT CONFIRMS EXTENT OF NEW VISA POLICIES, OVERSEAS INTERNS AFFECTED
Andrew Lillis
Lehman, Lee & Xu
andrew@lehmanlaw.com
Silent until this week on the extent of visa changes that have left hundreds of thousands of foreigners living in China scrambling, the Chinese Foreign Ministry spokesman, Qin Gang officially confirmed that China had made changes to its policy to “Safeguard national Security”.
China has been the target of three events in the past 8 weeks which have given officials cause for alarm and which have largely escaped international media attention; the attempted hijacking of a China Southern Airlines aircraft in the Western region of Xinjiang, the hijacking of a bus in the central Chinese city of Xi’an in which two of the hijackers were shot dead and a suspected act of arson on a bus during rush hour in Shanghai in which three passengers died. Add to this the Olympic torch protests and the recent protests in Tibet it is not difficult to see why China would want to tighten visa restrictions in order to better examine who is entering the country in the run up to the Olympic Games; a traditional target for terrorist attacks. This is especially the case with the head of Interpol, Ronald Noble, stating in April that a terrorist attack at the Beijing Olympics was a “real possibility”.
"We have made some arrangements according to the practice of the past Olympics and usual international practice. That is, in the approval process we are more strict and more serious with the procedure," Foreign Ministry spokesman Qin Gang said. These new restrictions include establishing real time checks at China’s entry ports of travel documents against a database of some fourteen million lost and stolen passports.
What this translates to on the ground in China from an immigration point of view is new restrictions on foreigners – a significant proportion of foreigners resident in China will leave by July 1st due to their inability to extend their current status. The only possibility for many foreigners currently is to apply for a residence permit linked to a working visa; the requirements for which have got stricter in recent months; the legitimacy of the company involved is scrutinized and matters such as years of operation, registered capital and genuine need for foreign workers are examined. This is largely to prevent bogus enterprises from issuing work permits.
One group for which this has a major impact are those students pursuing internships in China – many multinationals have long established Summer intern programs which now must be curtailed because the traditional visa used for those on internships, the “F” visa, is now issued for non-extendable periods of 30 days and all applications must be accompanied by roundtrip tickets and hotel bookings for each night of the proposed stay. Previously the validity period was up to two years with no requirement for either air tickets or hotel bookings.
With the Olympic Games less than three months away we can expect to see further tightening of visa regulations, particularly from July 1st when the official “Olympic Period” begins.
Lehman, Lee & Xu
andrew@lehmanlaw.com
Silent until this week on the extent of visa changes that have left hundreds of thousands of foreigners living in China scrambling, the Chinese Foreign Ministry spokesman, Qin Gang officially confirmed that China had made changes to its policy to “Safeguard national Security”.
China has been the target of three events in the past 8 weeks which have given officials cause for alarm and which have largely escaped international media attention; the attempted hijacking of a China Southern Airlines aircraft in the Western region of Xinjiang, the hijacking of a bus in the central Chinese city of Xi’an in which two of the hijackers were shot dead and a suspected act of arson on a bus during rush hour in Shanghai in which three passengers died. Add to this the Olympic torch protests and the recent protests in Tibet it is not difficult to see why China would want to tighten visa restrictions in order to better examine who is entering the country in the run up to the Olympic Games; a traditional target for terrorist attacks. This is especially the case with the head of Interpol, Ronald Noble, stating in April that a terrorist attack at the Beijing Olympics was a “real possibility”.
"We have made some arrangements according to the practice of the past Olympics and usual international practice. That is, in the approval process we are more strict and more serious with the procedure," Foreign Ministry spokesman Qin Gang said. These new restrictions include establishing real time checks at China’s entry ports of travel documents against a database of some fourteen million lost and stolen passports.
What this translates to on the ground in China from an immigration point of view is new restrictions on foreigners – a significant proportion of foreigners resident in China will leave by July 1st due to their inability to extend their current status. The only possibility for many foreigners currently is to apply for a residence permit linked to a working visa; the requirements for which have got stricter in recent months; the legitimacy of the company involved is scrutinized and matters such as years of operation, registered capital and genuine need for foreign workers are examined. This is largely to prevent bogus enterprises from issuing work permits.
