Communication No. 1959/2010 (Warsame v Canada)

Parties (including notable third parties)

Jama Warsame; Canada

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Summary of Facts

Jama Warsame was a Somali national awaiting deportation from Canada to Somalia (p. 4).

Warsame was born in Saudi Arabia to Somali parents but never obtained Saudi Arabian citizenship. He had lived in Canada since the age of four and obtained permanent residency as a dependent of his mother. Warsame had never resided in or visited Somalia. He had no ties to Somalia and no knowledge of the language.

As a result of a number of convictions and imprisonment, Warsame received a deportation order from Canada for ‘serious criminality’ as defined in the Canadian Immigration and Refugee Protection Act 2001. Warsame’s domestic appeals against the deportation order were rejected or dismissed (p. 4) and he was notified by the Canadian Border Services Agency that he would be deported to Bossasso in Somalia.

Warsame subsequently submitted a communication to the Human Rights Committee (HRC) that Canada would violate articles 2(3), 6(1), 7, 12(4), 17, 18 and 23 of the International Covenant on Civil and Political Rights (ICCPR) if it were to deport him.

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Legal Arguments

Legal arguments by the Author

According to Warsame, Canada would breach the ICCPR if it deported him for the following reasons:

1. Due to his lack of ties to Somalia, limited language skills and severe humanitarian situation in Somalia, he would face the risk of being arbitrarily deprived of his life (in violation of article 6(1)) and subjected to torture and other cruel, inhuman or degrading treatment or punishment (in violation of article 7) (pp. 5-6).
2. Due to his family ties to Canada, Warsame also submitted that deportation would constitute an unlawful interference with his family (in violation of articles 17 and 23(1)) (p. 6).
3. He would be deprived of the right to enter his ‘own country’ of Canada, because he has remained there since the age of 4, received his entire education in Canada, and his citizenship status with Somalia was tenuous, having no proof and was neither born nor had ever lived in Somalia (in violation of article 12) (p. 12).

Legal arguments by the State Party

According to Canada, Warsame’s criminal record demonstrated that the gravity of his crimes and danger he posed to public security outweighed the human rights interferences he would face as a result of deportation (p. 8-9). Canada also contested Warsame’s claim of lack of clan affiliation in Somalia and that he did not face an individualised risk to personal safety (p. 7). Canada further submitted that Warsame had insufficient links to Canada for it to constitute his ‘own country’ (p. 13). As such, deportation of Warsame would be in accordance with law and due process, and therefore not arbitrary.

Outcome

The HRC (by a majority) found that deporting Warsame to Somalia would violate his rights under articles 6(1), 7, 12(4), 17 and 23(1) of the ICCPR:

• Articles 6(1) and 7 - due to the real risk of irreparable harm he would face (p. 16).
• Article 12(4) – the Committee determined that Canada was Warsame’s ‘own country’ due to his cultural, social and familial ties, and his lack of personal relationships elsewhere (p. 17).
• Articles 17 and 23(1) – due to the disproportionate interference with his family life in Canada (p. 18).

On Article 12(4), the HRC said ‘…there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words “his own country” invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.’ (para 8.4, p. 17)

In view of these findings, the HRC emphasised that, in accordance with article 2(3a) of the ICCPR, Canada was under an obligation to provide Warsame with an effective remedy, including by refraining from deporting him to Somalia (p. 19).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant on Civil and Political Rights	Articles 2(3), 6(1), 7, 12(4), 17, 18, 23(1)
International	Optional Protocol to the International Covenant on Civil and Political Rights	Articles 2, 3, 5(2)(b)
International	Convention Relating to the Status of Refugees
Domestic	Immigration and Refugee Protection Act 2001 (Canada)	Section 64

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Timothy E Lynch, ‘The Right to Remain’ (2022) 31(3) Washington International Law Journal 315

• Lynch observed that the HRC’s analysis of the factors adopted in Warsame v Canada (and two other HRC decisions) to determine ‘his own country’ focused on the number, strength, and nature of ties a person had to the relevant country, such as familial, social, cultural, linguistic, and professional (p. 332). The circumstances and legality of initial entry to the relevant country were irrelevant. The author further remarked that these cases abandoned an earlier exception to the principle found in Stewart v Canada that a country can be one’s ‘own country’ solely based on that person’s ties to that country. Lynch posited that this approach was justifiably abandoned as it could lead ‘absurd results’ such as in the case of Margeurite Grimmond, who lived in the UK for 78 years, easily qualified for British citizenship but for whatever reason never applied for British citizenship, and was in every sense British, yet was denied entry after her first overseas trip at the age of 80 (p. 334-335).

