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Admissibility

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Criminal Inadmissibility

Under the Immigration and Refugee Protection Act (IRPA), a person may be found criminally inadmissible for offences committed inside or outside of Canada. Foreign nationals applying for temporary or permanent residence have a different standard than permanent residents who are already in Canada.  A foreign national will be inadmissible and denied entry to Canada on the basis of simple “Criminality”.  A permanent resident of Canada will lose status and be removed from Canada only if found inadmissible due to “Serious Criminality”.

1. 1. Serious Criminality 
      • • you have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years (regardless of whether this penalty was imposed), or you have been sentenced to at least 6 months of imprisonment (regardless of any maximum term by which the act is punishable).

you have committed or have been convicted of an offence outside Canada that is an offence in that country, and that in Canada would constitutes an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

2. Criminality: 

• • • • you have been convicted of an offence in Canada that constitutes an indictable offence, or two offences (not arising from the same occurrence) under an Act of Parliament; the same applies if convicted outside of Canada of equivalent offences.
      • you have committed an offence outside Canada that is an offence in that country, and that in Canada would constitutes an indictable offence. 

Some criminal offences can be prosecuted either summarily or by indictment, and these are referred to as “hybrid” offences.  For the purposes of immigration law, if you are convicted of a hybrid offence, it will be considered an indictable offence. A permanent resident who is found to be inadmissible for serious criminality can lose permanent residence status.  Not all criminal convictions result in inadmissibility and the assessment of criminality and serious criminality requires very careful analysis.  There are also certain circumstances where there may be no finding of criminality or serious criminality; for example, if the offence was committed when you were a minor, if there was a conditional or absolute discharge or a record suspension (pardon), among others, and these circumstances must be closely examined. Inadmissibility cases are highly complex and must be handled with expertise. If you are concerned that you may be found inadmissible, we can help you with the legal analysis, and if you have already been found to be inadmissible, we can identify the best course of action, which may include applying for a Temporary Resident Permit or Criminal Rehabilitation.  

 

Medical Inadmissibility

All permanent resident applicants and certain temporary resident applicants are required to complete a medical examination. This is to determine whether there are any serious medical issues that will result in one of the following:

1. 1. Danger to public health (infectious diseases)
   2. Danger to public safety (mental health or addiction issues which may cause unpredictable or violent behaviour)
   3. Excessive demand on Canada’s health or social services (high costs and burdening the health care system, resulting in longer wait times for Canadians). This assessment is forward-looking, making a prediction of the demand that an applicant is likely to cause in the next 5 (or 10) years. While a monetary threshold is established each year, this is only part of the assessment.

Spouses and dependent children being sponsored by a Canadian are exempt from medical inadmissibility due to excessive demand, as are refugees and protected persons.

After you complete a medical exam, if the Designated Medical Practitioner (DMP) identifies a problem, you will likely be requested to do further medical examinations.  If the DMP and immigration officer believe that you are medically inadmissible for one of the reasons above, you will be given an opportunity to respond and provide documents in support of your case before a final decision is made. This is your opportunity to show Immigration, Refugees and Citizenship Canada (IRCC) why you or a family member should be allowed to enter and will determine the outcome of your application. If the applicant or any dependent is found inadmissible, the rest of the family will too.  For example, if a dependent child is found to be medically inadmissible, the parents and other siblings will also be refused. It is crucial to identify key relevant evidence that may counter a finding of medical inadmissibility and present detailed legal arguments to support your case.  We have solid experience in handling cases of medical inadmissibility and would be happy to assist you. 

