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Articles/q&a

Enforcement & Inadmissibility

Before proceeding with any application or travel to Canada, you should always check the current entry requirements related to COVID-19, which are continuously evolving and may affect your circumstances.

I sponsored my husband for permanent residence by applying under the Inland Sponsorship category. As he was here without status, he was deported back to China recently. Will his application be refused and if so, can we re-apply?

As your husband is no longer eligible for the inland spousal category, you should withdraw the application and start a new application to sponsor him from China. In addition to providing all of the required documents and demonstrating that your marriage is genuine and not entered into for the purpose of obtaining permanent residence or other status, your husband will likely have to apply for Authority to Return to Canada (ARC). ARC is required for any person who has been removed from Canada based on a deportation order.  You and your husband should obtain proper legal advice to ensure that the application is properly prepared. As it is not clear whether your husband was removed based on a departure, exclusion or deportation order, he should provide a copy to counsel who assists him in his future application.

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My son is studying at University of Western Ontario in London and he received a telephone call from a man saying that he was an immigration officer. The officer said that my son was under investigation and would be deported if he did not send a money transfer to him. What should we do?

Unfortunately, there have been several scams relating to foreign students in the past couple of years. IRCC has recently warned that a scam of this nature has re-appeared, and that IRCC will never contact a student in person, online, or by telephone to collect fees or fines and say it’s to avoid deportation or face other consequences. Your son should report this to the RCMP, and can do so by calling 1-888-495-8501.

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I would like to sponsor my father to come to Canada but he has a criminal record in China. I have spoken to several immigration consultants who have said that anyone with a criminal record cannot apply for permanent residence in Canada but I saw on the Canadian Immigration website that some people can still qualify. How do I know if he can qualify or not?

Not all people with criminal records are inadmissible to Canada. Whether they are criminally inadmissible depends on the criminal offence, or offences, for which they were convicted.  Generally speaking, the more serious the offence the more likely the applicant will be criminally inadmissible to Canada, but the determination of criminal inadmissibility is actually somewhat complicated. First, a legal determination must be made whether the offence in China is equivalent to an offence in Canada. Depending on the Canadian equivalent and the maximum sentence for that offence in Canada, the applicant may be able to apply for rehabilitation depending on the seriousness of the offence, the amount of time that has passed since the conviction and the completion of any sentence for the conviction. For some applicants, even if rehabilitation is not available, an application for a Temporary Resident Permit (TRP) could be made which allows inadmissible applicants to enter Canada for compelling reasons. It is very important to obtain an accurate legal opinion on criminal inadmissibility, the requirements for rehabilitation, and the availability of a TRP. You and your father should obtain legal advice based on your father’s specific conviction(s).

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I have had a long history of chronic pain which I have been prescribed several different medications. Recently, I was prescribed medical marijuana and I have found that it is quite helpful and certainly better than any previous medical I have tried. I am planning on travelling to the Nevada in the United States, where marijuana is also legal and I would like to know if there is any issue if I bring my marijuana with me when I travel. 

Although cannabis is now legal in Canada, it is still illegal to cross the Canadian border with marijuana, whether entering or exiting the country. Crossing the border with marijuana is a criminal offence regardless of the amount of marijuana you have, whether or not you have a medical prescription and whether the place you are travelling to or from allows it. Many travellers simply purchase and use marijuana once they arrive to the destination where it is legal, and make sure they do not possess any upon departure. Please be very careful and note that if you are travelling to a place where you believe marijuana is legal, you should properly investigate the laws regarding the purchase, possession and use of marijuana there, and make sure you always comply with the law. 

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Our company hired an employee from China who arrived at the airport yesterday. We had applied for a work permit for him, and he had received the approval from the embassy in Beijing. But even though he had the approval letter, the officer at the airport questioned him extensively, and decided that he was not a genuine employee. He was asked to leave Canada and now we do not know how to help him. Can the officer refuse to let him in like that?

The officer at the port of entry has the final say on whether to issue a work permit to an applicant. Although the embassy has approved the work permit, the officer at the airport must have had some doubt about the employee’s intentions, background or ability to perform the work. You should ask your employee to provide you with full details about the questions asked, his answers, and any documents provided. From your description of events, it appears that the officer issued a removal order against your employee, so a further application will need to be done if you wish to bring him back. You should obtain proper legal advice as soon as possible to examine options.

