Security & Other Inadmissibilities
Are you inadmissible to Canada?
Is this inadmissibility based on security, human and international rights violations or organized criminality?
The primary grounds for inadmissibility in the criminal context are set out at sections 34 – 42 of the Immigration and Refugee Protection Act (IRPA). With respect to inadmissibility on grounds of security (section 34), human and international rights violations (section 35) and organized criminality (section 37) we outline various considerations below. Please note that for the purposes of inadmissibility “permanent resident” refers to any individual who has acquired and not subsequently lost permanent resident status. “Foreign national” refers to any person who is not a Canadian citizen or permanent resident, and includes a stateless person.
Who is inadmissible?
Section 34
The IRPA states that inadmissibility on security grounds may result where it is determined that a permanent resident or foreign national is: engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;
a) engaging in or instigating the subversion by force of any government;
b)engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;
c) engaging in terrorism;
d) being a danger to the security of Canada;
e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c)
Espionage under subsection 34(1)(a) refers to the practice of gathering information by spying, usually seeking information from a hostile country to benefit one’s own country. “Subversion” under subsection 34(1)(b) is the act of overturning or overthrowing a organization through illicit or improper means. “Democratic” under subsection 34(1)(b.1) refers to government by the people. Finally, “terrorism” under subsection 34(1)(c) relates to use or threats of acts of violence against persons or property with the intent of achieving some political objective. The purpose of terrorism is, by its nature or context, understood to be to intimidate a population or to compel a government or an international organization to abstain from some action.
Section 35
Permanent residents or foreign nationals may be found to be inadmissible for human or international rights violations for the following reasons:
a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;
c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association;
d) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Special Economic Measures Act on the grounds that any of the circumstances described in paragraph 4(1.1)(c) or (d) of that Act has occurred; or
e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
For reference, “terrorism” under subsection 35(1)(b) holds the same definition as under 34(1)(c), as set out above. “Crimes against humanity” under subsection 35(1)(b) refers to those acts defined under section 6(3) to (5) of the Crimes Against Humanity and War Crimes Act, including murder, extermination, torture, sexual violence and deportation committed against a civilian population or identifiable group. “Genocide” under subsection 35(1)(b) refers to actions taken to destroy an entire group of persons, as defined under international law. Finally, “war crime” under subsection 35(1)(b) refers to acts or omissions committed during an armed conflict, as defined under intentional law or conventional international law applicable to armed conflicts.
Section 37
Finally, findings of inadmissibility on grounds of organized criminality may be made against permanent residents or foreign nationals for:
a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or
b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.
“Transnational crime” under subsection 37(1)(b) refers to offending that extends beyond or operates across national boundaries.
Section 42.1(1)
Please note that, pursuant to section 42.1(1) of the IRPA, following an application by a foreign national, the Minister may declare that the matters referred to in sections 34, 35 and 37 do not constitute inadmissibility in respect of a foreign national if they satisfy the Minister that it is not contrary to the national interest.
Determination Process
Assessments of whether a non-citizen fits within one of the above categories must conclude that there are reasonable grounds to believe that the acts under investigation have occurred, are occurring or may occur. This test requires that information referred to in support of the decision is specific, credible and from a reliable source.
Determinations of inadmissibility under sections 34, 35 and 37 are under the purview of the Canada Border Services Agency (CBSA). Officers of the CBSA may take into consideration a variety of information in assessing inadmissibility. For findings of inadmissibility under section 34, the officer may collect the following types of evidence:
- police or intelligence reports;
- statutory declaration supported by evidence of statements made to an officer;
- media articles, scholarly journal articles, expert evidence;
- weapons or documentation in the person’s possession that indicate planned violence (for subsection 34(1)(e)); and
- Any public information that establishes the propensity for violent acts by the individual.
For assessments under section 35, officers may collect any of the following information:
- Statutory declaration supported by evidence that establish that the person concerned committed an act that constitutes a war crime as defined under international law;
- Evidence that the act committed is contrary to international law or convention; and
- Media articles, scholarly journal articles, expert evidence.
Finally, for assessments under section 37, officers of the CBSA may collect the following types of evidence:
- police or intelligence reports;
- statutory declaration supported by evidence of statements made to an officer;
- proof that the alleged organization is involved in criminal activity; and
- media articles, scholarly journal articles, expert evidence.
Overcoming Inadmissibility on These Grounds
Findings of inadmissibility under sections 34, 35 and 37 have serious ramifications as there is no right of appeal for permanent residents or foreign nationals under subsection 64(1) of the IRPA. These decisions may be challenged to the Federal Court of Canada in some instances. Please contact our office for further information and how we may be able to address inadmissibility under sections 34, 35, and 37 of the IRPA.
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