2013 September - Download PDF

 

Permanent Residents Face Increased Risks of Removal from Canada


Permanent residents and foreign nationals who have been convicted of certain criminal offences, either in Canada or abroad, may be denied admission to Canada or deported from Canada if they are found criminally inadmissible. A permanent resident is someone who is not a Canadian citizen but has the legal right to live permanently in Canada. A foreign national is someone who does not have permanent legal status in Canada and includes people such as visitors, foreign students, and temporary workers.

Earlier this year, the Canadian Government introduced some major changes to the immigration law to make it a lot easier to remove noncitizens who are found to be inadmissible to Canada, on grounds of criminality or national security, and for misrepresentation. Bill C-43, also known as the Faster Removal of Foreign Criminals Act, became law on June 19, 2013, which introduced more serious consequences for those found to be inadmissible.


Fewer Permanent Residents with Right to Appeal


Under the new changes, if you are a permanent resident of Canada and convicted of an offence in Canada and have been found to be criminal inadmissible, you have the right to appeal of the decision to the Immigration Appeal Division (IAD) only if you get a criminal sentence that is less than 6 months of imprisonment in Canada. This is a major change from the previous law which gave permanent residents the right to appeal if their sentence was less than 2 years. Also, under the new law, there is no distinction between how the sentence is served, whether in jail or in your community (i.e. house arrest). You will be found to be criminally inadmissible and a deportation order may be sought to remove you from Canada.

If you are a permanent resident of Canada who has committed a crime outside of Canada, Citizenship and Immigration Canada will compare the foreign conviction to the law in Canada to see the type of sentence you would have received in Canada if you had committed the same crime in Canada. It does not matter what your actual foreign conviction or sentence was outside of Canada. It only matters what your sentence would be in Canada, under Canadian law. If your foreign conviction or criminal act carries a maximum sentence of 10 years or more under Canadian law, then you also have no right to appeal the criminal inadmissibility decision.

 

Retroactive Applications


Bill C-43 denies appeal rights even in cases of conviction for offences committed before the new changes were introduced on June 19, 2013, unless your case was already referred to the Immigration Division before June 19, 2013.


Authority for Minister to Deny Entry


Under Bill C-43, a new authority has been created to allow the Minister to deny temporary resident status for up to 3 years on the basis of public policy concerns. Public policy concerns are not clearly defined in the legislation and the Minister has large discretion. For instance, public policy concerns may include considerations such as whether the individual will incite hatred that is likely to lead to violence against a specific group, or promote or glorify terrorist violence.


Ministerial Relief for Certain Inadmissible Individuals


In general, if you are found inadmissible to Canada, you can make a request for the Minister to examine the circumstances surrounding your case and ask the Minister to grant you resident status or allow you to overcome the inadmissibility based on humanitarian and compassionate considerations. The Minister will also take into account the best interest of any child(s) directly affected in humanitarian and compassionate considerations.

However, there are certain inadmissibility categories where the Minister will not consider any humanitarian and compassionate factors. If you are inadmissible based on certain security, human rights or international rights violation, and organized criminality grounds, you can submit a formal application to the Minister in order to seek to overcome the inadmissibility.

The Minister also has the right to grant relief on the Minister’s own initiative. However, the Minister will not take into account any humanitarian and compassionate considerations. Instead, the Minister will only take into account national security and public safety considerations. National security and public safety considerations may include analysis of the dangers you may pose inside and outside of Canada.


Findings of Misrepresentation


If you are a permanent resident or a foreign national and misrepresentation is found in your own original application for immigration status, then you will receive a 5 year inadmissibility period as well as a 5 year ban on reapplying for permanent residency. Misrepresentation is defined broadly and includes directly or indirectly making false statements, lying, or withholding important information on your original application and in your communications with immigration officers.

If you are applying for status from outside Canada and misrepresentation is found, then the 5 year inadmissibility period and 5 year ban on re-applying for permanent residency starts when you receive your final inadmissibility decision.

If a permanent resident or foreign national was deported due to misrepresentation, then the 5 year inadmissibility period and 5 year ban for reapplying for permanent residency begins on the date the removal order is enforced.

 

Admissibility based on Family Member’s inadmissibility


If you are a foreign national, you will be inadmissible to Canada if you have a family member who was found inadmissible to Canada on grounds of security, human or international rights violations, or organized criminality. It does not matter whether your inadmissible family member is accompanying you to Canada or not. For example, if your spouse is inadmissible to Canada for terrorist violence, then you would also be inadmissible to visit Canada, even if you are coming to Canada without your spouse.


Imposing Conditions of the Act


The new changes also allow for regulations that could impose conditions on those involved in an application. For example, conditions may be placed against an employer or educational institution that was involved with your application. Immigration officers can verify compliance with any imposed conditions and can also set consequences for breaches of the conditions.