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I received an Invitation to Apply and am preparing an application for permanent residence under Express Entry. I separated from my husband, but our divorce will not be final for another few months. As part of the application package, I have to include information about my husband, but I do not want him to have to complete a medical or provide criminal clearances because: 1. We are not speaking to each other; and 2. He has a criminal record. Will my husband’s failure to cooperate and criminal record make me inadmissible? I am so worried.

All dependents are expected to be examined which means completing police clearances, medical examinations and background checks, including a spouse. Failure to have a spouse examined can sometimes lead to a refusal for failing to satisfy an officer that dependents are admissible. If a dependent is uncooperative, you should provide detailed information about the situation to convince the officer to waive the requirement for an examination. 

As you will likely obtain your divorce during processing, this should not be an issue if handled properly. Generally, a dependent who is inadmissible for any reason will render the principal applicant and any other dependents also inadmissible. In the case of a separated spouse, however, if you can demonstrate that your relationship has “broken down in law or in fact”, you will not be considered inadmissible. You should obtain more detailed legal advice on this issue to ensure that all of the facts and information are properly considered prior to completing your application.

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I applied for permanent residence as a Federal Skilled Worker and I included my husband on the application. My husband was previously married and has a son who is 18 years old who lives with his mother. Recently, we found out that his son has had some trouble with the law and we are not sure if this will affect our application for permanent residence.

Canadian immigration law requires all family members, as defined by law, to be examined, whether they are accompanying the applicant or not. Dependent children such as your husband’s son, are required to be examined, which means he should complete a medical examination and provide a police clearance (as he has reached the age of 18). If he was convicted of an offence which is equivalent to an indictable offence in Canada or two or more offences not arising out of a single occurrence in Canada, he would be considered criminally inadmissible. Under normal circumstances a dependent child who is inadmissible renders the parent inadmissible, which would mean that both your husband and you would also be considered criminally inadmissible. However, if your husband did not have legal custody of his son (you mentioned his son was living with his mother) or if your husband had no legal power or authority to act on his behalf, then the son’s inadmissibility will not affect you. These types of cases can be very complicated, and you and your husband should obtain proper legal advice from a lawyer as soon as possible to address this issue.

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I am a permanent resident and was convicted of a criminal offence several years ago. I was ordered deported and later appealed to the Immigration Appeal Division. At my appeal hearing, the member ordered that my deportation order be stayed for a period of three years which will be finished in December of this year. Everything was fine until a few weeks ago when I was arrested again. I am fighting this charge but I would like to know if I will be deported if I am convicted.

When a permanent resident receives a stay of removal from the Immigration Appeal Division (IAD), there are mandatory and discretionary terms and conditions that s/he must abide by during the stay period. One of the mandatory terms is that you are not convicted of another criminal offence. Depending on the seriousness of the offence, you could have your stay be revoked and be required to appear before the IAD for another hearing. More importantly, if the charge is serious, you could also have your original appeal terminated resulting in the deportation order becoming enforceable with no further appeal. You should contact an immigration lawyer immediately so that your criminal lawyer can consider the immigration consequences of a further conviction and discuss whether a conviction on your current charge could lead to the appeal being terminated, resulting in your removal from Canada. It is extremely important not to plead to a charge until you have been properly advised about both the criminal and immigration consequences of a conviction.

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I have a relative who was deported from Canada many years ago as he committed a crime in Canada. Recently, his application for a pardon was approved and he no longer has a criminal conviction. Can he come back to Canada?

As your relative was deported from Canada due to criminality, he has to first confirm that he is no longer criminally inadmissible and then he must apply for Authorization to Return to Canada (ARC). As he has apparently received a record suspension (formerly referred to as a pardon), he is likely no longer criminally inadmissible, unless there are other convictions not covered by the record suspension, whether in Canada or abroad. To obtain an ARC, he will have to demonstrate that he has a valid reason to return to Canada such as a sponsorship application or a strong reason to visit. Then he will need to convince the officer to allow him to return to Canada despite his previous behaviour and deportation. This will require him to provide information and documents to explain the previous behaviour and the circumstances of crime, what efforts he has made to change the behaviour, the risk of future violations, the length of time that has passed and compelling reasons to return to Canada. As these applications are complex and require careful preparation, he should obtain proper legal advice from an immigration lawyer with experience in inadmissibility and enforcement cases.

