We discuss issues involving the deportation of long term permanent residents for criminality.
Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001. He is representing Jaskirat Singh Sidhu in his immigration and deportation matters.
5:45 – What are the grounds for deporting a permanent resident for criminality?
13:00 – How does the appeal process work?
17:00 – What are the factors in deportation.
19:00 – An overview of the history of the law involving the deportation of permanent residents.
26:00 – What is the probability of success for a permanent resident in avoiding deportation once proceedings start?
36:00 – Stays of removal
41:00 – Strategies and tips for responding to procedural fairness letters involving removal.
[UPDATE – DECEMBER 20, 2023]
The Federal Court in Sidhu v Canada (Public Safety and Emergency Preparedness), 2023 FC 1681 has upheld a decision of the Canada Border Services Agency to refer Mr. Sidhu to the Immigration and Refugee Board. Citing the Federal Court of Appeal decision in Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151, the Court set forth the general principles applicable to the scope of the discretion contemplated by susections 44(1) and (2) of the IRPA as follows:
- The scope of discretion held by immigration officers under subsection 44(1) and by ministerial delegates under subsection 44(2) of the IRPA is very limited, especially in cases of serious criminality and organized criminality: Obazughanmwen, at paras 27 and 29.
- In this context, immigration officers and ministerial delegates are simply on a fact-finding mission, no more, no less. Particular circumstances of the person, the offence, the conviction and the sentence are beyond the reach of those decision-makers: Obazughanmwen, at paras 31 and 39 (quoting Cha, at para 35). Such excluded personal circumstances include H&C considerations: Obazughanmwen, at paras 31 (quoting Cha, at paragraph 37) and 44-45; see also Lin v Canada (Public Safety and Emergency Preparedness), 2019 FC 862 at para 20 [Lin], aff’d 2021 FCA 81.
- For greater certainty, the exercise contemplated by subsections 44(1) and (2) is an administrative screening function that is only meant to look into readily and objectively ascertainable facts concerning admissibility: Obazughanmwen, at para 37; see also paras 27 and 30.
- These principles apply equally to foreign nationals and permanent residents: Obazughanmwen, at para 32; see also Lin, at paras 17-18. They also apply with equal force to sections 36 and 37 of the IRPA: Obazughanmwen, at para 41.
In Dass v. Canada (Public Safety and Emergency Preparedness), 2024 FC 624, Justice Ahmed ruled that while there is no obligation for CBSA to consider personal circumstances that this does not mean that delegates cannot consider them. Decision-maker bears the discretion to consider them, and they will not be faulted if they do not. Where they do so, the decision must be reasonable.
In Campagna v. Canada (Public Safety and Emergency Preparedness), 2025 FC 613, Justice Norris held that a determination that someone is inadmissible for organized crime has to go beyond mere guilt by association. Justice Norris also stated:
Nevertheless, it is well established that the Minister’s delegate (and the Inland Enforcement Officer) exercise a limited discretion (Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151 [Obazughanmwen FCA] at para 30). This discretion is limited because of the narrow question before the decision makers: Is referral for an admissibility hearing necessary to achieve the objectives of the IRPA, which include protecting public health and safety and maintaining the security of Canadian society (IRPA, para 3(h))? On the one hand, removing individuals on the basis of criminality (whether organized or otherwise) protects public safety and security by demonstrating that meaningful consequences can result if the social contract under which foreign nationals and permanent residents are welcomed to Canada (which includes the obligation that they behave lawfully) is breached and, furthermore, by protecting the public from those who, given their past conduct, may engage in criminal conduct in the future: see Medovarski v Canada (Minister of Citizenship and Immigration); 2005 SCC 51 at para 10, and Tran, at paras 40-45. On the other hand, it is not always the case that this step is necessary to meet the objectives of the IRPA given the particular circumstances of the case at hand.
[49] ENF 5, the enforcement manual mentioned above, explains to decision makers that, under section 44, officers and Minister’s delegates “have some flexibility in managing cases where the person is inadmissible”
and, in some circumstances, “the objectives of the IRPA may or will be achieved without the need to seek a removal order or write a formal inadmissibility report”
by taking some other step short of writing a report or seeking a removal order (such as sending a warning letter) (ENF 5, section 8.1). The manual instructs decision makers that this is a “limited discretion”
but, at the same time, it is one that is “variable and flexible”
and can respond to the specific circumstances of the case (ibid.).
[50] The manual also explains that, in the case of permanent residents, the relative weight of the factors involved in determining whether to recommend a referral of the subsection 44(1) report “will vary depending on the circumstances of the case”
(ENF 5, section 10.1). Permanent residents are “free to make submissions on any aspect of their personal circumstances which they feel would warrant retention of their permanent resident status”
(ibid.). Among the factors the manual suggests could be relevant in a given case are age at the time of landing, length of residence in Canada, location of family support and responsibilities, degree of establishment, criminality, and history of non-compliance and current attitude (“Has the permanent resident been cooperative and forthcoming with information? Has a warning letter been previously issued? Does the permanent resident accept responsibility for their actions? Are they remorseful?”
) (ibid.). (ENF 5 has been updated since the decision under review was made but these factors continue to be identified as potentially relevant in a given case.)