Inadmissibility: Canada Immigration
Being inadmissible means that you cannot enter Canada without special permission. According to Canadian immigration law there are situations under which you can be deemed to be inadmissible in Canada. For example your inadmissibility can be due to criminality. Our Canada immigration lawyers guide clients on how to deal with inadmissibility to Canada issues. We assist clients in inadmissibility issues relating to:
- Assault convictions
- Criminal inadmissibility
- Criminal rehabilitation application
- Deemed rehabilitation
- Medical inadmissibility
- Temporary resident permit
- Removal orders
Criminal admissibility and assault convictions. If you have been convicted with charges of assault, your criminal record will make you criminally inadmissible to Canada. According to Canadian law, different types of assault convictions have different consequences. Our immigration lawyers in Canada will guide you on how prior convictions can have adverse effect on your Canadian immigration and how you can reduce those effects.
If if a potential immigrant has been convicted of an offense which is an indictable below offense under Canadian law, that potential immigrant is inadmissible to Canada. This is true even if the country of origin of the potential immigrant does not classify the offense as indictable. Therefore if the police records show that you have been convicted of a salt or drug trafficking or dangerous driving, you are inadmissible in Canada. In Canada, assault is hybrid offense which means it can be prosecuted either in a summary or indictable manner.
However once your criminal record shows assault conviction you are deemed to be inadmissible to Canada. There are certain ways in which you can overcome your criminal inadmissibility. The best way to overcome a prior assault conviction is to get a finding of rehabilitation in your favour. In certain cases, Canadian law treats prior assault conviction as deemed to be rehabilitated. If you want to come to Canada only temporarily, you can always apply for temporary resident permit rather than applying for permanent residency.
Canadian government considers that if you have rehabilitated then you are not likely to commit any crime in future. This means effects of your conviction and sentencing are mitigated. According to Canadian law, if you have completed your sentence at least 5 years ago, then you are eligible for criminal rehabilitation. If you have been convicted office salt more than once, or if if you have used some sort of weapon or if you have caused some bodily injury, then you must apply for criminal rehabilitation before entering Canada because then the view is is that you cannot be considered to have been deemed rehabilitated.
The concept of deemed rehabilitation works only if you have been convicted for one offense of assault and the conviction does not consider the offense as a serious offense. Moreover there should be gap of 10 years since you have completed your sentence and when you apply to enter Canada. If all these conditions are fulfilled, you will get a finding of deemed rehabilitation. Then and you will be considered to be admissible to Canada and you will not be required to opt for criminal rehabilitation.
If it is not possible for you to get other deemed rehabilitation or criminal rehabilitation, you must still enter Canada through a temporary resident permit. This permit is given to a person who wants to visit Canada for a specific purpose which may be related to work or family. Your application for temporary resident permit must specify the purpose of your visit to Canada. You may apply for temporary resident permit even if less than 5 years have passed since you completed your sentence in the offense of assault. This procedure can be adopted even if you have not been criminally rehabilitated or if you have filed for criminal rehabilitation but the decision has not been reached.
You may know that this permit is not what a grant of permanent residency. You will require this permit only till that time until which the Canadian government considers you as criminally rehabilitated. If you have any questions or if you want consultation about criminal in admissibility due to assault conviction, do contact us for a consultation with our Canadian immigration lawyers.]
If this sentence has ended less than five years ago and the offense is equivalent to a Canadian offense, then you are criminally inadmissible to Canada. Also criminal rehabilitation is not possible for you because 5 years have not lapsed. In such a circumstance you can try for temporary resident permit. If you have completed your sentence more than five years ago but 10 years have not lapsed and the offense is equivalent to a Canadian offense, then you are criminal inadmissible to Canada. In this case however, you are eligible for criminal rehabilitation because 5 years time period has lapsed. You can also try for temporary resident permit in this case. If the sentence has been completed more than 10 years ago and it is equivalent to a Canadian offense then you may be deemed rehabilitated and you may require no further action. However note that deemed rehabilitation does not apply where you have committed multiple offense of assault or in cases of serious criminality.
Criminal rehabilitation and temporary resident permit – Things are made more complicated by Canadian immigration law which says that if you have been convicted of an offense when you are major, you are criminally inadmissible to Canada. Not only that, if you have been arrested then the burden of proof is on you to show that after arrest, a decision in your favor was reached in the court. When you are criminally inadmissible in Canada, you cannot enter Canada for any reason. In such a case, you have a temporary remedy and a permanent remedy.
