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Immigrating to Canada or seeking to enter Canada as a temporary resident or pursuant to a temporary resident visa is often a family affair. However, the provisions governing inadmissibility codified in the Immigration and Refugee Protection Act (“IRPA”) can result in family members being inadmissible to Canada based on one of their family members being inadmissible to Canada on one or more of the grounds of inadmissibility listed in sections 34 to 41 of the Act. Exceptions to these inadmissibility provisions exist, but it will generally not be possible for a foreign national deemed inadmissible on the basis of an inadmissible family member to obtain permanent residency in Canada. The present article discusses these matters in greater detail.
Inadmissibility based on an admissible member is governed by sections 42(1) and 42(2) of the IRPA. These provisions only apply to “foreign nationals,” and therefore not to Canadian citizens, permanent residents, or protected persons. Note that a protected person refers to a person to whom refugee protection has been conferred under IRPA, s. 97 or 114(a).
Section 42(1) provides for two forms of inadmissibility based on an inadmissible family member. These two forms of inadmissibility are governed by paragraphs 42(1)(a) and (b) of the IRPA, respectively.
IRPA, Paragraph 42(1)(a)
First, paragraph 42(1)(a) renders inadmissible to Canada a foreign national – other than a protected person – if their accompanying family member or non-accompanying family member is inadmissible. In other words, a foreign national who is otherwise admissible to Canada is inadmissible to Canada if their accompanying or non-accompanying family member is inadmissible one or more grounds listed in sections 34-41 of the IRPA.
Accompanying Family Member
An accompanying family member is a family member who is physically present and accompanying the foreign national either at the time of seeking to enter Canada or who was allowed to enter Canada with the foreign national. The inadmissibility of the foreign national’s accompanying family member can be determined at the time of seeking entry into Canada in circumstances when one or more grounds of inadmissibility can be established then. The inadmissibility of the foreign national’s accompanying family member can also be established after their entry into Canada. For example, the accompanying family member may have been admissible at the time of their entry into Canada, but subsequently became inadmissible due to having engaged in conduct or otherwise falling into one or more categories of inadmissibility listed in s. 34-41 of the IRPA and having had a declaration of inadmissibility made by the Immigration Division or the Minister of Public Safety and Emergency Preparedness.
Non-accompanying Family Member
A non-accompanying family member is a family member who is not physically present with the foreign national at the time of seeking to enter Canada and/or who did not accompany them into Canada upon been allowed to enter. Non-accompanying family members are often the family members of foreign nationals who have already entered Canada and who subsequently seek to enter Canada, either alone or with other family members other than the family member who has already entered Canada. As a result, a foreign national who already in Canada is rendered inadmissible to Canada if their non-accompanying family member is inadmissible to Canada.
IRPA, Paragraph 42(1)(b)
Second, paragraph 42(1)(b) renders inadmissible to Canada a foreign national – other than a protected person – if they are the accompanying family member or non-accompanying family member of a foreign national who is inadmissible to Canada. In other words, a foreign national who is otherwise admissible to Canada is inadmissible to Canada if they are the accompanying or non-accompanying family member of a foreign national who is inadmissible one or more grounds listed in sections 34-41 of the IRPA. Note that the definition of “foreign national,” “accompanying family member” and “non-accompanying family member” are the same as those discussed under IRPA , Paragraph 42(1)(a), above.
Exceptions to IRPA, Paragraphs 42(1)(a) and (b): temporary resident
Section 42(2) of the IRPA provides for limited exceptions to the application of paragraphs 42(1)(a) and (b). These exceptions only apply to a foreign national who is either a temporary resident, has made an application for temporary resident status or an application to remain in Canada as a temporary resident.
