Stewart Sharma Harsanyi Immigration Law Firm Blog

The Immigration and Appeal Division and the Scope of its Equitable Discretion

In order to maintain status, a permanent resident must comply with the residency obligation set out in s.28 of the IRPA. With some limited exceptions, this means being in Canada for 2 years out of every 5 year period. Non-compliance carries with it a risk or jeopardy to status. Section 41 of the IRPA establishes a ground of inadmissibility for the breach of the residency obligation. An Officer (inside Canada or at the POE) can prepare a section 44 Report asserting same. If the person concerned wishes to appeal, the matter will be heard by the Immigration Appeal Division (IAD). The IAD has equitable discretion to grant relief notwithstanding inadmissibility/ineligibility. As reiterated in the IRPA, section 28(c) the best interests of any child directly affected is always a primary consideration in humanitarian assessments under the Act. In addition, the jurisprudence has also developed a non-exhaustive list of factors the IAD can look to in such cases, including: Extent of non-compliance with the residency obligation/how much is short-fall? The reasons why the appellant left and remained outside Canada (remember the element of choice will be relevant here) Whether efforts were made to return to Canada at the first opportunity (and reasons... Read more →

Driving under the Influence...

A driving while impaired, or DUI, criminal conviction in Canada for a permanent resident (PR) and for a foreign national (FN) is problematic—the maximum sentence possible for this offence is ten years, thus meeting the threshold for immigration jeopardy. If an officer writes a report and the minister’s delegate refers it, then the ID will issue a removal order against a PR. If the actual sentence imposed is less than six months’ jail, then the PR retains a right of appeal to the IAD. For an FN, after being presented with the report alleging inadmissibility, the minister’s delegate will issue a removal order. Contact an experienced immigration lawyer if you encounter this type of charge... Read more →

Consequences of Criminality...

Bear in mind: A good outcome from a criminal justice point of view (a shorter jail sentence than for other, similar, offences) may be a terrible outcome from an immigration point of view. A far longer conditional sentence order (CSO) than a six-month incarceral sentence for a PR or consecutive individual sentences of six months less a day are far better than a “deal” that is more than six months but less than the consecutive sentences. Either would preserve a PR their last best option to remain in Canada. Read more →

Remember...

A dangerous driving offence could be “exchanged” for a plea to careless driving under a provincial traffic safety act. Both can carry similar consequences; but the latter does not result in immigration jeopardy, whereas the former does. If you are a Permanent Resident of Canada or a Foreign National here ... make sure you have experienced criminal defense lawyer that understands the consequences of criminality. Read more →