Inadmissibility in Canadian Immigration Law

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:  

  • Security grounds (section 34(1));  
  • Human or international rights violations (section 35(1);  
  • Sanctions (section 35.1(1));  
  • Serious criminality (section 36(1));  
  • Criminality (section 36(2));  
  • Transborder criminality (section 36(2.1));  
  • Organized criminality (section 37(1));  
  • Health grounds (section 38(1));  
  • Financial reasons (section 39);  
  • Misrepresentation (section 40(1));  
  • Cessation of refugee protection for a foreign national (section 40.1(1));  
  • Cessation of refugee protection for a permanent resident (section 40.1(2));  
  • Non-compliance with the IRPA (section 41);  
  • Inadmissible family member (section 42(1)). 

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. 

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Updated Rules for Temporary Resident Visas and Electronic Travel Authorizations for Mexican Nationals

24-5-24  Immigration,News

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:

  1. Removing Mexico from the schedule of countries whose nationals are exempt from the Temporary Resident Visa (TRV) requirement to travel to Canada.
  2. Adding Mexico to the list of countries whose nationals may be eligible to travel to Canada with an Electronic Travel Authorization (eTA) if they are travelling by air and have held a Canadian TRV in the last 10 years or hold a valid U.S. nonimmigrant visa; and
  3. Specify that eTAs of Mexican nationals remain valid for those who hold a valid work or study permit when the regulations come into force.

We invite you to contact our firm for more particularized information specific to your situation.

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