The temporary resident exception refers to a foreign national who has already been granted a temporary resident visa and is present in Canada. The exception pertaining to a foreign national who has made an application for temporary resident status refers to a foreign national who has not yet entered Canada as a temporary resident but seeks to do so. The phrase “who has made an application” indicates that the exception applies to this category of foreign national from the moment the application has been filed and even if it has yet to be decided. The exception for a foreign national who has made an application to remain in Canada is confined to foreign nationals who already physically present in Canada at the time of filing their application to “remain in Canada as a temporary resident”
If the foreign national falls within any of these three categories, paragraph 42(2)(a) provides for an exception to s. 42(1)(a) pursuant to which a foreign national is only inadmissible on the basis of an inadmissible accompanying or non-accompanying family member if that family member is inadmissible to Canada on grounds of security (section 34), human or international rights violations (section 35), sanctions (section 35.1), or organized criminality (section 37). Paragraph 42(2)(b) provides for an exception to 42(1)(b) pursuant to which a foreign national is not inadmissible to Canada if they are an accompanying or non-accompanying family member of a foreign national who is inadmissible to Canada on grounds other than those listed in sections 34, 35, 35.1 or 37
Importantly, however, the exceptions only apply in the specific case of temporary resident visas and do not impact the inadmissibility provisions for permanent resident visa applicants.
As a result, a foreign national who holds a temporary resident visa, has applied for one to enter Canada, or to remain in Canada will be inadmissible to Canada and generally unable to be conferred permanent resident status based on being or having an accompanying or non-accompanying family member who is inadmissible to Canada even if the grounds of inadmissibility fall outside sections 34, 35, 35.1 or 37 of the IRPA. This would be the case for a foreign national who applies for permanent resident status and who is or has an accompanying or non-accompanying family member who is inadmissible for serious criminality (section 36(1)) or criminality (section 36(2)).
A finding of inadmissibility is significant, as the Immigration Division or Minister will issue a removal order against the foreign national and their accompanying family members or the family members they are accompanying. However, under Rule 227(2) of the Immigration and Refugee Protection Regulations, a removal order made by the Immigration Division is also a removal order against their family members in Canada only under two conditions. First, an officer of the Canada Border Services Agency must have informed the family members of the inadmissibility report made against their accompanying family member or against the family member they are accompanying and of their right to make submissions and be represented at the admissibility hearing. Second, the Immigration Division’s decision concluding in the inadmissibility of the family member accompanying the foreign national, or who the foreign national accompanies, also concludes that each of their family members is inadmissible pursuant to s. 42 of the IRPA.
Solutions
Recourses and solutions exist for foreign nationals deemed inadmissible to Canada on grounds of an inadmissible family member. For comprehensive support and guidance through this complex process, consider partnering with Hasa Attorneys. Our experience in immigration law ensures that every step of your journey is navigated with precision and care, maximizing your chances of a favourable outcome and a new beginning in Canada.
Hasa Attorneys, a distinguished law firm with profound expertise in Canadian immigration law, specializes in facilitating the complex process of family sponsorship. Our commitment is to provide clients with personalized and thorough legal guidance, ensuring a seamless journey towards family reunification in Canada.
Understanding Family Sponsorship
Family sponsorship is a cornerstone of Canada’s immigration policy, designed to reunite families. This program allows Canadian citizens and permanent residents to sponsor eligible family members, including spouses, common-law partners, dependent children, and parents or grandparents, to become permanent residents of Canada. The program underscores the value of family and aims to strengthen the social and cultural fabric of Canadian society.
Quebec Application Caps
The Quebec government has implemented a cap on the number of family sponsorship applications that will be accepted until June 2026. A limited number of applications will be considered, so it is crucial to submit your sponsorship application as soon as possible. The imposed caps are as follows:
Once the maximum number of applications is reached, no additional applications will be processed until June 2026. The period for submitting family sponsorship applications is limited, and we anticipate that capacity will soon be reached. We strongly encourage potential sponsors to complete and submit their applications immediately to ensure their application is processed before the cap is reached.
Categories of Family Sponsorship
Sponsorship from Within Canada
Sponsoring a family member from within Canada, also known as “inland sponsorship,” allows the sponsored individual to reside in Canada while their application is being processed. This type of sponsorship offers the possibility to work or study legally in Canada during the processing of the application under certain conditions. It is particularly essential that the sponsored individual has maintained a legal status in Canada, whether as a visitor, student, or worker at the time the application is submitted.
Family members sponsored from within Canada may benefit from certain temporary resident permits, such as:
Sponsorship from Outside Canada
Sponsorship from outside Canada applies to family members living abroad. Applications submitted through this route are generally processed by visa offices abroad. The sponsored individual will have to wait for the approval of the application before they can move to Canada as a permanent resident. This process can be longer than inland sponsorship, but it also allows the sponsored individual to stay with their loved ones in their home country during the processing of the application.
