There are numerous immigration consequences for Foreign Nationals, Refugees (and Claimants), Permanent Residents and even Canadian citizens for criminality; even a single pebble of criminality has far-reaching effects. Immigration jeopardy can flow from convictions in Canada and offences committed outside Canada.
Some examples:
For Permanent Residents and Foreign Nationals, criminality can result in loss of status and removal from Canada. Criminality can impact family class sponsorships and stymie the hope of family reunification. A Permanent Resident or a Canadian Citizen convicted of an offence involving violence against a family member results in sponsor ineligibility for years. A criminal conviction by a sponsored family member, even accompanying dependents, could waylay a years old family class sponsorship and the dream of family reunification.
Even those recognized as Refugees in Canada can be removed and sent to a country where they fear persecution if there is sufficient concern regarding their (criminal) risk to Canadians.
Canadian criminality can result in lifetime inadmissibility to the United States even for a Canadian citizen. It can also delay the application by a Permanent Resident for citizenship in this country. Time spent in jail, on probation, or out on parole does not count for the calculation of residency for an application for a grant of citizenship.
Criminality has always had repercussions. Over the years, the scope to address criminality has decreased. The IRPA, now approaching it’s twentieth year prioritized security. Simply put non-citizens do not have an unqualified right to enter or remain in Canada.
The Federal Court of Appeal has also discussed the criminal inadmissibility regime set out in the IRPA:
- Immigration is a privilege, not a right and non-citizens do not have an unqualified right to enter or remain;
- Citizens are treated differently than Permanent Residents, who in turn are treated differently than Convention Refugees (and Protected Persons) who are in turn treated differently than other Foreign Nationals; and
- Section 36 also distinguishes between offences committed inside Canada and offences committed outside Canada.
There are options:
- Avoidance of a determination of guilt for an offence that results in immigration jeopardy; or avoidance of a sentence that results in immigration jeopardy.
- It is possible to approach and seek an Officer’s discretion not to proceed with enforcement action.
- Foreign convictions or acts need to be equivalent to an offence in Canada. That equivalency exercise needs to be done correctly and can be challenged.
- a foreign pardon or expungement may alleviate concerns however, not all pardons are equal.
- Depending on the maximum available sentence for an offence outside Canada or the length of sentence imposed for a conviction in Canada, a Permanent Resident has recourse to the Immigration Appeal Division, which can grant relief on humanitarian and compassionate grounds.
- The Temporary Resident Permit can allow leave for a criminally inadmissible individual to remain or authorization to enter Canada.
- The grant of Humanitarian and Compassionate relief can overcome criminal inadmissibility.
- Unlike the Mark of Cain, there is a pathway towards rehabilitation.
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