Views of the Human Rights Committee of April 6, 2018 in the case of Deepan Budlakoti v. Canada (communication No. 2264/2013).
In 2013, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Canada.
Subject of the message: expulsion from Canada to India.
Substantive issues: the right to liberty and security of person; the right to enter one's own country; the right to family life.
The Committee's legal position: The Committee refers to general comment No. 27 (1999) on freedom of movement, in which it indicated that the scope of the concept of "one's own country" is broader than the scope of the concept of "one's country of nationality". This concept is not limited to citizenship in the formal sense, that is, to citizenship acquired by birth or grant; it applies, at least, to a person who, due to his special ties with a particular country or claims to have such, cannot be considered simply a foreigner. The Committee refers to its jurisprudence, according to which it has indicated the existence of factors other than nationality that may indicate the existence of a person's close and lasting ties with a particular country - ties that may be closer than those conditioned by nationality. The Committee noted that the phrase "one's own country" implies consideration of issues such as the length of residence, the existence of close personal and family ties and the intention to remain in the country, as well as the absence of such ties outside its borders (paragraph 9.2 of the Views) (See Warsame v. Canada, paragraph 8.4, and Nystrom v. Australia, paragraph 4.).
By virtue of article 12 of the Covenant, "1. Everyone who is lawfully located on the territory of a State has, within that territory, the right to free movement and freedom to choose their place of residence. 2. Everyone has the right to leave any country, including his own. 3. The above-mentioned rights may not be subject to any restrictions other than those provided for by law, necessary for the protection of national security, public order, public health or morals, or the rights and freedoms of others, and are compatible with other rights recognized in the present Covenant. 4. No one may be arbitrarily deprived of the right to enter their own country."
With regard to the allegations of the arbitrary nature of the author's deportation, the Committee refers to its jurisprudence that interference provided for by law must be consistent with the provisions, aims and objectives of the Covenant and must in any case be reasonable in the relevant specific circumstances (See Warsame v. Canada, paragraph 8.6, and Nystrom v. Australia, paragraph 7.6.). The concept of "arbitrariness" includes elements of unacceptability, injustice, unpredictability and non-compliance with procedural guarantees, along with elements of expediency, necessity and proportionality. The Committee... He noted that the circumstances in which the deprivation of the right to enter his country could be reasonable are few, if any. By depriving a person of his or her nationality or expelling him or her to a third country, the State party should not arbitrarily prevent the return of that person to his or her country (paragraph 9.4 of the Views) (See para. Warsame v. Canada, paragraph 8.6, and Nystrom v. Australia, paragraph 7.6.).
With regard to the alleged violation of articles 17 and 23, paragraph 1, taken individually or in conjunction with article 2, paragraph 3, of the Covenant, the Committee refers to its jurisprudence that there may be cases where a State party's refusal to allow a family member to remain in its territory would constitute interference with the family life of the person concerned. However, the fact that certain family members have the right to remain in the territory of a State party does not in itself mean that requiring other family members to leave the country would constitute such an intervention (See, for example, Warsame v. Canada, paragraph 8.7, Winata v. Australia (CCPR/C/72/D/930/2000), paragraph 7.1, Madaferi et al. v. Australia (CCPR/C/81/D/1011/2001), paragraph 9.7, Bwahuranga v. Denmark (CCPR/C/82/D/1222/2003), paragraph 11.5, and Dauphin v. Canada, paragraph 8.1.). The Committee also refers to its general comments No. 16 and No. 19, which state the need for an expanded interpretation of the concept of "family". He further recalls that the separation of a person from his family by expulsion may be considered as arbitrary interference with family life and as a violation of article 17 if, in the circumstances of the relevant case, the separation of the author from his family with the consequences resulting therefrom for him is disproportionate to the purposes of expulsion (paragraph 9.5 of the Views) (See Kanepa v. Canada, paragraph 11.4.).
The Committee recalls that the concept of "arbitrariness" includes elements of unacceptability, injustice, unpredictability and non-compliance with procedural guarantees, along with elements of expediency, necessity and proportionality. The Committee also recalls that the relevant criteria for determining whether a particular act of interference with family life can be considered objectively justified should be considered in the light, on the one hand, of the weight of the State party's argument in favor of the expulsion of the person concerned and, on the other hand, taking into account the degree of deprivation that the family and its members as a result of such expulsion (paragraph 9.6 of the Views) (See A.B. v. Canada, paragraph 8.7.).
