Corporate Services – Inadmissibility
REFUSED BASED ON CRIMINAL INADMISSIBILITY?
Having a criminal record can make international travel and migration difficult. This is no less true in the context of Canadian immigration. For those applying to enter Canada on a temporary or permanent basis, having a criminal record can potentially result in criminal inadmissibility as well as an unsuccessful application. Additionally, for individuals already in Canada with temporary or permanent resident status, being convicted of a crime in Canada can result in status revocation and removal from the country. If this occurs, the individual will be unable to return until the convictions have been removed from their record or a temporary resident permit is obtained.
Article 36 of the Immigration and Refugee Protection Act (the Act) sets out the circumstances in which a foreign national or permanent resident would be considered inadmissible, whether convicted inside or outside of Canada. It also addresses situations of possible consideration to overcome criminal inadmissibility, inclusive of: being deemed rehabilitated, applying for rehabilitation to Citizenship and Immigration Canada, and obtaining a pardon or record suspension.
With respect to convictions that occur inside of Canada (according to the Act), there is no option to be deemed rehabilitated or to apply for rehabilitation. In most cases, the sole recourse is to obtain a record suspension (formerly referred to as a pardon) from the Parole Board of Canada (PBC).
Prior to 2012, getting a record suspension from the PBC was relatively easy and inexpensive. However, in 2012, changes to the Criminal Records Act came into force, making obtaining a record suspension in Canada more difficult. Among the more significant changes were quadrupling application fees (from $150 to $631, even for less serious offences) and a considerable increase in the waiting period before a person would be eligible to apply for a record suspension after completing their sentence.
Unsurprisingly, these changes resulted in a staggering drop in the amount of record suspension applications received by the PBC. Compared to 2011-2012 levels, the amount of applications received last year dropped by over fifty percent.
Many critics have called these changes punitive and disproportionate because the old system was generally considered to be working fine. To wit, the recidivism rate for individuals who obtain record suspensions was last measured to be less than 1 percent.
However, good news may be on the way for those people (including foreign nationals and permanent residents) with Canadian criminal records seeking a second chance through obtaining a record suspension as the changes made in 2012 may soon be reversed.
It remains to be seen what changes will be implemented by the new government and when these changes will occur; a reduction in fees and waiting times is expected, along with a return to the term “pardon”.
For more information on Criminal Inadmissibility, please click here.
Should a critical employee be deemed inadmissible and denied entry/removed from Canada, our team at Bellissimo Immigration Law Group can help you. We have extensive experience with criminal cases. We are familiar with the legal processes that would allow your employee to overcome this inadmissibility.
A foreign national or permanent resident is deemed criminally inadmissible after being convicted under any Act of Parliament, with the most prevalent being the Criminal Code of Canada (CCC) andthe Controlled Drugs and Substances Act.
For more information on how Bellissimo Immigration Law Group PC can assistwith your criminal inadmissibility, please select one of the following:
- When Is Someone Criminally Inadmissible?
- Key Legislative Definitions and Legislative Thresholds
- Humanitarian Applications
- Enforcement
- Practical Tips
Mario D. Bellissimo is the Co-Author of a publication which provides a comprehensive analysis of the legislative framework and the jurisprudence in the areas of immigration and criminal law, and their intersection.
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Important Immigration Court Decisions
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I have been told by a lawyer that I could get a work permit for my type of job. It is in high demand. I do not have any papers and cannot afford the process right now more in terms of time and also cost. I am working and doing okay so how long can I wait? If you publish this question please do not list my name or my job. Thank you.
Your question reminds me of people in the United States who for reasons of accessibility – cost, time – do not get the medical attention they need and conditions that are minor become very serious, if not fatal. The same holds true in your case. You are here without status but it appears you would qualify for a work permit and make a welcome addition to Canada. If you wait though, your chances of becoming inadmissible to Canada and subject to enforcement (removal) by the Canada Border Services Agency becomes very high. If being in Canada is important to you make the time to do things right. Most reputable lawyers have payment plans and will work with you to ensure your case receives the immediate attention it deserves. Do not become one of those bad immigration stories where people wonder how someone who can make an important contribution is being deported. I cannot tell you how many times in my career I have been saddened by good people in major trouble who I wished came in to see me a few months before. I would imagine that is also how doctors feel from time to time. Good luck!
