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
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