One group for which this has a major impact are those students pursuing internships in China – many multinationals have long established Summer intern programs which now must be curtailed because the traditional visa used for those on internships, the “F” visa, is now issued for non-extendable periods of 30 days and all applications must be accompanied by roundtrip tickets and hotel bookings for each night of the proposed stay. Previously the validity period was up to two years with no requirement for either air tickets or hotel bookings.
With the Olympic Games less than three months away we can expect to see further tightening of visa regulations, particularly from July 1st when the official “Olympic Period” begins.
INSPITE OF INITIAL ENTHUSIASM CHINA RELUCTANT TO BROADEN SCOPE OF GREEN CARD SCHEME
Andrew Lillis
Lehman, Lee & Xu
andrew@lehmanlaw.com
In 2004 China officially began issuing permanent resident cards, known colloquially as Green Cards, to foreigners who meet certain criteria. In spite of the name though there are fundamental difference between China’s Green card and “Green Cards” in other countries such as the United States and Ireland. The main aim is the same; to allow non citizens to reside permanently in the country and enjoy similar rights to citizens though the means of acquiring a green card is somewhat different.
Fundamentally Chinese is not known as a country of immigrants and its immigration laws did not allow foreigners to reside permanently in the country until 1986 when the National People’s Congress adopted the Law of the People’s Republic of China on the Entry an Exit of Foreigners. China however is changing and record numbers of foreigners, attracted by China’s rapid economic growth and potential business, are settling in China. This influx of foreigners was the catalyst for the introduction of China’s own Green Card system; with the dual goal of attracting foreign talent to China and giving recognition to those already here who make significant contributions to the country’s success.
In spite of the large numbers of expatriates in China (recently the number of foreigners with resident permits in China was estimated at 250,000) only 649 “green cards” were issued in the first twelve months of the scheme’s operation. Compare this to the United States where each year approximately 1,000,000 green cards are issued. One of the main issues for the disparity is the relatively narrow scope of the regulations. Under the law, enacted in 2004, Green Cards are available to those who fall within one of four categories;
1. Be a high-level foreign expert holding a post which promotes China's economic, scientific and technological development, or social progress.
High level expert is defined as those “having assumed the posts of deputy general manager or deputy director of plants or higher level posts or posts of associate professors or associate research fellows and similar posts for more than four years in a row” meaning this is reserved for those holding high level jobs in their respective enterprises and high level academics. It is somewhat narrow; the foreign manager of a PR firm, for example, would not be entitled to the status as such jobs are not within the scope of the regulations.
2. Have made outstanding contributions of special importance to China
This category is reserved for exceptional individuals and in practice is rarely used.
3. Have made a large direct investment ranging from US$ 500,000 to $2,000,000 in China
The applicant under this heading must have resided in China continually for 3 years and have invested one of the following amounts
a. $500,000 if the investment is in an “encouraged” field or if the investment is in one of the less developed western regions of China.
b. $1,000,000 if the investment is in the central region of the country.
c. $2,000,000 if the investment is elsewhere in the coastal regions of China.
4. Have come to China to join family members such as spouse, dependent minors or senior citizens.
This applies to both the dependents of those foreigners granted a green card and certain dependents of Chinese nationals. In order for the foreign spouse of a Chinese national to apply they must first reside in China for at least nine months every year for five years. For the parents of a Chinese national to apply they must be dependent on the Chinese national, be over the age of 60 and intend to reside in China for more than nine months each year.
Once granted the Green Card holder enjoys the same rights as Chinese citizens with two exceptions; they cannot participate in elections and they cannot serve in the armed forces. They do however enjoy educational benefits for their children, the ability to buy property, establish a business and the ability to enter and exit China without the need for a visa. Furthermore holders retain the benefits accorded to foreigners in China, such as preferential tax status. The validity of a green card is 10 years after which there is a routine renewal process.