Although a Canadian citizen I am very interested in immigration law and the flow of people to our country. I read your column with much interest. What do you make of these 41,000 missing illegal immigrants listed in the Auditor General’s Report? How many of these people have criminal backgrounds?
Illegal documented immigrants include rejected refugee claimants or Humanitarian and Compassionate (H&C) applicants or those who hold an expired work, study or visitor permit but have remained in Canada and gone “underground”. Undocumented persons are those who do not hold any identity documents, including people who were trafficked illegally into Canada for various purposes. Estimates on the number of undocumented persons range from 10,000 to 200,000 and as high as one million. Recent testimony from the Canada Border Services Agency (CBSA) before the Standing Committee on Immigration indicated that about 8% of those in the working inventory who are ready for removal have criminal backgrounds. So a percentage, but I would suspect a low percentage of these 41,000.00 have criminal backgrounds. The last fiscal year the CBSA spent about $23,433,000 on the removals program. For more info visit my website, under my blog Ask A Specialist. Thank you for your question.
I applied for permanent residency from within Canada, and my teenager son was part of my application. We were found to be inadmissible, because my son had a conviction for “theft under $5000”. We were devastated, as we made Canada our home, all our relatives are here, we bought assets here, etc. We applied for and were granted leave at the Federal Court of Canada. At the judicial review in Court, our case was sent back to the visa office for re-determination. Meanwhile, our son was sent back home, to our country of origin, because of his conviction. At the re-determination, our case was refused again. I applied again for leave and I was told that my file will be sent back for re-determination, on a priority basis. How long does it take for re-determination and how can my son return to Canada?
There is no set time period for a re-determination as it depends on the number of applications, staff at the respective visa office, priority of the case, etc. But, I would assume it will take a couple of months to have your case re-assessed, analyzed and re-determined. I assume that your son is still dependent on you (financially – in school), and therefore, you most likely will have to request a TRP (temporary resident permit), including your son in the application as well. After a certain period of time after his sentence is completed, he may apply for a pardon of his conviction in Canada. It is not an easy or fast procedure. Once the pardon is granted and his record is clean, you then have to apply for permanent residency. Until then, you will all be inadmissible and require TRPs to remain in Canada. As your case is not simple, I would suggest that you seek the advice of a counsel.
LATEST IMMIGRATION COURT DECISIONS
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- JEYALOLIPAVAN V. CANADA (2013 FC 199)
KEY PARAGRAPHS: 28, 29, 30, 31 - CARAAN V. CANADA (2013 FC 360)
KEY PARAGRAPHS: 42, 43, 51, 55 - PADILLA V. CANADA (2013 FC 247)
KEY PARAGRAPHS: 56, 60, 86, 87, 88 - AZADI V. CANADA (2012 FC 1163)
KEY PARAGRAPHS: 38, 39, 40, 41 - FINTA V. CANADA (PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) (2012 FC 1127)
KEY PARAGRAPHS: 44, 45
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- CANADA (MINISTER OF CITIZENSHIP AND IMMIGRATION) V. HARKAT (2014 SCC 37)
KEY PARAGRAPHS: 60, 73, 76, 90, 93, 99, 110, 111, 112 - OKOMANIUK V. CANADA (2013 FC 473)
KEY PARAGRAPHS: 27, 78, 34, 35 - GHAFFARI V. CANADA (2013 FC 674)
KEY PARAGRAPHS: 22, 23 - K. (T.) V. CANADA (2013 FC 327)
KEY PARAGRAPHS: 111, 117 - HABTEAB KFLESUS V. CANADA (2011 FC 1214)
KEY PARAGRAPHS: 95, 96, 97 - KHALIL V. CANADA (2011 FC 1332)
KEY PARAGRAPH: 58 - PEREZ VILLEGAS V. CANADA (2011 FC 105)
KEY PARAGRAPHS: 42, 48, 49, 51, 57, 58 - SHANMUGASUNDARAM V. CANADA (2010 FCA 900)
KEY PARAGRAPHS: 30, 31, 40 - GEBREAB V. CANADA (2010 FCA 274)
KEY PARAGRAPHS: 30, 32 - TORONTO COALITION TO STOP THE WAR V. CANADA (PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) (2010 FC 957)
KEY PARAGRAPHS: 145, 148, 157
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