 

Misrepresentation

Misrepresentation occurs when false or misleading information is stated or information is omitted from an application which may affect a decision, whether made directly or indirectly, intentionally or unintentionally. Under Canadian immigration law, this is considered a very serious offence as lies and fraud affect the integrity of the entire system.  You may have confused dates of past events, misread a question, or inadvertently ticked “yes” instead of “no” on a form, and unfortunately this is very often grounds for misrepresentation. Similarly, as omissions are also considered misrepresentation, if you failed to disclose information on an application that may have had an impact on the decision, you can also be found inadmissible for misrepresentation. For example, if a form asks you to list any previous refusals to visa applications, and you leave the section blank, if the officer discovers you were in fact refused in the past, you may be accused of misrepresentation. Under the Immigration and Refugee Protection Act (IRPA), it is stated that:

1. 1. A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

A finding of misrepresentation results in a 5-year bar to Canada. For this reason, it is very important to be attentive to detail and thorough when submitting information to Immigration, Refugees and Citizenship Canada (IRCC) to avoid these very serious consequences. If you receive a “procedural fairness letter” during the processing of your application asking you to address a potential finding of misrepresentation, this is your only opportunity to present evidence and defend yourself and this should be handled by a professional. If you already received a decision but believe the officer made a mistake, you may be able to file an application for Leave and Judicial Review at the Federal Court, or in certain cases, file an appeal with the Immigration Appeal Division. 

If there are no grounds to overturn the decision and you are subject to a 5-year bar, the only way to enter Canada is by applying for a Temporary Resident Permit, but this is only issued for very compelling reasons. We have over two decades of experience in immigration and we encourage you to contact us to learn more about your options. 

 

Security, Organized Crime, and Others

Under the Immigration and Refugee Protection Act (IRPA), a person may be found inadmissible to Canada on grounds of Security for any of the following:

• • engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;
  • engaging in or instigating the subversion by force of any government;
  • engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;
  • engaging in terrorism;
  • being a danger to the security of Canada;
  • engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
  • being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage, subversion, or terrorism.

The Canada Border Service Agency (CBSA) must have “reasonable grounds to believe” someone is inadmissible on national security grounds, which could be based on expert opinions, police or intelligence reports, media articles, testimonies, and other factors. A person could be inadmissible if suspected of planning to commit an act. These allegations are extremely serious and you should seek professional assistance to address the situation. 

 

Failure to Comply with the Act 

Inadmissibility for non-compliance with the Act is a very broad category of inadmissibility for any act or omission that is contrary to the Immigration and Refugee Protection Act.  This includes:

• • Entering Canada to remain on a permanent basis without first obtaining a permanent resident visa or entering Canada to remain on a temporary basis without first obtaining a temporary resident visa.

• • Entering Canada to study or work without first obtaining a study or work permit (except where permitted). Studying or working without authorization while in Canada.

• • Not answering questions truthfully or producing required relevant documents.
  • Failing to appear for a hearing or for examination.

• • Not holding the required documents to enter Canada.

• • Returning to Canada without authorization after deportation or within 12 months of exclusion.

• • Remaining in Canada beyond the period authorized (overstay).

• • Being a permanent resident and not complying with the residency requirement.
• • Others

 

Working or Studying without a Permit

Most people who wish to work or study in Canada require a permit to do so. There are a few exemptions, for example if you are studying in a course which lasts less than 6 months, or if you are conducting business activities in Canada solely as a business visitor. We encourage you to consult a professional about your situation to determine whether one of the exemptions applies to you. 

There are cases where a person initially held a study or work permit, and continued to study or work beyond its expiry date. Unless you applied for an extension of your status before it expired (giving you “implied status”), any study or work done at that point is considered illegal under the Immigration and Refugee Protection Act (IRPA). Similarly, if you are on an employer-specific work permit, you cannot legally work elsewhere without obtaining authorization. A finding that you studied or worked illegally can result in an exclusion order, which means you may be barred from Canada for 1 year, and this may affect future applications. Even if you are not subject to an exclusion order, you may also be barred from obtaining a new study or work permit for 6 months.  

Do not allow your work or study permit to expire if you plan to keep working or studying. If you do not think it can be renewed, we encourage you to contact us to explore other avenues that may work for you. If you end up working or studying without permissions, we can also assist to explain your situation and to regularize your status.  We specialize in unique and complex circumstances.

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