Section 37 of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality. It states: 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. Application (2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized … Read More
Rehabilitation Applications
Section 36(3)(c) of the Immigration and Refugee Protection Act provides the legislative basis for rehablitation applications. It states that: 36(3)(c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated. IRCC Rehabilitation Guide The following PDF is IRCC’s United States Criminality Assessment Guide. As well, here is an internal IRCC New York memo which provides context on the number of rehabilitation applications that they receive. Where To Submit IRCC’s preference is that rehabilitation applications be submitted separate from permanent or temporary residence applications. Statistics Jurisprudence In Hadad v. Canada (The Minister of Citizenship, Immigration, and Multiculturalism), 2011 FC 1503, the Federal Court affirmed several important principles of rehabilitation applications, including that: The Minister should take into consideration the unique facts of each particular case and consider whether the overall situation warrants a finding that the individual has been rehabilitated; rehabilitation is forward looking; and an officer commits a reviewable error if they too much importance to … Read More
Authorizations to Return to Canada
Section 52(1) of Canada’s Immigration and Refugee Protection Act provides that a person who has been removed from Canada cannot return to Canada unless the person first receives specific authorization from immigration authorities. This authorization is known as “authorization to return to Canada” (an “ARC“). Whether an ARC is needed will depend on what type of removal order the person received. Types of Removal Orders Removal orders can be issued by officers at ports of entry, inland enforcement officers and the Immigration and Refugee Board’s (the “IRB”) Immigration Division. There are three types of removal orders in Canada. These are the “Departure Order,” the “Exclusion Order,” and the “Deportation Order”. A Departure Order requires that a person leave Canada within 30 days after the order becomes enforceable. Failure to do so causes the Departure Order to become a Deportation Order. Examples of where a Departure Order would occur is a permanent resident who fails to meet their residency obligation or eligible refugee claimants who are pending a deciison by the IRB. An Exclusion Order provides that the removed person cannot return to Canada for one year unless the person obtains ARC. For Exclusion Orders resulting from misrepresentation the bar is five years. … Read More
The Cost of Escorted Removals and Detentions
In May 2011, the Government Consulting Services prepared a report for the Canada Border Services Agency titled Identification and Assessment of Options for the Escort Program (Project Number: 520-1412). This blog post is a summary of that report. As the report is over 30 pages, please contact me if you want me to e-mail you a copy of the entire report. In brief, in 2010/11 the cost of escorted removals was $7.5-million dollars, with an average cost per escorted removal at $13,933.00. The estimated total time spent by the CBSA to complete escorted removals during this time was 78,160 hours. As noted in the report, the decision as to whether a foreign national’s removal will be escorted or not lies with the Inland Enforcement regional managers or supervisors who oversee removals. The assessment focuses on many factors related to determining the level of risk likely to be present during the removal such as: the person’s comportment, anticipated reaction to their return to the country of destination, the length of the trip, and/or the transit point(s), the person’s past criminal behaviour, their physical and psychological condition, and more. In some cases, a medical escort may also be provided by the CBSA. The … Read More
Inadmissibility for Terrorism or Membership in a Terrorist Group
The Federal Court of Appeal has answered a question regarding inadmissibility under s. 34 of IRPA.
Inadmissibility for Acts of Violence that Would or Might Endanger the Lives or Safety of Persons in Canada
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 … Read More
A44 Reports
Section 44 of the Immigration and Refugee Protection Act states: Preparation of report 44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. Referral or removal order (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. Conditions (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order. Conditions — … Read More
Immigration Consequences of a Conviction and Sentence in Canada
A person who has been found to be inadmissible to Canada on the grounds of serious criminality may not appeal to the Immigration Appeal Division.
Restrictions on H&C
Section 25 of Canada’s Immigration and Refugee Protection Act provides that applicants can seek humanitarian & compassionate relief from the harsh application of other portions of Canadian immigration legislation. When the IRPA was created s. 25 was short two paragraphs, and read: 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. Provincial criteria (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. In 2020, s. 25 is much longer, and reads: 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent … Read More
Juveinile Offenders and Canadian Immigration
Canada’s Youth Criminal Justice Act, SC 2002, c 1 defines a young offender as being someone who is 12 years of age or older, but under 18. Convictions under the Youth Criminal Justice Act Section 36 of the Immigration and Refugee Protection Act regulates when a foreign national or permanent resident can be inadmissible for criminality. Section 36(3)(e)provides that: (e) inadmissibility under subsections (1) and (2) may not be based on an offence (i) designated as a contravention under the Contraventions Act, (ii) for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or (iii) for which the permanent resident or foreign national received a youth sentence under the Youth Criminal Justice Act. It is important to note that unlike in some jurisdictions, juvenile offenders in Canada are not transferred to adult court. Instead, the Youth Criminal Justice Act established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. If a youth in Canada receives an adult sentence, then they can be inadmissible to Canada … Read More