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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.
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.
The Immigration and Refugee Protection Act (IRPA) lists several bases upon which a permanent resident or foreign national may be declared inadmissible to Canada. Inadmissibility means that a permanent resident or foreign national is not legally admissible to enter or remain in Canada. A declaration of inadmissibility may result in the foreign national or permanent resident being denied entry to Canada or being required to leave Canada and losing their permanent resident status.
The IRPA lists fourteen grounds of inadmissibility:
Importantly, the facts constituting inadmissibility under sections 34 to 37 include facts arising from acts and omissions, and include facts for which there are reasonable grounds to believe that they may have occurred, are presently occurring, or may occur in the future (section 33).
The inadmissibility process commences when an officer of the Canada Border Services Agency (CBSA) prepares a report alleging that a permanent resident or a foreign national is inadmissible on one or more of the above grounds. The report must set out the relevant facts upon which the finding of inadmissibility is based and must then be forwarded to the Minister of Public Safety and Emergency Preparedness.
If the Minister (or their delegate) is of the opinion that the report is well-founded, and if inadmissibility is alleged to be based on the permanent resident’s failure to comply with the residency obligation under section 28 of the IRPA, the Minister or their delegate may – but is not required to – make a removal order. The Minister may also make a removal order against a foreign national deemed inadmissible on grounds of serious criminality or criminality, misrepresentation, cessation of refugee protection, failing to comply with various provisions of the IRPA, sanctions, and inadmissible family member.
If the Minister (or their delegate) is of the opinion that the report is well-founded, and if inadmissibility is alleged to be based on any grounds other than those listed in the previous paragraph, the Minister may – but is not required to – refer the report to the Immigration and Refugee Board’s Immigration Division (ID) for an admissibility hearing.
A CBSA officer or the Immigration Division may impose any conditions deemed necessary on a permanent resident or a foreign national who is the subject of a report or an admissibility hearing. CBSA officers are also required to impose particular conditions on permanent residents and foreign nationals who are not detained after a report on inadmissibility on security grounds has been referred to the Immigration Division.
An admissibility hearing is a quasi-adjudicative proceeding in which submissions are made on behalf of the Government, and on behalf of the permanent resident or foreign national, respectively. Members of the Immigration and Refugee Board are independent and impartial and render decisions based on the established facts and applicable law.
At the end of the admissibility hearing, the Immigration Division must either recognize the permanent resident’s right to enter Canada; grant permanent resident status or temporary resident status to the foreign national; authorize the permanent resident or foreign national to enter Canada for further examination, with or without conditions; or make a removal order against that person. There are three types of removal orders: departure orders, exclusion orders, and deportation orders.
A removal order issued by the Immigration Division may be appealed to the Immigration Appeal Division (IAD). However, the IRPA does not provide for appeals regarding removal orders issued against foreign nationals or permanent residents deemed inadmissible for reasons of security, violations of human or international rights, sanctions, and organized criminal activities. Regarding removal orders issued for reasons of serious criminality and/or misrepresentation, there are limited rights of appeal. In the case of misrepresentation, however, an appeal may be made to the IAD by a foreign national who is the spouse, common-law partner or child of a sponsor. Note, however, that the Minister’s right of appeal extends to inadmissibility on any ground.
The IAD may affirm or overturn a decision to issue a removal order made by the Immigration Division. The IAD may also stay a removal order if it satisfied that this is justified by sufficient humanitarian and compassionate considerations, in light of all the circumstances of the case. Amongst others, these circumstances include the best interests of any child directly affected by the decision. The result of a stay is to prevent the removal order from entering into force such that the permanent resident or foreign national against whom it was issued may enter Canada or is not required to leave Canada, as applicable.
Whether or not the IRPA provides them with a right of appeal, a permanent resident or foreign national dissatisfied with the decision of the ID or IAD, as applicable, may apply for a review of that decision in the Federal Court of Canada. The Minister of Public Safety may also apply for judicial review of a decision the Minister disagrees with. Removal orders directly issued by the Minister may also be reviewed in the Federal Court, without prior adjudication in the IRB or IAD.
The decision of the Federal Court in judicial review proceedings may affirm or set aside the decision of the IAD or the removal order issued by the Minister. Depending on the identity of the successful party, this may mean that the removal order is maintained, reinstated, set aside, or confirmed as stayed. The removal order and loss of permanent resident status comes into force when all avenues of appeal or other legal processes have been exhausted.
Note that at least two forms of relief are available when the decision in an application for judicial review confirms that the permanent resident or foreign national is inadmissible. The first is known as humanitarian and compassionate relief, under which the Minister may, upon application or at their own discretion, grant a foreign national permanent resident status or otherwise grant an exemption from any applicable criteria or obligations of the IRPA. This includes inadmissibility.
Another form of relief arises when the foreign national establishes that they are a person in need of protection by demonstrating that their removal from Canada to their country or countries of nationality or habitual residence would subject them to a danger of torture, a risk to their life, or to a risk of cruel and unusual treatment or punishment.
In certain cases, and if justified in the circumstances, a CBSA officer may issue a temporary resident permit to enable a person who is inadmissible to Canada to become a temporary resident.
Note that a removal order cannot be enforced against a person who made an asylum claim before the removal order is delivered.
We invite you to contact our firm for more particularized information specific to your situation.
On February 26, 2024, the Regulations amending the Immigration and Refugee Protection Regulations (Electronic Travel Authorization): SOR/2024-0034 were adopted on the recommendation of the Minister of Citizenship and Immigration pursuant to subsection 5(1) and articles 14 and 26 of the Immigration and Refugee Protection Act.
Coming into force on March 13, 2024, the Regulations do three things, namely:
We invite you to contact our firm for more particularized information specific to your situation.
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