Canadian immigration has various programs for applicants who want to relocate to Canada from their countries, either temporary or permanently. A person and their family members can be eligible under those programs to fulfill their dreams (accumulate necessary points under skilled class or meet grounds of eligibility under other classes) to come to Canada, however some obstacles can nullify eligibility or cause immigration to be postponed. Those obstacles are:
- Criminality of the applicant or their family members;
- Medical barriers;
- Involvement in terrorism or not meeting security grounds.
In some situations, inadmissibility issues arise when a person is already in Canada and has their permanent residency status.
Who determines whether or not an applicant is inadmissible to Canada? If the application was made in one of our consulates or embassies, then the immigration officer at that consulate or embassy decides admission. If however a person is inside Canada (let’s say, somebody arrives at the airport in Canada) then the responsibility of determination lies at the hands of Immigration Division (ID). ID is a part of Immigration and Refugee Protection Board.
The practical situation with applicants is that, if you applied for any visa to Canada from your country and are found inadmissible (due to criminality, security or medical reasons), the decision of whether or not to allow you to Canada lies in the hands of immigration officer at the visa centre in your country (or country responsible for processing visas for your country). If you arrived to Canada and seek entry (for those foreign nationals who are exempted from applying at consulates/embassies first), the officers examine you on all admissibility issues and, if they find that you possess danger to Canada, you may be arrested, placed in one of our detention centres and your matter will be heard and decided by an adjudicator (judge) from the Immigration Division. You can leave Canada, if you agree that you are inadmissible and avoid detention, but if you feel you deserve to remain in Canada, you have rights to be heard by a judge.
With permanent residents, the situation is that, if a permanent resident (PR) lives in Canada, commits a criminal act, they might be removed from Canada and lose their PR status, if found inadmissible. Again, the decision will be made by the ID.
The admissibility sections can be found in the Immigration and Refugee Protection Act (IRPA) and Immigration and Refugee Protection Regulations.
The key point, with any application, is to think critically and to not believe that the immigration authorities are either always right or that you don’t have any remedies to prove that you are admissible.
It is very important, when applying to a visa to Canada, to answer all questions truthfully. There were quite a few devastating instances for my clients’ matters when they omitted to tell the truth to me, their counsel, and to immigration when filing the application forms. Very often, people think that their past criminality will for certain make them inadmissible, therefore they prefer to hide those facts, in hope that the authorities will never find out their past. This approach is very wrong because if your charges were dismissed, or you received a conditional or absolute discharge, you can still be admissible. Only being actually convicted can lead to inadmissibility. Additionally, not telling the truth can result in barring your entry to Canada for a number of years.
Admissibility issue applies to refugee seekers in Canada too. If a person claimed for a refugee protection, the case first comes to an immigration officer at Immigration, Refugees and Citizenship Canada (IRCC) where it is decided, within three days of the claim made, if that person is eligible to make a refugee claim. Among other questions, it is a question of whether or not a claimant is admissible to Canada on the grounds of security and criminality. Medical inadmissibility is not an issue because Canada signed a Geneva Convention to protect refugees whatever their medical condition might be. For example, there was a case in our office, when a person from Eastern Europe made a claim that he seemingly has grounds for asylum, however it was found that he was wanted by an Interpol for criminal charges in his country. His case was immediately referred to Immigration Division for an admissibility hearing and the determination of issuing him a removal order was made. The person was upset because he believed that he came from a corrupted country therefore making his criminal convictions invalid. He did not succeed because it was determined that, although his country was not perfect, it had rights to prosecute criminals.
Inadmissibility in cases when you, a Canadian or a PR, sponsor your family members to Canada.
The application to sponsor your family member (s) is usually made from outside Canada (of course, if your family is in Canada, you can make an application “from within”) and, if the decision making officer finds your family member inadmissible on the grounds of either criminality or medical, they refuse the entire application. Since your family member is not a PR yet, the constitutional right for them is not available. Still, the officer must act in a fair way. The sponsor (a Canadian or PR) has rights to appeal the decision of the officer to the Immigration Appeal Division in Canada (IAD). The good part of bringing the appeal to the IAD is that the division has jurisdiction to review whether it was an error in law or in fact and also apply humanitarian and compassionate considerations in their finding of admissibility. In simple words, if you present that your family member’s case refusal will negatively impact your well-being, then the adjudicator has rights to grant your appeal.
What practical steps can be done to prevent appeals to either IAD or a Federal Court? In our office, we take all measures to prevent situations where our clients are found inadmissible. Let’s talk about criminality. We had a case of a gentleman from Scotland who was waiting for his visa to Canada to be finalized for several months. The immigration officer in London’s office raised an issue of his past criminality. They wrote a “fairness letter” to him (he was handling his case by himself as he believed that, since he is fluent in English, he will be OK). He eventually gave up fighting the authorities and called us for help. We immediately contacted Scotland Yard with our request for that person’s criminal information. We received a response and found out that the crime our client committed was when he was 16 (decades before his existing application to Canada). Another factor was that the crime, if compared to a similar crime in Canada, was of a minor character and thus was not constituted as a serious crime. We wrote our legal opinion to the London office and received a positive decision on the application. You may ask why the immigration officer did not conduct a similar investigation. Well, very often officers are not in a position to dig deeper and analyse, making us, counsel, a very important part in the applicant’s applications to enter Canada.