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I applied for refugee status over five years ago, and my claim was denied. I have now been given a chance to apply for a Pre-removal Risk Assessment (PRRA). I disagree with the reasons for my claim being refused – can I make some arguments on that in my PRRA? 

A Pre-removal Risk Assessment (PRRA) is not an appeal of your refugee claim. If there were errors in the original refugee decision, you had the right to appeal to the Refugee Appeal Division (RAD) and even to subsequently apply to the Federal Court for leave and for judicial review. The purpose of the PRRA is to give you one last chance to demonstrate that you are currently personally at risk if removed to your home country based on new evidence. You cannot rely on evidence that was available or should have been reasonably obtained at the time of your refugee claim. You must provide only evidence that became available or obtainable after the refusal of your claim. Having said that, you can certainly include information to refute the findings of the Refugee Division if you have further evidence to support the current risk you face. There are also several other requirements or restrictions in applying for a PRRA, including that the risk you face cannot be faced by everyone in the country, and cannot be a risk faced due to lack of medical care. PRRA cases can be complex and you should obtain proper legal advice from an experienced immigration lawyer. As there is a firm deadline on PRRA cases, you should take action immediately. 

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My friend was driving and got pulled over by the police for speeding. They found out he had a warrant for his arrest because he had not reported to immigration since 2018, so he was put in immigration detention. He never received any letter to report but the officer wouldn’t listen to him. How can he get out of detention?

When a person fails to report to immigration when requested, the immigration officer will issue a warrant for their arrest. As warrants are entered into the Canada-wide police system, any infraction or interaction with the police will result in arrest. A person detained by Immigration is entitled to a detention review within 48 hours and can explain their circumstances to a member of the Immigration Division at the hearing. The member will decide whether to release the person, whether a bond or other terms and conditions will be imposed upon release, or to continue detention. If detention is continued, there will be another detention review in 7 days and then monthly hearings thereafter. The main factors that the member will consider are whether the detained person can be properly identified, whether he is a danger to the public, and whether he will show up for future interviews or removal from Canada. As securing release will depend on legal argument and evidence, and often a bonds person to pay a cash or performance bond, you should obtain legal counsel immediately.

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My relative was in Canada and was ordered to leave the country. He was issued a departure order and told that he had to leave the country within thirty days. He was intending to leave Canada, but he was subsequently arrested and detained and cannot leave within the 30-day period. What will happen to him?

If a person subject to a departure order fails to leave within 30 days, the departure order will become a deportation order. However, if a person is detained, there will be an automatic stay of the order until the person is released. This means your relative will still be permitted to leave Canada pursuant to the departure order as long as he leaves Canada within 30 days, not counting the period of time he spent in detention. It is very important to obtain clear legal advice on issues of detention and removal as different removal orders have different legal consequences. While a departure order allows the person to return to Canada in the future, a deportation order results in a permanent bar from re-entering Canada unless the person obtains special permission to re-enter called Authorization to Return to Canada (ARC). Your relative should obtain detailed legal advice.

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I am a permanent resident and my girlfriend has been visiting me on a visitor visa. A few weeks ago, she was arrested for shoplifting and she has to go to criminal court. She did not intend to steal anything but while shopping she put makeup in her purse because she had too many items to hold. She had several makeup and skincare products and paid for all of them, but she forgot one item in her purse at the checkout. After she left the store, she was arrested and charged, and she could not explain because she doesn’t speak English. She has never committed a crime in her life and she is so upset. If she is convicted, will she have to leave Canada? Will she be able to come back? We are planning to get married in the future and are worried how this will affect us.

Details matter when people with temporary or permanent residence are charged with criminal offences. Your girlfriend must obtain proper legal advice from both a criminal lawyer and immigration lawyer as a criminal conviction for theft will affect her immigration status. In Canada, criminal offences can be either indictable (more serious) or summary (less serious) and often a combination of both (known as a hybrid offence). Theft under $5000 is a hybrid offence under the Criminal Code. When a foreign national, such as a visitor, is charged with a hybrid offence, it is considered an indictable offence under immigration law, and the foreign national becomes inadmissible. As this is a first-time offence, her criminal lawyer may be able to negotiate with the Crown attorney to obtain a discharge, which would mean she could avoid inadmissibility. If not, she would be ordered removed from Canada and would need to obtain special permission to return to Canada in the future. It is essential that she obtain proper legal advice immediately.

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