Jamil Ddamulira Mujuzi, ‘The Right to Enter One’s Own Country: The Conflict between the Jurisprudence of the Human Rights Committee and the Travaux Preparatoires of Article 12(4) of the ICCPR’ (2021) 10(1) International Human Rights Law Review 75

• This article examined a number of HRC communications, including Warsame v Canada, observing that these decisions were not unanimous (p. 118). Seven HRC members ultimately disagreed on the majority’s finding regarding article 12(4), with six members objecting to the broad interpretation of ‘his own country’. Although a number of HRC decisions have considered the interpretation of article 12(4), the author postulated that whether or not the article is given a broad or restrictive interpretation was a ‘question of numbers’, dependant on the view of the majority and making it ‘difficult, if not impossible for litigants and states to have a clear understanding’ of the HRC’s position on article 12(4) (p. 122).
• Mujuzi observed that the Committee has approached article 12(4) with ‘humanitarian lenses’ so that people who are de facto citizens should not be denied the right to live in countries they call their own (p. 122). However, the author criticised this approach as the drafting history of article 12(4) supports only one reading, which is that it is only applicable to nationals.

Michelle Foster and Helene Lambert, ‘Statelessness as a Human Rights Issue: A Concept Whose Time Has Come’ (2016) 28(4) International Journal of Refugee Law 564

• The authors acknowledged that the HRC in Nystrom v Australia, whose approach was followed in Warsame v Canada,considered factors ‘other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality’ (p. 575). The authors identified a number of cases from the HRC and European Court of Human Rights that found deportation to be an unjustified interference even if the persons do not have formalised citizenship, placing great weight on an individual’s social identity.
• After considering this jurisprudence, the authors acknowledged that this does not mean non-citizen long-term residents, including stateless persons, can never be deported as the seriousness of offending may outweigh the interference with rights due to deportation (p. 576). However, the authors suggested that the jurisprudence indicated that the traditionally wide discretion accorded to states in such matters has been ‘conditioned and restricted’ in significant ways due to international and regional human rights instruments.

Ryan Liss, ‘A Right to Belong: Legal Protection of Sociological Membership in the Application of Article 12(4) of the ICCPR’ (2014) 46(1) New York University Journal of International Law & Politics 1097

• Liss observed that Warsame v Canada adopted a broad interpretation of article 12(4), which focused on individual’s sociological membership as opposed to solely formal or legal membership, to determine whether a non-national may have a right to remain on a state’s territory (p. 1098). The author posited that this approach is consistent with the travaux préparatoires of the ICCPR, emerging human rights oversight that restricts state discretion over migration governance, and broader trends in international law regarding national membership and belonging being underpinned by protection for sociological belonging (pp. 1158-1161).
• However, Liss raised concerns regarding the potential dangers of two-tier nationality, the uncertain application of the approach to undocumented migrants, and overall vagueness of the threshold set by the HRC (p. 1179-1184). Liss proposed that there should be constraints on what constitutes one’s ‘own country’ in practice by restricting claims under article 12(4) to those who arrived in the country of residence at a young age (p. 1188).

Benjamin Perryman, ‘Citizenship, Belonging, and Deportation’ (2023) 11(1) Canadian Journal of Human Rights 91

• The author observed that Warsame v Canada is an example of state non-compliance with international law (p. 113). Of particular importance was the HRC’s recognition of a broad sociological test for determining whether a country is a person’s ‘own country’ for article 12(4). Perryman expressed concerns about Liss’ proposal that article 12(4) should be limited to individuals who arrived in the country of residence at a young age, as significant establishment and sociological attachment may also develop from familial, social, educational, employment, linguistic or religious connections (p. 113-114).
• Perryman also postulated that migration governance is no longer solely within the purview of states, even when it comes to deportation (p. 129). States’ unilateral control over migration has been challenged by a ‘multi-scalar governance model that incorporates local communities, nation-states, and international treaty bodies’. The author asserts that states retain significant legal authority to deport non-citizens within this model, but are supervised by international human rights. This conception of nationality linked to sociological connection to place rather than formal citizenship however depends on a state’s willingness to comply with international law.