The Committee's assessment of the factual circumstances of the case: [c] With regard to the author's complaint under article 12, paragraph 4, of the Covenant, the Committee should first consider whether Canada is the author's "own country" for the purposes of this provision and whether his deportation from Canada and deprivation of the right to enter this country would be arbitrary (paragraph 9.2 of the Considerations).
The Committee notes the absence of statements challenging the facts that the author was born in Canada, lived there all his life and received his education in that country. His parents and brother live in Canada, and all are citizens of that country. The author has never lived in India and visited this country only once at the age of 11 for two weeks, and there is no evidence in the case that he had a relationship or connections with anyone in India. In addition, the author claims that neither he nor his parents applied for Canadian citizenship because, in their opinion, he was a Canadian citizen by virtue of the fact of his birth in Canada, i.e. by right of soil, and, in their opinion, this position is confirmed by the fact that The author has been issued a Canadian passport twice and that his brother, who was also born in Canada, is a Canadian citizen. The Committee notes that if the author had not been issued a Canadian passport at the time, he would have realized much earlier that he was not considered a Canadian citizen, and then he could have started applying for citizenship from that moment on. Therefore, taking into account the special circumstances of this case, including the existence of ties closely linking the author to Canada, the presence of his family in Canada, the language he speaks, the length of his stay in the country, confusion about his citizenship and the absence of any ties with India, except, at best In the case of official citizenship, which has not yet been confirmed, the Committee considers it proven by the author that Canada is his own country within the meaning of article 12, paragraph 4, of the Covenant (paragraph 9.3 of the Views).
The Committee takes note of the State party's argument that the author's expulsion to India is reasonable in the specific circumstances of his case and proportionate to the gravity of his crimes. In this case, taking into account the fact that the author was convicted twice back in 2009 and 2010, that he did not commit any new crimes after his release, that there is no data in his file indicating his conviction for violent crimes, as well as his assurances that he was "overshadowed", the Committee Considers that interference with the author's exercise of his rights, as set out in paragraph 4 of article 12, would be disproportionate to the stated legitimate purpose of preventing the commission of further crimes. In the circumstances, the Committee concludes that the author's deportation to India would be a violation of his rights under article 12, paragraph 4, of the Covenant (paragraph 9.4 of the Views).
It should be noted that the authors of the communications in the cases of Dauphin v. Canada and A.B. v. Canada were convicted, in particular, of aggravated rape and armed robbery, respectively; robbery; robbery with violence; as well as aggravated assault and robbery.
The Committee notes that in this case, the Immigration and Refugee Protection Act in force in the State party explicitly provides that a permanent residence permit of a non-citizen may be revoked if a resident of the country is convicted of a criminal offence for which a prison sentence of more than 6 months is imposed. The Committee also takes note of the State party's argument that the author's expulsion to India is reasonable in the circumstances of his case and proportionate to the gravity of his crimes. The Committee... Takes note of the author's claims that he has no ties to India; that he maintains close relations with his parents and brother; that his deportation will completely destroy his family ties due to the fact that his family will not be able to visit him in India for financial reasons; and that he is integrated into Canadian society and returned to normal life. The Committee... Notes that there is no agreement between the parties on how close the ties between the author and his family are. However, it notes the author's statement that he currently lives with his brother and wishes to maintain close relations with his family. He also notes that the author's residence with his parents was set as a condition for his release from detention. In these circumstances, the Committee expresses the view that his deportation to India will have a negative impact on his family ties. The Committee further notes that the author was convicted twice back in 2009 and 2010 and that he has not committed repeated crimes since his release. The Committee therefore concludes that interference with the author's family life would be disproportionate to the legitimate aim of preventing him from committing new crimes (paragraph 9.7 of the Views).
The Committee considers that the author's deportation to India would be a violation of his rights under articles 12, paragraph 4, 17 and 23, paragraph 1, of the Covenant (paragraph 10 of the Views).