- Permanent remedy – The best option which you have is criminal rehabilitation in which you have to apply to the Canadian immigration authorities to give you a clean slate and to forgive your past mistakes. Once you are successful in this application, your criminal background cannot Bihar dal in your immigration to Canada. You are eligible for criminal rehabilitation application if 5 years have passed since you have completed your sentence. If you require entry in Canada before this period, you have to apply through a temporary resident permit.
- Temporary remedy – You can apply for a temporary resident permit despite of your criminal inadmissibility. However such applications, in case of criminal inadmissibility, are subject to strict scrutiny. If your temporary resident permit application is allowed, the permit is valid for 3 years and you may be allowed to enter Canada multiple Times. The duration of temporary resident permit varies from case to case as per merits of each case. Because of technicality of the application in case of criminal e inadmissible person, we would recommend that you make this application through a Canadian immigration lawyer only.
If you are present in person at a port of entry and Canadian immigration authorities suspect that you are criminal inadmissible in Canada, they will conduct your interview and reach a formal decision. This interview will provide you an opportunity to give explanation and it will also provide an opportunity to the Canadian immigration officers to use your statements against you. If you are not present in person at a port of entry and in this situation if the Canadian immigration authority suspect that you are criminally inadmissible to Canada coma they will provide you an opportunity to reply to the allegations of criminal in admissibility in writing. After this, Canadian immigration authorities will reach final decision. If you are present in person at a port of entry, they may refuse you to enter to Canada. However if you are not present in person, they may reject your application if they are of the opinion that you are not admissible to Canada.
Non serious and serious criminality – Canadian immigration authorities categorize cases of criminal inadmissibility into non serious criminality and serious criminality cases. For Canadian immigration authorities, it is not relevant whether the offense is serious or not in your native country. What matters is what the Canadian law says regarding the same offense that is the Canadian equivalent of the offense which you have committed. Depending on whether the Canadian immigration authorities view your offense as serious or non serious, there are different consequences for each of these.
- Non serious criminality – You are deemed rehabilitated if more than 10 years have passed since the completion of the sentence if you committed only one offense. If you committed multiple offenses then you are not doing rehabilitated even if 10 years have passed. You are eligible to apply for criminal rehabilitation with the Canadian immigration authorities if more than 5 years have passed since you completed the sentence. If 5 years have not passed, then you are not eligible to apply for criminal rehabilitation. In such a case you can apply for temporary resident permit.
- Serious criminality – Canadian immigration authorities consider the maximum sentence for the Canadian equivalent of the offense which you have committed to determine whether the offense has serious criminality or not. If the offense has serious criminality, then under no circumstances you can be considered as deemed rehabilitated. However if more than 5 years have passed change the completion of sentence, you can apply with the Canadian immigration authorities for serious criminal rehabilitation. If 5 years have not passed then you are not eligible to apply for serious criminal rehabilitation. In such a circumstance, the best option you have is to apply for temporary resident permit.
Criminal rehabilitation application
If you are criminal inadmissible to Canada, you cannot enter Canada for any reason. If you want to enter Canada, you will require special authorization by making an application to Canadian immigration authorities. This authorization is of two types. You may be allowed to enter Canada through a temporary resident permit or through a criminal rehabilitation authorization. Criminal rehabilitation application is an application where you request Canadian government for relief of a permanent type in the form of clemency of forgiveness for an offense which has been committed by you in a foreign country. If this application is successful and Canadian immigration authorities make a decision in your favor then your prior offenses will no longer be treated as hurdle in your entrance to Canada. It is like pardoning the offense committed by someone. This application is only required when the offense committed by you is an indictable offense in Canada.
In order to be successful in this application, you must be eligible to make an application. This means that 5 years must have passed since the completion of sentence. The first step in your application is to search the relevant provision of Canadian law which corresponds with the offence committed by you in your native country. Canadian immigration authorities do not consider how the offenses committed by you is punishable in your country. There are only concerned about the treatment of that same offense under Canadian law and whether that offense is considered serious or non serious as per Canadian law. As mentioned in the foregoing paragraphs, if you have committed only one offense then after a passage of 10 years from completion of sentence you are treated as deemed rehabilitated.
- Non serious criminality – Non serious criminality is a term which is used for certain type of offenses which are not considered serious by nature by the Canadian immigration authorities. However an offense is still an offense and a foreign national is therefore criminally inadmissible to Canada even in cases of non serious criminality. You are therefore required to undergo the complete rehabilitation process before you can be allowed to enter Canada. The processing time for non serious criminal rehabilitation is less then serious criminal rehabilitation. If if you have been convicted of just one offense then you are considered deemed rehabilitated on the passage of 10 years from the date of of completion of sentence.
