Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156 : Citizenship Ceremony Rule Requiring Niqab Removal Found Unlawful

The Federal Court considered whether the government could require a citizenship applicant wearing a niqab to remove her face covering while taking the citizenship oath at a public ceremony.

The applicant was willing to uncover her face privately for identification purposes and had already done so during her citizenship test. However, she objected to removing her niqab publicly while taking the oath because of her religious beliefs.

The Court found that the mandatory policy requiring removal of face coverings during the oath was inconsistent with the Citizenship Regulations and therefore unlawful.

Key Principle

An IRCC policy or operational guideline cannot override the Citizenship Act or the Citizenship Regulations.

Where legislation gives a decision-maker discretion, an administrative policy cannot remove that discretion by imposing a mandatory rule that conflicts with the governing law.

The case also demonstrates an important distinction between taking the citizenship oath and being visually observed saying every word of the oath.

Background

The applicant was a Pakistani national and a permanent resident of Canada whose citizenship application had been approved.

She was a Sunni Muslim who sincerely believed that she was required to wear a niqab in public. She was prepared to remove it where necessary for identification or security, provided this occurred privately before a female official.

She had already removed her niqab in this manner during her citizenship test.

The difficulty arose because Citizenship and Immigration Canada had introduced a policy requiring citizenship candidates wearing face coverings to remove them during the oath-taking portion of the public ceremony.

Under the policy, a person who refused could be denied a citizenship certificate and ultimately have their citizenship application closed.

Court Findings

The government argued that the policy was merely a guideline and that citizenship judges retained discretion in applying it.

The Court disagreed.

The wording of the policy stated that candidates “are required” to remove their face coverings and directed officials not to provide citizenship certificates where candidates were not seen taking the oath.

The Court therefore found that the policy operated as a mandatory rule rather than optional guidance.

This created a problem because the Citizenship Regulations required citizenship judges to administer the oath with dignity and solemnity while allowing the greatest possible freedom in its religious solemnization or solemn affirmation.

A mandatory policy preventing citizenship judges from considering individual religious circumstances improperly restricted that discretion.

The Court also noted that the governing legislation required a citizenship applicant to take the oath, but did not require officials to visually confirm that the person’s mouth was moving while doing so.

Applicants were also required to sign a written certification confirming that they had taken the oath. The Court found that the additional requirement for visual confirmation was not supported by the legislation.

The applicant had also raised freedom of religion and equality arguments under the Canadian Charter of Rights and Freedoms.

However, the Court deliberately did not decide those constitutional questions. Because the policy was already unlawful under the Citizenship Regulations, there was no need to determine whether it also violated the Charter.

Outcome

The Federal Court allowed the application for judicial review and declared the portions of the citizenship policy requiring candidates to remove face coverings or be visually observed taking the oath to be unlawful.

The Federal Court of Appeal later upheld the result in Ishaq, 2015 FCA 194, and the federal government subsequently discontinued its application for leave to appeal to the Supreme Court of Canada in November 2015.

 

Case Citation:

Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156 CanLII

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