Application Process
The application process for family sponsorship involves several detailed steps, including eligibility assessment, gathering necessary documentation, and submission of the application. Hasa Attorneys will guide clients through each step:
Importance of Supporting Evidence for the Application
Providing strong evidence is essential for the success of a family sponsorship application. The evidence must demonstrate:
Ensure that all evidence is clear, complete, and well-organized to avoid delays or refusals.
Quebec-Specific Considerations
Sponsorship within Quebec comes with specific obligations towards both the government and the sponsored individual. Sponsors enter into a contractual commitment with the Quebec government, ensuring that the sponsored family members will not become a financial burden on the society.
Once the sponsor’s eligibility is confirmed by Immigration, Refugees, and Citizenship Canada (IRCC), the process in Quebec proceeds to the following steps:
Once the CSQ is obtained, the application will continue to be processed at the federal level for the issuance of permanent residence.
The Minimum Necessary Income for sponsors in Quebec:
In Quebec, the Minimum Necessary Income for sponsors depends on the family size, including both the sponsor’s own family and the sponsored persons. These numbers change and are routinely updated by the Quebec Government, but here are the numbers as of June 2024. The basic income required is $28,242 for a single individual. That amount increases with each additional family member being sponsored. For sponsoring persons under 18, an additional amount of $9,776 for one person and $15,493 for two is required, with an increment of $5,166 for each additional minor. For more details, you can visit the official Quebec government website.
Integration into Quebec society
For integration into Quebec society, the Government emphasises the importance of understanding French and adapting to Quebec’s social norms. It suggests prospective residents should enhance their French language skills for effective communication and integration into the local community. Additionally, adapting to Quebec involves familiarizing oneself with the province’s culture, values, and societal expectations to ensure a smooth transition into the community. For more detailed guidance on these aspects, the document recommends specific resources and programs available for newcomers in Quebec.
Fees and Estimated Time
Navigating the family sponsorship process, especially within Quebec, requires a thorough understanding of the legal obligations, application steps, and associated costs. Hasa Attorneys provide expert guidance throughout this journey, ensuring a smooth and informed pathway to family reunification in Canada. If you would like to discuss your sponsorship application further, please contact us to book a consultation.
Welcome to Hasa Attorneys, a distinguished immigration law firm nestled in the heart of Montreal. Specializing in immigration, we strive to guide asylum seekers through a sometimes complex process. Our dedicated team combines experience and compassion, ensuring each client receives personalized and effective legal support. In this article, we will explore the journey of asylum seekers in Canada, highlighting eligibility criteria and the various steps leading to protected person status.
Understanding Refugee Status in Canada
In Canadian and international law, a refugee is defined as someone who is outside their home country or the country they normally live in and is unable to return due to a well-founded fear of persecution based on race, religion, political opinion, nationality, or being part of a particular social group. Refugee status in Canada is granted to those meeting that definition of a refugee. It also applies to persons in need of protection, who would face dangers such as torture, or risk to life, or cruel treatment if returned to their home country. This status offers crucial legal protection, preventing individuals from being sent back to situations where their safety and rights are at risk.
Eligibility for Refugee Status
Gaining refugee status in Canada involves a nuanced process that carefully evaluates an individual’s circumstances against specific eligibility criteria. To embark on this journey, understanding these prerequisites is vital:
Navigating through these criteria requires a deep understanding of legal nuances and the implications of each condition. It’s not just about meeting the basic requirements but about clearly articulating the threats and persecutions faced in the country of origin, aligning with Canada’s protective stance for human rights.
The Asylum Claim
Applying for refugee status in Canada is a critical step toward protection and safety for those fleeing persecution. The process is designed to be accessible, offering two main avenues for making a claim: at a port of entry upon arrival in Canada, or from within Canada if you have already entered the country.
At a Port of Entry
Upon arrival at any Canadian port of entry—be it an airport, seaport, or land border—you are entitled to make a claim for refugee protection. This process starts with an eligibility interview conducted by an officer from the Canada Border Services Agency (CBSA), during which you’ll complete an application package and provide necessary biometrics like fingerprints and photographs.