- Serious criminality – Serious criminality is a term which is used for those offenses which are considered to be serious in nature by the Canadian immigration authorities. The best example is any indictable offense like truck trafficking and drug possession. In Canada, an offense which is punishable with the maximum imprisonment of 10 years is considered a serious criminality offense. The duration of maximum imprisonment for an offense is the only criteria which is used by Canadian immigration authorities to determine serious criminality. Serious criminality cannot be cured by deemed rehabilitation and a person is always required to apply for criminal rehabilitation. The criminal rehabilitation process is same for or the non serious criminality and serious criminality. The processing time for a serious criminality application is longer then that of non serious criminality.
There are situations where foreign nationals who our criminal inadmissible and therefore unable to enter Canada may apply for deemed rehabilitation status. If this application is allowed, the former convictions cannot be the basis for the Canadian immigration authorities to restrict the entry of foreign national in Canada. This relief to a foreign national is based on lapse of time. Deemed rehabilitation is possible only when a person has been convicted of a single offense. It is not applicable in case of multiple convictions.
Criminally inadmissible status and subsequent rehabilitation are applicable only in those cases where the corresponding offense in Canada is an indictable offense and the maximum sentence is 10 years. Further, it is mandatory that 10 years should have passed since the completion of sentence of the foreign national. The person should not have more than one summary offense on his record.
If the person has been convicted outside Canada and the offense, if it is committed in Canada comma would be a summary offense then there must be a gap of 5 years since the completion of the sentence. In this case, the individual must not have been convicted of any offense in Canada in last 5 years or more than one summary of fences in 5 years before that period. Further, the individual must not have been convicted outside Canada for an offense which would be indictable offense in Canada or for more than one summary offense in five years period before that.
If the person has committed an offense outside Canada and its equivalent would be an indictable offense in Canada then there must be a gap of 10 years starting from the completion of sentence. In this case, the individual must not have been convicted of an indictable offense outside Canada or any offense in Canada for the last 10 years or he must not have been convicted of one summary offense in 10 years before that period. Also the individual must not have been convicted outside India for an offense in the last 10 years and the offense must be such that if the offense is committed in Canada it would be indictable offense or the person must not be convicted outside Canada with more than one summary conviction in 10 years preceding that.
Entering Canada with DUI
Any foreign national who has been convicted for driving under the influence of alcohol is criminally inadmissible to Canada. This means that such a foreign national cannot enter Canada not only as a visitor but also as a part of any Canadian immigration program. There maybe issues when any family member of such a person wants to come to Canada the conviction for DUI.
Throughout the world, conviction under the influence of alcohol has different legal terms. However what matters is that as per Canadian law once a person has been convicted of an offense, that person is criminally inadmissible to Canada. It is not relevant consideration for the Canadian immigration authorities as to what procedure you went through before you were convicted. What matters under the Canadian immigration law is that any indictment under DUI renders you criminal inadmissible to Canada.
What is the solution if you have been rendered inadmissible because of prior conviction for DUI?
There are two types of solutions in such a situation. This has been explained above also. There is a temporary solution and a permanent solution. The temporary solution is that you may apply for a temporary resident permit and then come to Canada for a short period of time. When a person has been convicted for an offense of driving under influence, one should have a good reason to apply for temporary resident permit. Your application will be decided by the Canadian immigration officer and he will consider the fact that since you have not got criminally rehabilitated, the temporary e resident permit might be the best remedy for you considering your prior conviction. Depending upon the merits of you case, duration for which a temporary resident permit will be issued to you will vary. Generally, individuals make their application for temporary resident permit through the designated Canadian consulate. However there can be a situation where a person main seek temporary resident permit at the port of entry in Canada.
The permanent solution if you have been convicted of an offense of driving under the influence of alcohol is to seek criminal rehabilitation or get deemed rehabilitation. As explained above, you can file a petition for criminal rehabilitation before the Canadian immigration authorities to forgive the prior convictions on your record. In order to qualify for this, 5 years must have lapsed change the completion of your sentence. Once this process is complete, your entry to Canada cannot be restricted because of past record of DUI. You may also be eligible for deemed rehabilitation if 10 years have lapsed since the completion of your sentence.