More information can be found at on the website of the Beijing municipal government http://www.ebeijing.gov.cn/OLS/Jongtian/default.htm
Lehman, Lee & Xu
andrew@lehmanlaw.com
In 2004 China officially began issuing permanent resident cards, known colloquially as Green Cards, to foreigners who meet certain criteria. In spite of the name though there are fundamental difference between China’s Green card and “Green Cards” in other countries such as the United States and Ireland. The main aim is the same; to allow non citizens to reside permanently in the country and enjoy similar rights to citizens though the means of acquiring a green card is somewhat different.
Fundamentally Chinese is not known as a country of immigrants and its immigration laws did not allow foreigners to reside permanently in the country until 1986 when the National People’s Congress adopted the Law of the People’s Republic of China on the Entry an Exit of Foreigners. China however is changing and record numbers of foreigners, attracted by China’s rapid economic growth and potential business, are settling in China. This influx of foreigners was the catalyst for the introduction of China’s own Green Card system; with the dual goal of attracting foreign talent to China and giving recognition to those already here who make significant contributions to the country’s success.
In spite of the large numbers of expatriates in China (recently the number of foreigners with resident permits in China was estimated at 250,000) only 649 “green cards” were issued in the first twelve months of the scheme’s operation. Compare this to the United States where each year approximately 1,000,000 green cards are issued. One of the main issues for the disparity is the relatively narrow scope of the regulations. Under the law, enacted in 2004, Green Cards are available to those who fall within one of four categories;
1. Be a high-level foreign expert holding a post which promotes China's economic, scientific and technological development, or social progress.
High level expert is defined as those “having assumed the posts of deputy general manager or deputy director of plants or higher level posts or posts of associate professors or associate research fellows and similar posts for more than four years in a row” meaning this is reserved for those holding high level jobs in their respective enterprises and high level academics. It is somewhat narrow; the foreign manager of a PR firm, for example, would not be entitled to the status as such jobs are not within the scope of the regulations.
2. Have made outstanding contributions of special importance to China
This category is reserved for exceptional individuals and in practice is rarely used.
3. Have made a large direct investment ranging from US$ 500,000 to $2,000,000 in China
The applicant under this heading must have resided in China continually for 3 years and have invested one of the following amounts
a. $500,000 if the investment is in an “encouraged” field or if the investment is in one of the less developed western regions of China.
b. $1,000,000 if the investment is in the central region of the country.
c. $2,000,000 if the investment is elsewhere in the coastal regions of China.
4. Have come to China to join family members such as spouse, dependent minors or senior citizens.
This applies to both the dependents of those foreigners granted a green card and certain dependents of Chinese nationals. In order for the foreign spouse of a Chinese national to apply they must first reside in China for at least nine months every year for five years. For the parents of a Chinese national to apply they must be dependent on the Chinese national, be over the age of 60 and intend to reside in China for more than nine months each year.
Once granted the Green Card holder enjoys the same rights as Chinese citizens with two exceptions; they cannot participate in elections and they cannot serve in the armed forces. They do however enjoy educational benefits for their children, the ability to buy property, establish a business and the ability to enter and exit China without the need for a visa. Furthermore holders retain the benefits accorded to foreigners in China, such as preferential tax status. The validity of a green card is 10 years after which there is a routine renewal process.
More information can be found at on the website of the Beijing municipal government http://www.ebeijing.gov.cn/OLS/Jongtian/default.htm
Wednesday, May 7, 2008
NATIONALITY OPTION – CONSTITUTIONAL AMENDMENT NO. 54 DATED 09/20/2007
Carolina Garutti and Daniela Lima
EMDOC MRS
carolina@emdoc.com
daniela@emdoc.com
Former wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they come to reside in the Federative Republic of Brazil and choose, anytime, the Brazilian nationality”;
Constitutional Amendment no. 54 dated 09/20/2007
Current wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they are registered in a competent Brazilian office or come to reside in the Federative Republic of Brazil and choose, anytime after becoming of age, the Brazilian nationality”;
Article 95 of the Transitory Constitutional Provisions – “Persons born abroad between June 07, 1994 and the date of the enactment of this Constitutional Amendment (09/21/2007), from Brazilian parents, may be registered in a competent Brazilian consular or diplomatic office or registration office, if they come to reside in the Federative Republic of Brazil”.
