The Expansion of Inadmissibility for Espionage

Steven MeurrensUncategorized

The first few weeks of 2024 have been marked by developments that could significantly increase the number of people banned from Canada for espionage.

The first was the Federal Court of Canada decision in Li v. Canada (Citizenship and Immigration), 2023 FC 1753 (“Li”), wherein the Chief Justice said that what constitutes “espionage” must evolve “as hostile state actors increasingly make use of non-traditional methods to obtain sensitive information in Canada or abroad, contrary to Canada’s interests.”

The second was the Government of Canada’s announcement of a New Policy on Sensitive Technology Research and Affiliations of Concern (the “Policy”).  The Policy included the publishing of a list of around 100 research organizations and institutions in China, Russia and Iran that pose “the highest risk to Canada’s national security due to their direct, or indirect connections with military, national defence, and state security entities.”

The Canadian government clearly has concerns about individuals providing sensitive information to foreign entities.  It is less clear if the security provisions of Canada’s Immigration and Refugee Protection Act are the appropriate tool to address this.


In Li, the Chief Justice held that it was reasonable for a visa officer to determine that a prospective Chinese PhD student, Mr. Li, was inadmissible to Canada for espionage because he may in the future be targeted and coerced by the Chinese government into providing information that would be detrimental to or contrary to Canada’s interests. There was nothing to suggest that Mr. Li has a present or future intention to provide such information to the Chinese government.  Rather, the concern was future coercion or co-opting.

The notion that permanent residents and foreign nationals can be inadmissible for espionage because they may in the future be co-opted or coerced into providing sensitive information to a foreign entity seems very broad.  It is not clear what limiting principles exist.  For example, the Chief Justice noted that the Chinese government is recalling Chinese executives, researchers and engineers who have worked overseas to lead innovative Chinese companies and increase their success in the microfluidics industry. Are all Chinese citizens in Canada, including Canadian permanent residents, who work in this industry now inadmissible for espionage because they may in the future be co-opted or coerced into returning to China?

The Policy

Canada’s new Policy on Sensitive Technology Research and Affiliations of Concern prohibits federal funding of research in sensitive areas if a foreign researcher holds an affiliation with a named organization or institute. The Policy is limited to current affiliations, and states that “if an undergraduate student has previously studied or worked at a listed institution but has since left the institution and maintains no formal obligation to return to being affiliated with the listed institution, then they are not currently affiliated to that institution and do not raise a concern with regards to this policy.”

Unfortunately for current and prospective immigrants, while the Policy contains a temporal limitation for the purpose of government funding, its description of named research organizations as potentially posing a risk to Canada’s national security, combined with the broad principles in the Li decision, could have dire consequences.

Inadmissibility for Espionage

Canadian immigration law provides that a foreign national or permanent resident is inadmissible to Canada if they are, have been, or will be a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage that is against Canada or that is contrary to Canada’s interests.  The test for “membership” has a broad interpretation and does not require someone to have contributed significantly to the nefarious actions of an organization.

A person who is found inadmissible to Canada for espionage is inadmissible to Canada for life.  Visa officers, the Canada Border Services Agency and the Immigration and Refugee Board are all prohibited from considering other factors, including humanitarian or compassionate consideration. The only recourse is to submit an application for ministerial relief on the grounds that a person’s entry to Canada is not contrary to the national interest. This assessment typically takes the Canada Border Services Agency over a decade to decide.

As well, the immediate family members of a person who is inadmissible to Canada for espionage are also inadmissible.

It is not clear that these severe consequences are appropriate for someone where the concern about them is that they may be co-opted or coerced into providing information in the future.

Alternative Approaches

In Li the Chief Justice cited President Trump’s Proclamation 10043 as part of the rationale for expanding the concept of inadmissibility for espionage.  Proclamation 10043, however, contains numerous limiting principles do not exist in Canadian inadmissibility law.  President Trump’s ban does not apply to United States permanent residents or undergraduate students. The limitation on entry in Proclamation 10043 is not a lifetime ban, but rather limits the issuance of F and J visas. United States consulates can, and have, issue quick national interest exemptions.

In 2020 the Canadian government chose to not follow President Trump’s lead when he issued Proclamation 10043. It now appears that Canada as a result of bureaucratic decisions and Federal Court jurisprudence is adopting a much more restrictive regime. As far as I am aware there have been no comments at the political level on this expansion of who is inadmissible to Canada for espionage and its resulting consequences.  If this is not the intention of the Trudeau government, then they should act soon.