A foreign national is required to undergo medical examination buy a physician has been approved by indian immigration authorities in case he is applying for permanent resident permit. This medical examination include physical examination and blood tests. However, the approved physician also review prior medical records.
If it is found that the health of a foreign national is likely to endanger the health or safety of Canadian public, such a foreign national may be treated as medically inadmissible to Canada. One of the most common diseases for medical in admissibility is is active pulmonary tuberculosis TB. In case you have such a disease, you will be issued a procedural fairness letter in which it will be mentioned that the Canadian authorities intend to reject your application because of medical inadmissibility. It may also be mentioned that you will be medically inadmissible unless you are medically treated as per Canadian medical standards. The disease include not only the physical but also mental diseases like sociopathic behavioral conditions, brain disorders related to violent behavior or some type of disruptive behavior.
The other reason for which a person may be treated as medically inadmissible to Canada is that if if there admission will strain the health services provided by the Canadian government. The term health services is broadly defined and includes all the services related to health for which the federal and provincial governments provide the funds. It includes the supply of medicines, hospital care, doctors nurses and laboratory services. In relation to the issue of medical inadmissibility, the examples of social services are specialized residences and social rehabilitative services. The main considerations before the Canadian immigration authorities are the tentative costs in curing the foreign national in the context of Canadian per capita health services over a period of time.
When a foreign national is expected to be medically inadmissible coma a procedural fairness letter is is issued to the foreign national by the Canadian immigration officer. Its purpose is to give an opportunity to the foreign national to respond to the suspicion of the immigration officer. Sometimes a disease which will not be a ground of medical in admissibility is mistakenly made a ground for the issuance of procedural fairness letter. Generally these cases are borderline cases and the Canadian officials have discretionary powers to decide them. Because of this, it is important to have a detailed response to the procedural fairness letter as per Canadian legal requirements.
Temporary resident permit
If you are inadmissible to Canada, your status of ine admissibility must be changed before you can enter Canada. However, another way to enter Canada despite inadmissibility is to apply for a temporary resident permit. If this application is successful, you can enter Canada for a specific period of time. As stated above, if you are criminally inadmissible aur medically inadmissible, you cannot enter Canada without the express permission of Canadian immigration authorities. You have to prove in your place that there is any important reason to enter Canada which must be allowed despite you being inadmissible to Canada. For this purpose, you have to make an application for a temporary resident permit. This is a temporary solution.
If you require a permanent solution the only remedy is either criminal rehabilitation or deemed rehabilitation. If you do not seek a permanent solution, you will be required to apply for temporary resident permit each time you are to enter Canada. You can also apply for a temporary resident permit with multiple entry access. This type of permit is valid only for less than 3 years. Duration for which it is will it depends on the immigration officer who is to decide it as per his own discretion.
A temporary resident permit is required if a foreign national has been convicted of an offence and a period of 5 years has not lapsed change the completion of the sentence. If this period has already passed you have to apply for criminal rehabilitation because you are not consider to be automatically rehabilitated. If if you are eligible for making this application, you have to make it either before applying for temporary resident permit or while applying for temporary resident permit. The application for temporary resident permit can be made to a designated Canadian consultant or you can also make this application at any Canadian port of entry value are present in person.
A temporary resident permit, at the time when you are inadmissible to Canada, is only for a predetermined duration which is less than 3 years. You cannot renew an existing temporary resident permit. It is therefore important to get as long period as possible for temporary stay in Canada.
It may happen that a person reaches a port of entry without a will it authorization to enter Canada, and at that moment he is refused entry to Canada. In such a case you have to get permission to enter Canada. There are several reasons because of which entry to Canada may be refused to a person by Canadian immigration authorities. Generally these reasons related to inadmissibility for errors by integration authorities. Only qualified Canadian immigration lawyer can assist you in knowing the reasons of denial of entry to Canada.
Three types of removal orders which may be passed by Canadian immigration authorities.
- Detention order. If a detention order has been passed against you, you have to leave Canada within 30 days of that order. If you do not comply with the order, deportation order is issued against you.
- Exclusion order. And order for your removal from Canada which is not based on any criminality or human rights violations is called exclusion order. Define exclusion order is passed against you, you are banned from Canada for 1 to 2 years. You can apply for authorization to return to Canada ARC if you want to enter Canada before the period of exclusion.
- Detention order. If an allegation of criminality or human rights violation has been made against you, an order to deport you can be passed. There are many other reasons and grounds on which deportation order can be passed. Deportation order permanently pass you from entering Canada unless you get authorization from Canadian immigration authorities.