In view of the above, we note that before the publication of the Constitutional Amendment no. 54, for children of Brazilians residing abroad (jus sanguinis) to acquire the Brazilian nationality, they had (i) to reside in the Federative Republic of Brazil and (ii) choose, anytime, the Brazilian nationality before the Brazilian Federal Justice.
These requirements created many factual and judicial problems for the children of Brazilians intending to obtain Brazilian nationality, taking into consideration that the majority of them, born abroad, had no means of evidencing “residence” in Brazilian territory, depending, sometimes, on the address of parents, uncles/aunts, friends to obtain water bills, light bills and prove such “residence” in the Brazilian Federal Justice.
Please note that, in order to comply with these provisions there was a problem arising by reason of the applicant’s stay in Brazilian territory, since such persons entered Brazil as foreigners. If they had no labor, student or permanent visa as a consequence of marriage or Brazilian children, they had to remain in our country for the maximum term of 180 days per year.
In order to secure Brazilian citizenship such persons had to hire lawyers and many had no money to finance the judicial process.
I would like to leave here a small criticism to the Judicial Power, since several times I had suits on nationality choice where advanced protection was requested (article 273 of the Civil Proceedings Code), taking into consideration that my clients needed such concession to be able to remain and work in Brazil as Brazilians and in spite of our request, the Judicial Power only granted protection upon the judgment of the sentence (more or less after eight (8) months), sometimes allowing such people to stay irregularly in our country.
I believe such people suffered negative experiences which could be avoided had the Federal Judges of our country been a little more sensitive.
After the Constitutional Amendment, with the change of article 12, item I, indent “c” of our Constitution and with the enactment of article 95 of the Transitory Constitutional Provisions Act, it is noted that, in order for Children of Brazilians born abroad (jus sanguinis) to acquire Brazilian nationality, they must (i) be registered in a competent Brazilian office (Embassies, Consulates) or (ii) choose, anytime, after becoming of age, Brazilian nationality before the Brazilian Federal Justice.
Therefore, the adding conjunction “e" was substituted by the alternative conjunction “or”, which created the alternative (a) of the parents (active subject) of such people registering their children with the Brazilian Consulates and Embassies abroad or (b) the interested parties, themselves (active subject) after coming of age, to request Brazilian nationality before the Brazilian Federal Justice. By adopting either choice, such people will acquire Brazilian nationality.
We emphasize that alternative (a) above, may be exercised by the parents (active subject) until such time when their children reach twelve (12) years of age, because after such condition this registration is no longer accepted by the competent Brazilian offices, as per Book l, Chapter 4, Section 4, article 4.4.1. Therefore, if registration is not affected prior to age 12, the interested party itself will have the option of requesting Brazilian nationality as was the case before the enactment of the Constitutional Amendment no. 54 published on 09/21/2007, i.e., direct request thereby to the Brazilian Federal Justice.
In face of the above, we inquire: what treatment will be given to people born abroad who were not registered by their parents before reaching twelve (12) years of age and who are still minors (under 18 years of age) ? That is, during this period of time, if they reside abroad, may they obtain Brazilian passport to travel to Brazil as Brazilians? I believe yes, and if they are in Brazil, will they be able to obtain a temporary Brazilian Identification Card (RG) to live in Brazil, until such time when they become of age and apply for the Brazilian nationality? I also believe the answer to be yes.
Another issue to be analyzed is article 95 of the Transitory Constitutional Provisions Act, since I have no doubt that people born abroad between June 07, 1994 and September 21, 2007 will acquire the Brazilian nationality if (I) they are registered in a Brazilian Diplomatic Office or Consulate, thus creating an exception to the rule that such registration must occur prior to such time as the child reaches twelve (12) years of age, or (II) in a Brazilian Registrar, if they come to reside in the Federative Republic of Brazil, without having to apply to the Federal Justice in our country.
