People who immigrate to Canada are typically aware that if they are convicted of certain criminal offences that they could lose their permanent resident status. When immigrants are charged with criminal offences, immigration lawyers and criminal defense counsel will accordingly often work together to do their best to ensure that those charged do not lead to deportations. It is therefore important to note that the Canada Border Services Agency has recently taken an exceptionally strict approach to interpreting Canadian immigration legislation which could fundamentally change the immigration consequences of violent actions in Canada. The issue is now before the Federal Court of Canada.
The Consequences of Criminal Records
Canadian immigration legislation provides that a permanent resident is inadmissible to Canada on grounds of serious criminality if they have been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.
The first thing to note about the above is that a conviction is required. A conviction is a finding by a Canadian court that a person is guilty of an offence. A charge or a confession is not a conviction. A conviction that is set aside on appeal is also not a conviction for immigration purposes, nor is an absolute or conditional discharge, which is where a finding of guilt is made, but no conviction against the individual is registered.
The second thing to note about the above is that only convictions for certain offences will result in a permanent resident being inadmissible to Canada. The offence must either be one whose maximum penalty is a term of imprisonment of ten years or more,Read more ›
François Crépeau is a Professor at the McGill Faculty of Law and the Director of the Centre for Human Rights and Legal Pluralism. He was the United Nations Special Rapporteur on the Human Rights of Migrants from 2011 to 2017.
Peter Edelmann and François discuss migration issues generally, the Compact for Migration, and its implication for Canadian immigration and refugee law.
This episode was recorded before Peter Edelmann was appointed to the British Columbia Supreme Court.
4:15 – What does a UN special rapporteur on migration do?
8:00 – What impacts could climate change have on the future of global migration patterns?
10:37 – How does Canadian refugee law address the issue of climate refugees?
21:00 – What led up to the Compact on Global Migration and what preceded it? How has migration historically been monitored / governed on a global scale?
28:00 – What is the international definition of a refugee?
31:3– What percentage of migrants would qualify as refugees?
33:30 – What is the Global Compact on Migration?
Peter, Deanna and Steven discuss where Canada’s political parties stand on immigration.
1:45 – Where do the parties stand with regards to letting provinces decide who immigrates?
13:28 – Immigration levels
23:30 – What are the promises with regards to border security and the Safe Third Country Agreement?
36:00 – Temporary Foreign Workers
42:00 – Application feesFees
46:00 – Settlement services and values tests
48:00 – Where parties can work together on and general trends.Read more ›
Last updated on January 2nd, 2020
In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law. The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen. The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law.
On December 19, 2019 the Supreme Court of Canada released its decision. The Supreme Court created a revised framework for the standard of review in judicial review applications. Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials.
Understanding The Standard of Review
As I wrote in December, the standard of review pertains to how courts review administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members. The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals, stays of removal, deportation orders, etc.
The concept of the standard of review is perhaps best illustrated by using the analogy of a parent asking her child to pick the clothes that she will wear to school that day. A parent who is showing her child a lot of deference will let her child wear whatever she wants to wear to school, as long as what the child picks is reasonable. If the child tries to wear pants over her head, for example, the parent would say that the child’s choice is unreasonable and prohibit the outfit.Read more ›
In 2020, over 400,000 international students at the post-secondary level in Canada will return to school. Many will want to stay and work in Canada after graduating. All will be subject to mandatory conditions of their stay as a student in Canada. It is important for all international students, and especially those who wish to one day work in or immigrate to Canada, to understand these conditions, as the consequence of failing to comply with one of the them is removal from Canada and a one year bar from returning.
The Law on Study Permit Compliance
Regulation 220.1(1) of Canada’s Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada must enroll at a post-secondary institution that accepts international students, also known as a designated learning institution, and remain enrolled at the designated learning institution until they complete their studies. As well, students must actively pursue their course or program of study.
Canadian immigration authorities typically interpret this legislative requirement as being that students must be enrolled full-time or part-time during each academic semester (excluding regularly scheduled breaks), that they must make progress towards completing their program’s courses and that they cannot take authorized leaves longer than 150 days from their program.
The Immigration, Refugees and Citizenship Canada website state that a leave will count as authorized if a school has authorized a leave from study due to medical reasons, pregnancy, a family emergency, death or serious illness of a family member, or any other type of leave that a school authorizes. A leave will also be authorized if a school has closed permanently, if a school is on strike, if someone has changed schools or if the student or their school has deferred their program start date if the student starts studying during the next semester and gets and updated letter of acceptance.Read more ›
Canada’s Immigration and Refugee Protection Act states that a foreign national may not work or study in Canada unless authorized to do so.
The Immigration and Refugee Protection Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”
Wages and Commission
Wages includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service. It is clear that an individual who receives payment for services would be working under Canadian immigration law.
Activities that Compete Directly
The IRCC Guidelines states that for unpaid work officers must consider whether there is entry into the labour market. The two relevant factors that officers are to assess are:
- Will they be doing an activity that a Canadian or permanent resident should really have an opportunity to do?
- Will they be engaging in a business activity that is competitive in the marketplace?
The IRCC Guidelines further states that the following are examples of activities that constitute work.
- a foreign technician coming to repair a machine, or otherwise fulfill a contract, even when they will not be paid directly by the Canadian company for whom they are doing the work;
- self-employment, which could constitute a competitive economic activity such as opening a dry- cleaning shop or fast-food franchise. (A self-employed person may also be considered to be working if they receive a commission or payment for services);
- unpaid employment undertaken for the purpose of obtaining work experience,
American nationals wishing to visit Canada may be unable to do so if they have a criminal record which renders them inadmissible to Canada. In order to overcoem their inadmissibility, they need to either apply for criminal rehabilitation or a temporary resident permit (a “TRP”).
Section 24 of the IRPA provides that:
A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
The Immigration, Refugees and Citizenship Canada (“IRCC“) TRP guidelines (the “Guidelines”) provide officers with the following guidance on issuing TRPs:
Generally, individuals who do not meet the requirements of the Immigration and Refugee Protection Act (IRPA), or who are inadmissible under the IRPA, may be
- refused a permanent resident visa (PRV) or temporary resident visa (TRV) abroad
- refused an electronic travel authorization (eTA)
- reported inadmissible under section A44(1)
- allowed to withdraw their application to enter Canada at a port of entry (POE)
- refused processing within Canada
In some cases, however, an officer may issue a TRP to allow a person who is inadmissible, or who does not meet the requirements of the IRPA, to become a temporary resident (that is, to enter or remain in Canada) if it is justified in the circumstances.
TRPs allow officers to balance the objectives of the IRPA to meet Canada’s social, humanitarian and economic commitments, while maintaining the health and security of Canadians.
When A TRP May Be Issued
The IRCC Guidelines state that officers may issue a TRP when both of the following apply:
- The purpose of the individual to enter or remain in Canada is balanced when the objectives of the IRPA are considered;
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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