After Arriving in Canada
This section outlines the steps for making a claim from within Canada, emphasizing the importance of a complete application, the online submission process, and the role of representatives in assisting with the application. Whether you’ve recently arrived or have been in the country for some time, understanding this process is key to successfully navigating the Canadian refugee claim system.
Arguing your case
Once submitted, if deemed eligible, your claim will be referred to the Refugee Protection Division (RPD). You will receive a Refugee Protection Claimant Document and a Confirmation of Referral letter, along with the Claimant’s Guide for further steps.
Basis of Claim (BoC)
A crucial next step is submitting a completed Basis of Claim (BOC) Form for each family member within 15 days of referral. When applying for refugee status in Canada, articulating the foundation of your claim is pivotal. The Basis of Claim (BoC) Form is an important document that enables you to outline your background, family circumstances, and the specific reasons you’re seeking refugee protection. This form is designed to capture the essence of your claim through detailed inquiries. Key Sections of the BoC form include:
Providing a thorough and honest account within the BoC Form is not just about fulfilling a procedural requirement; it’s about conveying your story in a manner that underscores the urgency and legitimacy of your plea for refuge. This documentation is pivotal in the assessment process, where the details of your narrative can significantly influence the outcome of your claim.
Gathering and Submitting Evidence
When making a refugee claim in Canada, substantiating your claim with concrete evidence is crucial. This evidence provides the Immigration and Refugee Board (IRB) with the necessary context to assess your claim accurately. Here’s how to gather and submit this vital information:
Remember, the quality and relevance of your evidence can significantly impact the outcome of your claim. It’s not just about the quantity of documents but their ability to convincingly illustrate your need for protection under Canada’s refugee and asylum laws.
Attending Your Hearing
The refugee hearing is a pivotal moment in the application process, offering you the platform to present your case in detail. This section provides an overview of what to expect during the hearing and how to prepare effectively. Here is what you can expect at your hearing:
Proper preparation, along with gathering substantial evidence are key to articulating your case compellingly.
Receiving Your Decision
After your refugee hearing, the process of awaiting a decision begins. This crucial phase determines the next steps in your journey towards safety and residency in Canada. Here’s an overview of what happens post-hearing and the possible outcomes you might face.
Post-Hearing Process
Possible Outcomes:
Outcomes can be broadly categorized as negative or positive.
After You Apply
After submitting your refugee claim in Canada, there are several important steps and options to consider as you await the decision. This period involves managing your existing documents, exploring work and study opportunities, and ensuring your claim remains secure against fraud.
Work and Study Permits
Both work and study permits represent avenues through which refugee claimants can constructively engage and integrate into Canadian society during the processing period of their claims. It’s essential to stay informed about the application processes for these permits to make the most of your time in Canada while awaiting your claim’s outcome.
For comprehensive support and guidance through this complex process, consider partnering with Hasa Attorneys after you have made your claim as a refugee. Our experience in immigration law ensures that every step of your journey is navigated with precision and care, maximizing your chances of a favorable outcome and a new beginning in Canada.
Welcome to Hasa Attorneys, nestled in the vibrant core of Montreal, a city celebrated for its academic excellence. Our firm stands as a pillar of legal acumen, specializing in unwinding the complex skein of Canadian immigration law for international students. We pride ourselves on crafting bespoke solutions that cater to the unique educational ambitions of our clients, bolstered by our comprehensive understanding of immigration legislation and procedures.
Understanding Canadian Study Permits
A Canadian study permit is the golden ticket for international students, a crucial document that legally endorses their academic pursuits in Canadian institutions. This permit is the bedrock of their academic journey, ensuring their educational endeavors are in line with Canada’s immigration standards.
The Canadian Educational Landscape
Canada’s educational landscape is a rich mosaic, beckoning students with its inclusive ethos and globally recognized academic credentials. It is a nurturing ground for innovation and intellectual growth, offering a wealth of opportunities for personal and scholarly development.