However, I continue to have doubts about the treatment likely to be given to people born abroad before 1994 and who have not yet applied for the Brazilian nationality, since, if they were registered in a Brazilian diplomatic office or consulate, have they immediately acquired Brazilian nationality with the enactment of the Constitutional Amendment no. 54? (previously, they had to apply for the nationality option before the Federal Justice) I believe yes. And those people which were not registered with a Brazilian diplomatic office or Consulate and are not yet of age (from 1990 to 1993), will they be able to obtain temporary Brazilian passports until they become of age or obtain a temporary Brazilian Identity (RG)? I believe yes. Finally, what about people born before 1990, will they have the sole choice of applying for the Brazilian nationality before the Brazilian Federal Justice? I also believe the answer to be yes.
I would also like to emphasize that the expression nationality “option” is technically totally wrong, and should be substituted with the term “request to exercise” Brazilian nationality, considering that such people, born abroad, are entitled to be Brazilians as of their birth (original nationality). Therefore, when they acquire Brazilian nationality they do not make any choice, they only exercise a right, since they do not loose their nationality of origin. For example, if the person was Japanese, by exercising Brazilian nationality he or she becomes Japanese and Brazilian (double nationality) the same thing happening to other nationalities.
Conclusion: I believe that the enactment of this Amendment is a very positive development affecting the lives of many people living abroad. It also clarifies many doubts previously existing on the matter, particularly in Brazilian Consulates and Embassies, as well as in the Brazilian Federal Judicial Power itself. However, I believe it could be more technical in the sense of not leaving so many doubts on its interpretation.
CAROLINA GARUTTI AND DANIELA LIMA are lawyers and partners of EMDOC MRS, a 20-years company, specialized in rendering services in the immigration market, transferring employees to Brazil and from Brazil to other countries.
EMDOC MRS
carolina@emdoc.com
daniela@emdoc.com
Former wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they come to reside in the Federative Republic of Brazil and choose, anytime, the Brazilian nationality”;
Constitutional Amendment no. 54 dated 09/20/2007
Current wording of Article 12, item I, indent "c" of the Federal Constitution - Persons born abroad, with Brazilian parents are Brazilian, provided they are registered in a competent Brazilian office or come to reside in the Federative Republic of Brazil and choose, anytime after becoming of age, the Brazilian nationality”;
Article 95 of the Transitory Constitutional Provisions – “Persons born abroad between June 07, 1994 and the date of the enactment of this Constitutional Amendment (09/21/2007), from Brazilian parents, may be registered in a competent Brazilian consular or diplomatic office or registration office, if they come to reside in the Federative Republic of Brazil”.
In view of the above, we note that before the publication of the Constitutional Amendment no. 54, for children of Brazilians residing abroad (jus sanguinis) to acquire the Brazilian nationality, they had (i) to reside in the Federative Republic of Brazil and (ii) choose, anytime, the Brazilian nationality before the Brazilian Federal Justice.
These requirements created many factual and judicial problems for the children of Brazilians intending to obtain Brazilian nationality, taking into consideration that the majority of them, born abroad, had no means of evidencing “residence” in Brazilian territory, depending, sometimes, on the address of parents, uncles/aunts, friends to obtain water bills, light bills and prove such “residence” in the Brazilian Federal Justice.
Please note that, in order to comply with these provisions there was a problem arising by reason of the applicant’s stay in Brazilian territory, since such persons entered Brazil as foreigners. If they had no labor, student or permanent visa as a consequence of marriage or Brazilian children, they had to remain in our country for the maximum term of 180 days per year.
In order to secure Brazilian citizenship such persons had to hire lawyers and many had no money to finance the judicial process.
I would like to leave here a small criticism to the Judicial Power, since several times I had suits on nationality choice where advanced protection was requested (article 273 of the Civil Proceedings Code), taking into consideration that my clients needed such concession to be able to remain and work in Brazil as Brazilians and in spite of our request, the Judicial Power only granted protection upon the judgment of the sentence (more or less after eight (8) months), sometimes allowing such people to stay irregularly in our country.
