Determining the admissibility of a foreign national or permanent resident is a complex process shaped by various factors outlined in the Immigration and Refugee Protection Act (IRPA). One critical dimension of this assessment is criminal inadmissibility, a status that may result in denial of entry or, for those already in Canada, potential removal, affecting foreign nationals, including visitors, students, workers, and permanent residents.
Is Criminal Inadmissibility a Concern for Foreign Nationals: Workers, Visitors, and Students
Understanding the circumstances under which a foreign national can be found criminally inadmissible involves an exploration of several key considerations.
A primary avenue to criminal inadmissibility for foreign nationals is the conviction of a criminal offense within Canada. The gravity of the offense and the corresponding sentence play pivotal roles in shaping the determination of admissibility. The Canadian immigration authorities scrutinize Criminal Records Act and the nature of the criminal sentence for the offense to ascertain its alignment with the criteria set out in the IRPA.
Criminal inadmissibility is not confined to convictions within Canada. Foreign nationals can also be found criminally inadmissible to Canada based on convictions for offenses committed outside the country. The crux of this assessment lies in establishing the equivalency of a foreign offense to a Canadian criminal offense. Immigration officers examine the fundamental elements of the foreign offense in comparison to the legal standards in Canada.
Is Criminal Inadmissibility a Concern for Permanent Residents
Permanent residents of Canada are subject to a different set of rules regarding criminal inadmissibility. If a permanent resident is convicted of a crime either inside or outside Canada, the individual may face serious consequences upon criminal conviction under foreign law, including the possibility of deportation. Convictions for offenses that would be considered serious criminality under Canadian law can lead to the issuance of a removal order.
Permanent residents have more extensive rights to appeal than foreign nationals.
A crucial aspect of this process hinges on the maximum term of imprisonment and the length of the sentence served. Should an individual's sentence be less than six months, they retain the right to appeal at the IAD, particularly on humanitarian and compassionate grounds. Conversely, serving a sentence exceeding six months results in the forfeiture of this right at the IAD stage, prompting individuals to consider alternatives, such as exploring options at the Federal Court of Canada.
Understanding the intricacies of criminal inadmissibility is pivotal for both foreign nationals and permanent residents. The appeal process, accessible to both groups albeit with distinct rights, assumes a critical role in fostering a fair and equitable immigration system. Effectively navigating the complexities of equivalency assessments and challenging decisions demands a profound knowledge of Canadian immigration laws. In this context, engaging the services of a seasoned Canadian immigration criminal lawyer is essential to skillfully navigate the intricate landscape presented by criminal inadmissibility.
Embarking on the journey of appeals and equivalency assessments requires the strategic guidance of a proficient lawyer. Their expertise in representing clients through these intricate processes ensures a comprehensive grasp of the nuances within Canadian immigration laws, contributing significantly to the pursuit of fair and just outcomes for individuals navigating the realm of criminal inadmissibility.
Is Serious Criminality or Criminality a Significant Factor in Immigration to Canada?
In Canadian immigration law, when an individual is convicted of a crime, Immigration Canada will determine whether the offense falls under the defined categories of Serious Criminality or Criminality. This assessment is crucial in understanding the potential impact on the individual's status, whether they are a foreign national or a Permanent Resident
How does Serious Criminality impact your admissibility to Canada?
A permanent resident or foreign national may be deemed inadmissible or serious criminality if they have a Canadian conviction that has a possible maximum prison term of at least 10 years or a sentence exceeding six months. They can also face inadmissibility if convicted outside Canada for an offense that, if committed in Canada, has a possible maximum prison term of at least 10 years, or if they commit an act abroad that, if done in Canada, has a possible of carrying a maximum prison term of at least 10 years.
Such offenses raise heightened concerns about public safety and security. Examples of serious criminality include serious violent crimes, drug trafficking, DUIs, assaults, and offenses that pose a significant risk to society.
How does Criminality impact your admissibility to Canada?