Types of Study Permits
The study permit system is designed to reflect the diverse academic pathways of students:
Specialized Study Provisions
In line with its flexible immigration policies, Canada provides specific provisions for students under various scenarios:
Steps to Obtaining a Study Permit
For students applying for a study permit from outside of Quebec, the process is managed by Immigration, Refugees and Citizenship Canada (IRCC) and does not require a Certificate of Acceptance of Quebec (CAQ). Here are the key steps you would need to follow:
Additional Steps to Study in Quebec
Studying in Quebec involves additional considerations, given its unique cultural and linguistic heritage. Accordingly, if applying to study in Quebec you will need to follow the following steps:
Preparing for Studies in Canada
Prospective students should prepare for their academic journey by acquainting themselves with Canada’s cultural and educational systems, language proficiency requirements, and financial planning for their studies.
Settling in Canada as a Student
The transition to student life in Canada encompasses finding accommodation, understanding healthcare, and engaging with campus life. Canadian educational institutions offer extensive resources to help international students settle in.
Hasa Attorneys is your steadfast guide through the Canadian study permit process. Whether you’re planning to study in Quebec or another province, we offer the know-how to ensure a smooth and successful academic journey. Contact Hasa Attorneys for a detailed consultation and begin your educational adventure in Canada with a team that is committed to your success.
To determine the issues related to your immigration status following a criminal charge, the first step is to determine your immigration status. There are several types of statuses in Canada, the main ones are:
Except for citizens, all the above categories are subject to the Immigration and Refugee Protection Act (IRPA) and particularly to the provisions of Section 36 and subsequent sections.
Types of Criminal Offenses:
In Canada, the Criminal Code provides for several types of offenses: purely summary, purely indictable, and hybrid. Hybrid offenses can be prosecuted either summarily or by indictment, depending on the prosecutor’s choice (the Crown attorney).
Section 36(3) of the Immigration and Refugee Protection Act states that in the case of a hybrid offense, it is treated as an indictable offense regardless of the chosen mode of prosecution. Thus, regardless of the mode of prosecution, when an offense is hybrid, it will be presumed, for immigration purposes, to have been prosecuted by indictment even if, in reality, the chosen mode of prosecution was summary. This has significant impacts on your immigration status.
Consequences of a Criminal Conviction Depending on Your Status in Canada:
The consequences of a criminal conviction depend based on your status in Canada. The following is a detailed explanation of the consequences of a conviction for depending on your status.
Temporary Residents:
Section 36(2)(a) of the Immigration and Refugee Protection Act states that a temporary resident becomes inadmissible to Canada for criminality if:
Thus, a temporary resident will be inadmissible following a conviction for a purely criminal or hybrid offense under the Criminal Code or a conviction for two offenses (even purely summary) not arising from the same set of facts.
Additionally, Section 36(1)(a) of the IRPA states that a temporary or permanent resident becomes inadmissible to Canada for serious criminality in two scenarios:
The term “punishable by a maximum term of imprisonment of at least 10 years” refers to any offense for which a person is “liable to imprisonment” for 10 years or more.
This first criteria is not based on the actual sentence imposed by the court but rather on the maximum sentence the offender is liable to.
The second criteria of Section 36(1)(a) states that a temporary or permanent resident will be inadmissible for serious criminality if the imposed sentence, regardless of the offense, is more than six months of imprisonment.
Permanent Residents:
Permanent residents are subject, like temporary residents, to Section 36(1)(a) of the IRPA regarding inadmissibility to Canada for serious criminality.
A conviction for an offense punishable by a term of imprisonment of 10 years or a sentence of more than six months of imprisonment will result in the inadmissibility of the permanent resident.
Unlike temporary residents and asylum seekers, permanent residents have the right to appeal the removal order before the Immigration Appeal Division to present humanitarian grounds, such as the degree of establishment or the best interests of the child.
However, if a sentence of 6 months or more is imposed on a permanent resident for an offense with a maximum sentence of 10 years or more, they will have no recourse to contest the removal order before the Immigration Appeal Division.
Asylum Seekers:
Asylum seekers are subject, like permanent residents, to Section 36(1)(a) of the IRPA regarding inadmissibility to Canada for serious criminality.
Section 101 of the IRPA states that an asylum claim is inadmissible for criminality if:
Accordingly, an asylum claim will be considered inadmissible if the claimant is convicted of an offense with a maximum sentence of 10 years or more. An asylum seeker will not be able to be heard by the Refugee Protection Division to determine if they are a protected person.
In case of a conviction, the asylum seeker will be inadmissible, and a deportation order will be issued against them.