I believe such people suffered negative experiences which could be avoided had the Federal Judges of our country been a little more sensitive.
After the Constitutional Amendment, with the change of article 12, item I, indent “c” of our Constitution and with the enactment of article 95 of the Transitory Constitutional Provisions Act, it is noted that, in order for Children of Brazilians born abroad (jus sanguinis) to acquire Brazilian nationality, they must (i) be registered in a competent Brazilian office (Embassies, Consulates) or (ii) choose, anytime, after becoming of age, Brazilian nationality before the Brazilian Federal Justice.
Therefore, the adding conjunction “e" was substituted by the alternative conjunction “or”, which created the alternative (a) of the parents (active subject) of such people registering their children with the Brazilian Consulates and Embassies abroad or (b) the interested parties, themselves (active subject) after coming of age, to request Brazilian nationality before the Brazilian Federal Justice. By adopting either choice, such people will acquire Brazilian nationality.
We emphasize that alternative (a) above, may be exercised by the parents (active subject) until such time when their children reach twelve (12) years of age, because after such condition this registration is no longer accepted by the competent Brazilian offices, as per Book l, Chapter 4, Section 4, article 4.4.1. Therefore, if registration is not affected prior to age 12, the interested party itself will have the option of requesting Brazilian nationality as was the case before the enactment of the Constitutional Amendment no. 54 published on 09/21/2007, i.e., direct request thereby to the Brazilian Federal Justice.
In face of the above, we inquire: what treatment will be given to people born abroad who were not registered by their parents before reaching twelve (12) years of age and who are still minors (under 18 years of age) ? That is, during this period of time, if they reside abroad, may they obtain Brazilian passport to travel to Brazil as Brazilians? I believe yes, and if they are in Brazil, will they be able to obtain a temporary Brazilian Identification Card (RG) to live in Brazil, until such time when they become of age and apply for the Brazilian nationality? I also believe the answer to be yes.
Another issue to be analyzed is article 95 of the Transitory Constitutional Provisions Act, since I have no doubt that people born abroad between June 07, 1994 and September 21, 2007 will acquire the Brazilian nationality if (I) they are registered in a Brazilian Diplomatic Office or Consulate, thus creating an exception to the rule that such registration must occur prior to such time as the child reaches twelve (12) years of age, or (II) in a Brazilian Registrar, if they come to reside in the Federative Republic of Brazil, without having to apply to the Federal Justice in our country.
However, I continue to have doubts about the treatment likely to be given to people born abroad before 1994 and who have not yet applied for the Brazilian nationality, since, if they were registered in a Brazilian diplomatic office or consulate, have they immediately acquired Brazilian nationality with the enactment of the Constitutional Amendment no. 54? (previously, they had to apply for the nationality option before the Federal Justice) I believe yes. And those people which were not registered with a Brazilian diplomatic office or Consulate and are not yet of age (from 1990 to 1993), will they be able to obtain temporary Brazilian passports until they become of age or obtain a temporary Brazilian Identity (RG)? I believe yes. Finally, what about people born before 1990, will they have the sole choice of applying for the Brazilian nationality before the Brazilian Federal Justice? I also believe the answer to be yes.
I would also like to emphasize that the expression nationality “option” is technically totally wrong, and should be substituted with the term “request to exercise” Brazilian nationality, considering that such people, born abroad, are entitled to be Brazilians as of their birth (original nationality). Therefore, when they acquire Brazilian nationality they do not make any choice, they only exercise a right, since they do not loose their nationality of origin. For example, if the person was Japanese, by exercising Brazilian nationality he or she becomes Japanese and Brazilian (double nationality) the same thing happening to other nationalities.
Conclusion: I believe that the enactment of this Amendment is a very positive development affecting the lives of many people living abroad. It also clarifies many doubts previously existing on the matter, particularly in Brazilian Consulates and Embassies, as well as in the Brazilian Federal Judicial Power itself. However, I believe it could be more technical in the sense of not leaving so many doubts on its interpretation.
