Passport misuse can lead to travel restrictions: There is no absolute right to possess a passport

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BY WILLIAM MACINTOSH

 

STORY 3 ITEM 1

IMMIGRATION law is one aspect of the international movement of people. Each country has its own rules to decide who it will allow in to live permanently, visit, work or study. One other aspect of immigration law which does not get talked about much is the use of passports.

Passports are the fundamental document which an international traveller needs to be able to move between countries. While Canadian citizens have a constitutional right under the Charter of Rights and Freedoms to enter, remain in and leave Canada, there is no absolute right to possess a passport to facilitate the right to leave and enter Canada. Jose Dias recently learned that after attempting to assist his foreign wife to come to Canada in late 2010.

Passports are government-issued documents that certify the identity and nationality of its holder. They have existed in one form or another for more than two thousand years. The first true passport is said to have originated in England during the reign of Henry V in the early 1400s.

While passports were issued in various forms since then, it was not until after World War I that countries agreed to guidelines for the standard booklet form of passport that continues to exist. More formal rules for a standardized passport started in 1980, through the International Civil Aviation Organization which governs international air travel.

Each country has its own rules for issuing passports. In Canada, that rule is the Canadian Passport Order. The current Order was passed in 1981 and has been amended several times since then. The Order is a unique law. It is passed solely by authority of legal powers still remaining with the Queen, known as the royal prerogative, that are exercised by the federal cabinet. There is no Parliamentary statute governing the issuance and use of passports.

 

THE number of people travelling between countries has increased dramatically in the past four decades through more accessible air travel. Consequently, there has been an increased use of fraudulent and altered travel documents and misuse of legitimate travel documents. Countries have become more vigilant in preventing the misuse of passports, especially since the events of 2001 and the threat of international terrorism.

Passport officials began taking action against Canadian citizens in the 1990s, whose legitimate passports wound up being used by other persons attempting to enter Canada or other countries. Under the Canadian Passport Order, a passport may be refused for a number of reasons, including if an applicant is charged with an indictable offence or is charged with offences outside Canada that would be an indictable offence in Canada. Passports will not be issued to persons subject to imprisonment in Canada or who are forbidden by court orders to leave Canada.

Existing passports may be revoked for similar reasons. As well, passports may be revoked if the person uses the passport to assist him in committing an indictable offence in Canada or any offence in a foreign country or state that would constitute an indictable offence if committed in Canada, or permits another person to use the passport. The decision to refuse or revoke a passport also includes the power to impose a period of refusal of passport services.

Jose Dias had his Canadian passport revoked after travelling with his Brazilian wife to St. Maarten, where she attempted to board a plane to Canada. His wife had obtained a New Zealand passport, based on a claim to New Zealand citizenship through a grandmother. She was using a New Zealand passport when attempting to come to Canada. She was refused boarding when it was decided that the New Zealand passport was counterfeit. Mr. Dias subsequently came to Canada. After an investigation, in June, 2012, Passport Canada revoked his passport and barred Mr. Dias from obtaining a new passport for five years, except to travel on urgent, compelling and compassionate grounds.

Fortunately for Mr. Dias, he challenged the decision. Earlier this month, the Federal Court overturned the decision. It found the decision wrong as the passport director failed to specify what law Mr. Dias purportedly committed in assisting his wife to obtain a New Zealand passport.

Other persons have not been so fortunate. In several cases, passport holders have claimed to have lost their passport while abroad. While they received an emergency passport to return to Canada, someone else subsequently used their original passport to arrive in Canada. The passports were revoked when evidence was obtained that the Canadian allowed their passport to be misused.

Along with increased enforcement against misrepresentation in immigration cases, the current government has empowered Passport Canada to investigate misuse of passports. The consequences to someone misusing their passport can be difficult, affecting the ability to conduct business or visit family and friends abroad.

 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.