Furthermore, proceedings before the Refugee Protection Division are suspended when an asylum seeker is charged with a serious criminal offense pending the outcome of the criminal proceedings.
Example:
If a person is charged with impaired driving, they will be charged under Section 320.14 of the Criminal Code for driving a vehicle while their ability to operate it is impaired to any degree by alcohol, a drug, or a combination of both.
Section 320.19 of the Criminal Code provides the applicable mode of prosecution:
320.19 Punishment
The offense of impaired driving by alcohol is thus a hybrid offense that could, depending on the circumstances, be prosecuted either summarily or by indictment. The IRPA specifies that such an offense is treated as an indictable offense regardless of the chosen mode of prosecution. Thus, regardless of the actual mode of prosecution in your case, when an offense is hybrid, for immigration purposes, it will be presumed that you are prosecuted by indictment even if, in fact, the chosen mode of prosecution was summary.
In the case of the offense of impaired driving, under Section 320.19 of the Criminal Code, the penalty for the offense prosecuted by indictment is a maximum term of imprisonment of 10 years.
It is therefore an offense of serious criminality referred to in Section 36(1) of the IRPA.
A conviction for impaired driving will result in inadmissibility for permanent residents, temporary residents, and asylum seekers, as it is an offense punishable by a maximum term of imprisonment of 10 years.
Conclusion:
Each case is unique, and our team of experienced criminal and immigration law lawyers possesses the expertise and qualifications to assist and advise you in a often stressful process.
We invite you to contact our firm to obtain information that may be relevant to your situation.
In Canada, once a person has been found guilty of a criminal infraction (depending on the sentence imposed in the file) the information of said person will be kept in the Canadian Police Information Center database, that constitute a criminal record.
The existence of a criminal record can have an impact in terms of immigration, on the employment field and restrict one’s ability to travel.
Someone with a criminal record can, under certain specific condition, present to the Parole Board of Canada a request for a record suspension in order to remove his criminal record from the Canadian police information center database.
Depending on the date the first infraction has been committed, the request can be called a record suspension or a pardon application.
Pardon applications (or record suspensions for any offense committed after March 13, 2012) are governed by the Criminal Records Act (the Act).
Section 4 and subsequent sections of the Act specify restrictions on record suspension applications, including the waiting period to be observed and the eligible offenses.
General admissibility
Each situation requires a particular analysis however summarily you will not be eligible to a record suspension if:
If your file concluded in an acquittal or a withdraw of accusation or if you have obtained as a sentence a discharge (conditional or unconditional) you do not need to request a record suspension as a criminal record is not created in those circumstances. You also do not need to request a record suspension if you have only been convicted in a youth court or a youth justice court, your record will be destroyed or archived once all applicable time period have elapsed under the Young Offenders Act or the Youth Criminal Justice Act.
Applicable delay to respect before presenting a request
Once eligibility for a record suspension request is preliminarily confirmed, the applicable waiting period before making the request must be determined.
The waiting period before you can request a suspension of your criminal record depends on several criteria, namely:
As mentioned, the appropriate waiting period will vary depending on the date when the first offense was committed. Below, you will find the applicable rules according to the date of the offense commission:
| Date when the infraction was comitted: | Your first infraction was committed on or before June 28 2010 : | Your first infraction was committed between June 29 2010 and March 12 2012 : | Your first infraction was committed on or after March 13 2012 : |
| Name of the procedure: | Pardon | Pardon | Record suspension |
| Delay if the case was handled by summary conviction: | 3 years | 3 years | 5 years |
| Délai si le dossier a été pris par mise en accusation (acte criminel) : | 5 years | 5 years | 10 years |
| 10 ans : Infraction grave contre la personne pour laquelle vous avez été condamné à 2 ans d’emprisonnement ou plus ou infraction punissable par mise en accusation figurant à l’annexe I de la Loi sur le casier judiciaire. |
The periods of 3 years, 5 years, or 10 years starts once all sentences are served, which means that the waiting period begins once all imposed sentences are completed. Which means that the waiting period does not start once you are found guilty but only once your entire sentence has been served.
According to the Parole Board of Canada (hereinafter “the Board”), a sentence corresponds to any imposed sanction, and probation periods are considered sentences by the Board. A fine is also considered a sentence, and any unpaid fees, for example, would prevent the sentence from being served and would push back the start date of the waiting period to the date when the total required sum is received by the Court.