CAROLINA GARUTTI AND DANIELA LIMA are lawyers and partners of EMDOC MRS, a 20-years company, specialized in rendering services in the immigration market, transferring employees to Brazil and from Brazil to other countries.
Monday, May 5, 2008
THE NETHERLANDS: JUDGES EXPRESS THEIR FRUSTRATION ON STATE COUNCIL JURISPRUDENCE
Jelle Kroes
Everaert Immigration Lawyers
kroes@everaert.nl
The jurisprudence of the Dutch State Council is tainted with bias and formalism, at the expense of the fundamental rights of immigrants, in particular asylum seekers. This is the conclusion of a survey undertaken by Mr. Kees Groenendijk, retiring Professor at Nijmegen University.
Mr. Groenendijk's impressive retiring speech on 25 April 2008 contained part of the survey and immediately raised the debate on the controversial case law of the State Council's judiciairy department (the Afdeling rechtspraak of the Raad van State). Most national newspapers commented sharply. More importantly, the Labor party (PvdA) have called for an intervention from the Minister of Justice, followed by a public hearing, appeals supported by most parliamentary parties.
Mr. Groenendijk and his successor Mrs. Ashley Terlouw interviewed 24 immigration judges working at the District courts on a no-name basis. A number of the interviewees admitted to be in moral conflict with themselves. Some regret to not have stood up more clearly against the State Council. Their main concern is the strict line in the State Council's case law in which the facts of the case rarely seem to make a difference, and formal arguments appear to be decisive. The statistics are indeed remarkable. In 90% of the cases, the appeal turns out negatively for the asylum seeker. In only 4% of the cases the State Council sees a point in arranging a court hearing, the rest is decided purely on the basis of the file. In other administrative cases the number of court hearings is 84%.
The report of the survey is published under the title "A vicious process" (Een venijnig proces). The controvery is not new. Since 2001, District Court judgements can be appealed against with the State Council. Until then, District courts ruled in first and final instance. Soon after the first appeal judgements came through, allegations of bias and excessive formalism were expressed by lecturers and practitioners on a wide scale. However, the State Council continued its strict line. This time the debate has reached a political level, and it seems likely that fundemental changes to the system of legal remedies can no longer be avoided.
Amsterdam, 2 May 2008
Everaert Immigration Lawyers
kroes@everaert.nl
The jurisprudence of the Dutch State Council is tainted with bias and formalism, at the expense of the fundamental rights of immigrants, in particular asylum seekers. This is the conclusion of a survey undertaken by Mr. Kees Groenendijk, retiring Professor at Nijmegen University.
Mr. Groenendijk's impressive retiring speech on 25 April 2008 contained part of the survey and immediately raised the debate on the controversial case law of the State Council's judiciairy department (the Afdeling rechtspraak of the Raad van State). Most national newspapers commented sharply. More importantly, the Labor party (PvdA) have called for an intervention from the Minister of Justice, followed by a public hearing, appeals supported by most parliamentary parties.
Mr. Groenendijk and his successor Mrs. Ashley Terlouw interviewed 24 immigration judges working at the District courts on a no-name basis. A number of the interviewees admitted to be in moral conflict with themselves. Some regret to not have stood up more clearly against the State Council. Their main concern is the strict line in the State Council's case law in which the facts of the case rarely seem to make a difference, and formal arguments appear to be decisive. The statistics are indeed remarkable. In 90% of the cases, the appeal turns out negatively for the asylum seeker. In only 4% of the cases the State Council sees a point in arranging a court hearing, the rest is decided purely on the basis of the file. In other administrative cases the number of court hearings is 84%.
The report of the survey is published under the title "A vicious process" (Een venijnig proces). The controvery is not new. Since 2001, District Court judgements can be appealed against with the State Council. Until then, District courts ruled in first and final instance. Soon after the first appeal judgements came through, allegations of bias and excessive formalism were expressed by lecturers and practitioners on a wide scale. However, the State Council continued its strict line. This time the debate has reached a political level, and it seems likely that fundemental changes to the system of legal remedies can no longer be avoided.
Amsterdam, 2 May 2008
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