Criminal inadmissibility

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Do you find yourself unable to visit Canada because of a criminal record? Have you been blocked from immigrating to Canada due to a criminal conviction? Do you fear that an offence in your history might negatively affect your application? If so, did you know that there are ways to overcome your criminal inadmissibility? You may be able to enter, visit or move to Canada. Keep reading to find out more.

Overview

Immigration, Refugees and Citizenship Canada (IRCC) handles all immigration cases according to Canada’s immigration laws. The Immigration and Refugee Protection Act (IRPA) is the section of Canadian law that deals with all immigration cases. If you are found inadmissible to Canada it will be because you do not qualify under one or more parts of the IRPA.

Those who are convicted of offences are considered criminally inadmissible. This means that they cannot be granted temporary or permanent residence. Depending on your situation, there may be some pathways to overcoming criminal inadmissibility in Canada.

Inadmissibility

Inadmissible is the word given to any foreign national who is not allowed to enter Canada. This can be for medical, security, criminal or any other reason. If you are inadmissible to Canada, any visa you apply for will be rejected. You can also be turned away at the border or at any port-of-entry.

When a Canadian immigration officer is deciding if you can enter Canada, they will review your history and circumstance against Canada’s immigration laws. Anyone in violation of any requirements is inadmissible.

Reason for inadmissibility

There are many reasons why a foreign national could be inadmissible to Canada.

Security Reasons

             Espionage, violence or terrorism

Medical Reasons

            Being a danger to public health or safety

Human or international rights violation

             War crimes, crimes against humanity

Financial Reasons

             Unable to support yourself or dependents financially

Criminally Inadmissible

              Committing a crime

Having an inadmissible family member

In this article, we are focusing on criminal reasons. In short, anyone with a history of criminal activity is inadmissible. If you have a history of such activity, you may have a difficult time attempting to gain a Canadian visa.

Criminally inadmissible

As you can see from this table, anyone who has committed a crime could be found inadmissible to Canada. This is called criminal inadmissibility. If you have been convicted of a crime outside of Canada, the Canadian equivalent of that crime will be applied to your situation. So, it will be looked at as if it happened in Canada. This means the kind of penalty you would have gotten if the crime was done in Canada will also be looked at.

You are Criminally Inadmissible to Canada if:

  • You were convicted of an offence in Canada
  • You were convicted of an offence outside of Canada that is considered a crime in Canada
  • You committed an offence in a country where it is a crime and could be punishable under Canadian law

The good news is, even if one or more of the above applies to you, you may not be inadmissible forever. If your offence has been pardoned or discharged, you may not be inadmissible to Canada.

Note: If you are unsure if this applies to you, contact us to be individually advised.

For charges withdrawn or dismissed:

·         If the Offence was in Canada, you are not inadmissible

·         If the offence was outside of Canada, you may be inadmissible

For an absolute or conditional discharge:

·         If the offence was in Canada, you are not inadmissible

·         If the offence was outside of Canada, you may be inadmissible

Pardon granted:

·         If the offence was in Canada, you are not inadmissible (if you were pardoned under the Criminal Records Act)

·         If the offence was outside Canada, you may be inadmissible

As the above table shows, if the offence is withdrawn, dismissed, discharged or pardoned within Canada, then you are no longer inadmissible. If the offence happened outside of Canada, that might not help your case. Therefore, where the offence occurred is very important in all criminal matters.

Overcome Criminal Convictions: Rehabilitation

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In Canada, there are certain conditions in which a temporary resident or applicant for permanent residence can overcome their criminal inadmissibility. Being deemed rehabilitated suggests that you are living a good life and are not likely to be involved in any criminal activity in the future. Being deemed rehabilitated in Canada means that you are no longer inadmissible to Canada. It has been long enough that you are assumed to not commit another crime.

Deemed Rehabilitated

Being deemed rehabilitated depends on the crime that was committed, how long ago it was, how many crimes you committed and if it occurred outside of Canada. You will need to show the immigration official processing your application that you deserve to be deemed rehabilitated. If the crime was committed outside of Canada, and the maximum sentence for the crime is over 10 years, you will not be eligible for rehabilitation.

Eligibility to apply for Rehabilitation

If it has not yet been 10 years since the completion of your sentence, you may be eligible to apply for rehabilitation. After 5 years have passed since the completion of your sentence (or probation), and the day the crime occurred, you can apply for rehabilitation. You must show that you are unlikely to commit another crime.

If it has not been enough time for you to qualify for rehabilitation, you can still apply for rehabilitation. The processing officer will decide if you should be granted special permission to come to Canada. This is usually only considered when the applicant needs to come to Canada for an emergency or pressing reason. Whether you are given special permission will depend on your record, the crime, how long ago it was, the reasons you are coming to Canada etc.

Application Process

When you decide the immigration pathway that you will apply for, you must submit the application for criminal rehabilitation at the same time. In other words, you will submit the forms required for criminal rehabilitation with your application for a study permit, work permit or visitor visa, etc. If you are from a country that will require you to apply for an eTA to enter Canada, submit your application for criminal rehabilitation before you apply for the eTA.

The immigration officer at your respective visa office will review your application and forward it to the authorities who make decisions on rehabilitation. The first officer will send your application with either a positive or negative recommendation.

Once the decision is made, you will receive the results of the decision in writing.

Note: Remember, you will be reviewed for eligibility of rehabilitation as well as a visa, or residence separately.

Fees

Processing fees are not refundable. If your application is not approved, the funds will not be returned to you. Your application also cannot be processed until the fees have successfully been received.

Fees

$CAN

Inadmissible on the grounds of criminality

200

Inadmissible on the grounds of serious criminality

1,000

 

Note: We highly recommend the use of an experienced RCIC or Canadian immigration lawyer as the processing fees are non-refundable. If your application is not approved and you wish to apply again, you will need to pay new processing fees in full for each new application attempt. Therefore, it is important to submit a thorough and well-prepared application.

Required Documents

Required Forms

  • Application for Criminal Rehabilitation (IMM 1444)
  • Use of a Representative (IMM 5476), if applicable

Photocopied Documents

  • Information page of passport
    • US citizens only: a copy of driver’s license and USA birth certificate if you don’t have a passport
  • Each court judgment made against you
  • The foreign or Canadian laws that you were charged or convicted with
  • Any documents relating to sentence imposed, parole, probation or pardon

Original Documents

  • A criminal clearance from the police authorities in all countries that you have lived for longer than 6 months since turning 18 years of age
  • For US citizens: a state certificate for each state that you have lived for 6 consecutive months since reaching 18 years of age and a national FBI certificate
  • For juvenile offenders: a letter or document proving that the country you were convicted in has special measures for juveniles
  • If applying from within Canada: Fee for Immigration Service, Approval of Rehabilitation (IMM 5310)
  • If applying from outside Canada: Provide internet receipt

Conclusion

Many people mistakenly believe that once an old conviction has been obsolete or expunged from their record, they will not have any issues. Some even go as far as denying that they have a criminal record to IRCC, whether it be in the documentation they provide or during an interview. For example, many IRCC forms ask the following question: “Have you ever committed, been arrested for, or been charged with or convicted of any criminal offence in any country or territory?” A person who has had an arrest, charge or conviction expunged or deleted from their record must reply “Yes” to this question, even if they currently have a clean record. Otherwise, it could result in a finding of inadmissibility for misrepresentation. If you have a criminal record and you are interested in applying for a visa, permit or immigration to Canada; or if your application to Canada was denied due to criminal history, we highly recommend that book a consultation with our Canadian Citizenship and Immigration Consultant. We can help you find a proper, legal solution.

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