It is essential to understand what constitute a sentence according to the Criminal Code in order to determine the applicable waiting period. As an example: a prohibition from driving for a one-year period imposed in a file of driving under the influence or dangerous driving is not considered a sentence in the sense of the Criminal Code and this delay is not to be considered in the waiting period.
Formalities
Once your waiting period has ended, you will need to make several applications to different organizations in order to submit your pardon application.
Once eligible for a Record Suspension application, the first step will be to obtain your criminal record from the RCMP. Our office could then obtain other documents and fill out the forms for you if you retain us to apply for your Record Suspension.
Criteria Considered for the Application for a Record Suspension
Record suspension requests are not automatically approved by the Parole Board of Canada, even if you fit the general criteria to obtain said record suspension. Your file will be analysed by the board. To determine whether to grant a Record suspension application, the Board will consider, among other things, the nature of the offense committed and its severity, as well as evidence of your rehabilitation, which includes: actions taken/positive changes made in your life following the commission of the offense, and the societal benefit of granting you a pardon (how obtaining a pardon would benefit you and how it would support your reintegration into society as a law-abiding citizen).
Conclusion
A record suspension, if approved, can be beneficial in many ways. It is essential to understand and respect the admissibility criteria in order to improve your chances of having your request granted.
We invite you to contact our firm for more particularized information specific to your situation.
On February 2, 2024, the Regulations amending the Immigration and Refugee Protection Regulations: SOR/2024-11 were adopted on the recommendation of the Minister of Public Safety and Emergency Preparedness pursuant to subsection 5(1) and paragraph 53(3) of the Immigration and Refugee Protection Act (IRPA).
Coming into force on March 15, 2024, the Regulations aim to enhance the coherence and efficiency of the process of cancelling immigration documents after a foreign national has been found inadmissible and subsequently issued a removal order. The Regulations ensure that inadmissibility determinations automatically and directly affect the validity of immigration documents, namely, electronic travel authorizations, temporary resident visas, temporary resident permits, work permits, and study permits. Under the new Regulations, temporary resident visas, electronic travel authorizations and temporary resident permits documents are automatically cancelled when a removal order is made against a foreign national. Work permits and study permits are automatically cancelled when a removal order made against a foreign national becomes enforceable.
In this regard, the Regulations amend the Immigration and Refugee Protection Regulations (IRPR) by adding a new Division 5 (“Cancellation of Immigration Documents”) comprised of a new section 243.1 (“Making of a removal order”) and section 243.2 (“Enforceable removal order”). As a result of this addition, consequential amendments are made to paragraph 63(a), section 209, and paragraph 222(1)(b) of the IRPR.
Two examples may help illustrate the application of the new above-mentioned articles.
Under the first example, John was admitted to Canada as holder of a temporary resident permit. Shortly thereafter, John was contacted by a delegate of the Minister of Public Safety and Emergency Preparedness and informed that an inadmissibility report was prepared against him on the basis of serious criminality and invited to provide evidence and information as part of his participation in a ministerial process that will determine whether a removal order will be issued. At the conclusion of the process, John is informed that the Minister has issued a removal order. As a result of the new section 243.1, John’s temporary resident visa is automatically cancelled.
Under the second example, Shirley was admitted to Canada on the basis of a study permit. Shortly thereafter, Shirley was contacted by an officer of the Canada Border Services Agency and informed that an admissibility report was prepared against her on the basis of human or international rights violations and notified that the report was referred to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing. Shirley participated in the admissibility hearing and the Immigration Division issued a removal order. As the IRPA does not provide for a right of appeal to the Immigration Appeal Division, the removal order becomes enforceable on the day the Immigration Division issued the removal order. As a result of the new section 243.2, Shirley’s study permit is automatically canceled.
The Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2024-11, and a detailed discussion of the public policy objectives they encompass, were published on February 14, 2024 in the Canada Gazette, Part II, Volume 158, Number 4 and are accessible at the following link: https://www.gazette.gc.ca/rp-pr/p2/2024/2024-02-14/html/sor-dors11-eng.html
We invite you to contact our firm for more particularized information specific to your situation.
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