Only a foreign national may be deemed inadmissible on criminal grounds. Criminality does not render a permanent resident inadmissible. if convicted in Canada of an offense punishable by indictment or two offenses not arising from a single occurrence. Inadmissibility also applies if convicted outside Canada of an offense that, if committed in Canada, would be indictable or two offenses not arising from a single occurrence. Additionally, inadmissibility extends to committing an act outside Canada that is considered a crime there and, if in Canada, would be indictable. Lastly, it applies if they commit a prescribed offense upon entering Canada.
How Does IRCC Treat Serious Criminality and Criminality for Foreign Nationals?
For foreign nationals seeking entry to Canada, a finding of serious criminality or criminality can lead to inadmissibility. Immigration officers assess the nature and severity of the offense, considering factors such as the type of crime, the sentence imposed, and the potential risk posed by the individual to Canadian society.
In the case of serious criminality, the consequences are more severe. Foreign nationals found criminally inadmissible for serious criminality may be denied entry to Canada, detained, and issued a removal order.
For criminality that does not fall under the serious criminality category, the inadmissibility determination is made based on the specific facts of the case. Foreign nationals may still face denial of entry or additional scrutiny, but the consequences may be less severe compared to serious criminality.
How Does IRCC Treat Serious Criminality and Criminality for Permanent Residents:
Permanent residents of Canada face additional considerations when it comes to criminal inadmissibility. Convictions for serious criminality can result in the issuance of a removal order, potentially leading to the deportation of the permanent resident.
In cases of criminality that do not meet the threshold for serious criminality, permanent residents may still face consequences. The issuance of a removal order is possible, but the available appeals and remedies may offer more options compared to serious criminality cases.
What is the Immigration process for Criminal Inadmissibility to Canada?
The inadmissibility process in Canada is a structured four-stage framework designed for the potential removal of permanent residents or foreign nationals. However, it's crucial to note that not every stage is universally applicable to all temporary resident permit foreign nationals, and discretion varies across the process. Integral participants in this process include the Canada Border Services Agency (“CBSA”) and two divisions of the Immigration and Refugee Board of Canada: The Immigration Division (“ID”) and the Immigration Appeal Division (IAD).
Section 44 Report ("Inadmissibility Report")
The initial step is the Section 44 Report, initiated by a Canada Border Services Agency (CBSA) officer who identifies an individual as inadmissible. This report focuses exclusively on valid grounds for removal, with no latitude for consideration of humanitarian or compassionate factors. The report is then submitted to the Minister's delegate for review. Notably, the affected individual has the opportunity to present evidence before the report is transmitted.
Immigration Division (ID)
Should the Minister's delegate find the report well-founded, it may progress to the Immigration Division (ID) for an admissibility hearing. At this stage, discretionary powers come into play, allowing considerations for humanitarian factors, including ties to Canada, familial impacts, and potential hardships. Individuals not referred to the ID receive a cautionary notification, underscoring the presence of the report on their immigration file. At this critical juncture, the guidance of an adept immigration lawyer in Toronto becomes indispensable, affording affected individuals the opportunity to present evidence before the report is transmitted.
Admissibility Hearing
Conducting an admissibility hearing, the ID evaluates whether a permanent resident or foreign national is criminally inadmissible. With a focal point on the occurrence of a conviction, this stage lacks room for humanitarian and compassionate considerations.
Appeal at the Immigration Appeal Division
Foreign nationals lack the right to appeal a removal order. Only permanent residents possess this appeal right. For those confronted with potential immigration consequences, professional representation from an immigration lawyer becomes indispensable.
Beyond removal, individuals with criminal inadmissibility encounter a future entry ban. However, options like Record Suspension and special permission through Criminal Rehabilitation applications are available, both requiring discretionary decisions.
Why you need an Immigration Lawyer from AKM Law
For individuals grappling with the complexities of Canadian inadmissibility, securing the services of an experienced immigration lawyer in Toronto is not merely advisable - it is an essential strategic move. The legal team at AKM Law stands poised to guide individuals through each stage of the process, ensuring a comprehensive understanding of their rights and pursuing fair and just outcomes in the realm of Canadian immigration law. With an unwavering focus on successful resolutions, AKM Law's expertise stands as a valuable asset for those navigating the intricacies of inadmissibility in Toronto.