 

Obligation to attend Canadian Security Intelligence Service (CSIS)


Bill C-43 makes it mandatory for foreign nationals making an application to Canada to attend an interview with the Canadian Security Intelligence Service (CSIS) if an immigration officer requests it. At the interview, CSIS is allowed to ask any questions for the purpose of their investigation.

 

Inadmissible on Security Grounds for Acts of Espionage


Foreign nationals or permanent residents are inadmissible on security grounds for any act of espionage (i.e. spying) against Canada or that is contrary to the interest of Canada.

For more information on the Faster Removal of Foreign Criminals Act, please visit the Citizenship and Immigration Canada website at:
http://www.cic.gc.ca/english/department/media/backgrounders/2013/2013-06-20a.asp

 

Changes to “Pardon” System in Canada: Record Suspensions (Formerly known as Pardons)


As of March 13, 2012, the “pardons” process is now called “record suspension” and there have been some changes to the system as well. 

In general, if you are a permanent resident who is criminally inadmissible to Canada for serious criminality, you could be deported from Canada. If you are a foreign national who is inadmissible because of criminality, you cannot be given landed immigrant status until you have proven you are rehabilitated or received a record suspension. 

A foreign national who was convicted outside of Canada of an offence is considered rehabilitated if 5 years has passed since completion of any sentence for that offence and the person has demonstrated they have rehabilitated by not committing any more offences, living a stable lifestyle and showing remorse for their offence.

For offences committed in Canada, you can apply for a record suspension to the Parole Board of Canada (PBC) for the offence. Under the previous law, summary offence has to wait 3 years and indictable offence has to wait 5 years after the sentence is completed to apply. The new law extend the waiting period. You can only apply for a record suspension if 5 years has passed since completing the sentence for a summary offence, or 10 years have passed since completing a sentence for an indictable offence. You must also not have any other new charges or convictions during this 5 or 10 years period.

A sentence for a conviction is completed when:

  • You have fully paid all fines, surcharges, costs, restitution or compensation orders in full;
  • You have served all sentences of imprisonment or conditional sentences, including parole and statutory release;
  • You have completed your probation order

If your court documents are “unable to confirm” what type of trial you had, then the Parole Board of Canada will place a 10 year wait period before you can apply for a record suspension.

You are not eligible for a record suspension if you have been convicted of:

  • A Schedule 1 Offence (sexual offence involving a child) under the Criminal Records Act (*some exceptions apply); or
  • More than 3 offences prosecuted by indictment, each with a prison sentence of 2 years or more

*There are certain exceptions after being convicted of a sexual offence involving a child that will still allow you to obtain a record suspension. If you are convicted of a sexual offence against a child, but you meet the following three requirements, then you can apply for a record suspension after 10 years have passed from the completion of your sentence. The exceptions are:

  • You were not in a position of trust or authority when you committed the sexual offence involving a child; and
  • The sexual offence involving a child did not include violence or threats; and
  • You are not more than 5 years older than the victim child

It should be noted that a record suspension can be revoked by the Parole Board of Canada (PBC) if:

  • You are later convicted of a summary offence under a Federal act or regulation, if the Parole Board finds that you are no longer in good conduct, or if the Parole Board finds that you made false statements or concealed information in applying for your record suspension.
  • You are later convicted of an indictable offence under a federal act or regulation, if you are convicted of an offence that is punishable either on indictable or summary conviction, or if the Parole Board receives information that you were not supposed to be eligible for a record suspension when you applied for it.
  • You can apply for a record suspension if you were convicted of an offence in Canada under Federal laws. You can apply even if you are not a Canadian citizen or a resident of Canada. You can also apply if you were convicted in another country and you were then transferred to Canada under the Transfer of Offenders Act.

The non refundable processing fee to applied for a record suspension has increase from $150 to $631, this does not include additional fees related to getting the fingerprints, copy of your criminal record, court documents, and local police record checks.

For more information on how to apply for a record suspension, visit the Parole Board of Canada website at: http://pbc-clcc.gc.ca/infocntr/factsh/pardon-eng.shtml.

Since criminal sentencing is complex and criminal inadmissibility can have a serious impact on your immigration status, you should consult with a lawyer for legal advice or representation if such issues arise. You should let your lawyer know if you are a permanent resident or foreign national when discussing your case.

For legal advice and representation, you can contact a lawyer or a community legal clinic. To find the community legal clinic in your area, you can phone Legal Aid Ontario. Their toll free outside Toronto number is 1-800- 668-8258, in Toronto, call 416-979-1446 or check their web site at www.legalaid.on.ca.