Criminal inadmissibility and Spousal Sponsorship
Criminal inadmissibility to Canada can be based on a foreign national's criminal history, which can include non-violent offences like a conviction for driving under the influence (DUI). Because of this, you may be turned away at Canada's border or denied boarding on a flight to the country if you try to use a Canada eTA. All immigration programs, including spousal sponsorship, can be affected by criminal inadmissibility.
A foreign national's ineligibility for immigration to Canada may be based on a criminal conviction that occurred as long as fifteen or twenty years ago. As a result, it is important to understand the implications of your criminal history and how it might impact your ability to travel to Canada or sponsor a family member.
If a foreign national has been convicted of an offence in the past, it is highly recommended they review Canada's immigration laws to determine whether they are eligible to travel or sponsor family members.
Processing time: 12 - 27 months
TRP: 3 years
Deemed Rehabilitation: 5 years
Use H&C factors to appeal to IAD
What does Criminally Inadmissible Mean?
Criminally inadmissible is a term used to describe someone who has been convicted of a crime, either in Canada or abroad, and therefore cannot enter or remain in the country due to Criminal Inadmissibility. Criminal Inadmissibility can have a huge impact on spousal sponsorship applications. The Canadian government requires that all applicants for permanent residence must be admissible to Canada, which means having no Criminal Inadmissibility. In cases where one partner has been convicted of a crime, they may still be eligible to apply for spousal sponsorship, but the sponsor must prove that their partner's Criminal Inadmissibility will not pose any risk to public safety or health.
Furthermore, they must provide evidence that the benefits of allowing their partner to become a permanent resident outweigh the risk associated with their Criminal Inadmissibility. In cases where an individual has been convicted of a serious crime, such as a violent or sexual offence, it is more difficult to provide such evidence and be approved for spousal sponsorship. Despite this, the Canadian government does make provisions for those who have been convicted of a crime to still be allowed to apply for permanent residence. If a sponsor can show that their partner has made efforts to rehabilitate themselves, or that the crime was committed many years ago and they have not been in any trouble since, then the Canadian government may be more likely to approve the application.
How does Criminal Inadmissibility affect a sponsorship application?
Canadian immigration laws are strict, and those with a history of Criminal Inadmissibility may face significant challenges when attempting to sponsor a family member in Canada.
It is crucial for foreign nationals to understand that their Criminal Inadmissibility may have implications for their ability to travel to or sponsor family members in Canada. The Canadian government takes a hard stance on Criminal Inadmissibility, and those who have been convicted of an offence, even if it was in the past, may find it difficult to overcome Criminal Inadmissibility and sponsor a family member into the country. Therefore, it is essential for those with Criminal Inadmissibility to research and become familiar with the relevant immigration laws in Canada prior to submitting an application for entry or sponsoring a family member.
Consequently, if your spouse or partner has Criminal Inadmissibility, your application to sponsor them through inland sponsorship or outland sponsorship to Canada may be refused on grounds of Criminal Inadmissibility.
Before sponsoring your spouse, it is essential to assess your own eligibility as a sponsor. You can use the Sponsorship Eligibility Tool to determine if you meet the necessary criteria. To be eligible, you must:
Be a Canadian citizen or a permanent resident of Canada
Be at least 18 years old
Be able to provide financial support to your spouse or partner and any dependent children
Not have any outstanding sponsorship undertakings or debts to the government
Not be in receipt of social assistance (except for disability)
Not have a history of violent crime, sexual offenses, or offenses against a family member
Not be in default of any court-ordered support payments
Not be in prison or have an outstanding arrest warrant
Not be under a removal order from Canada
Overcoming Criminal Inadmissibility for Spousal Sponsorship
You or your spouse/partner may be ineligible for spousal sponsorship to Canada if you or they have a criminal record. In such cases, the person will have to apply for Criminal Rehabilitation or Deemed Rehabilitation in order to overcome Criminal Inadmissibility.
Criminal Rehabilitation is a process by which the Canadian government declares that a person with a criminal record has been rehabilitated and is no longer considered criminally inadmissible. To be eligible for Criminal Rehabilitation, the person must have completed all sentences imposed on them for any offence for which they were convicted, and at least 5 years must have passed since their sentence was completed. The person must also demonstrate that they are not likely to commit any future criminal offences and that they pose no threat to Canadian society due to Criminal Inadmissibility.
Criminal inadmissibility can be a significant barrier to entering Canada. If you have a criminal record, you may be deemed inadmissible on the grounds of criminality. However, there are ways to overcome criminal inadmissibility and gain entry to Canada. Here are the available options and relevant case laws to help you understand the process.
1. Deemed Rehabilitation
If a certain period has passed since the completion of your sentence, you may be considered "deemed rehabilitated." Deemed rehabilitation depends on the type and number of convictions and the time elapsed since the sentence was completed. For example:
For a single non-serious crime, you may be deemed rehabilitated after ten years have passed since the completion of your sentence.
For two or more non-serious crimes, you may be deemed rehabilitated after five years have passed since the completion of your sentence.
2. Individual Rehabilitation
If you are not eligible for deemed rehabilitation, you can apply for individual rehabilitation. To be eligible, at least five years must have passed since the completion of your sentence. You will need to submit an application to Immigration, Refugees and Citizenship Canada (IRCC) and provide proof that you have been rehabilitated and are not likely to reoffend.
3. Temporary Resident Permit (TRP)
A TRP may be granted to individuals with a criminal record, allowing them to enter Canada temporarily. TRPs are typically reserved for exceptional cases where the need to enter Canada outweighs the risk to public safety. The permit's validity can range from one day to three years, and it can be extended or revoked at any time.
Relevant Case Law
While specific case law examples involving sexual offenses in the context of spousal sponsorship applications may be limited, the following cases offer insight into how criminal inadmissibility and rehabilitation are addressed in Canadian immigration law. These cases can provide valuable context when considering the impact of a sexual offense on a spousal sponsorship application.
Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FC 230: This case established that rehabilitation should be assessed based on an individual's current risk of reoffending rather than the severity of the original offense.
Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431: This case highlighted the importance of considering the applicant's positive contributions to society, such as community involvement, when assessing individual rehabilitation.
Stewart v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 21271 (FC): This case emphasized that for an applicant to be considered rehabilitated, they must demonstrate that they have made a genuine effort to change their behavior, and that the risk of reoffending is minimal.
Saini v. Canada (Minister of Citizenship and Immigration), 2001 FCT 775: This case clarified the relationship between criminal inadmissibility and rehabilitation, indicating that rehabilitation is a potential remedy for overcoming inadmissibility.
R. v. Vokey, 2007 NLCA 2: This case examined the importance of evaluating the nature and severity of the offense, the passage of time, and the individual's behavior since the offense when assessing rehabilitation and the risk of reoffending.
While these cases may not directly address sexual offenses in spousal sponsorship applications, they provide a broader understanding of how criminal inadmissibility and rehabilitation are assessed in Canadian immigration law.
Once either Criminal Rehabilitation or Deemed Rehabilitation has been approved, the individual can then be sponsored for entry into Canada. Both applications require thorough documentation and evidence of the applicant's rehabilitation and are assessed on a case-by-case basis.
Impact of Committing a Sexual Offense on Spousal Sponsorship Application
Having a criminal record, particularly involving a sexual offense, can have significant implications for both the sponsor and the sponsored spouse in a spousal sponsorship application. In this article, we will discuss the impact of committing a sexual offense on the spousal sponsorship process.
Impact on the Sponsor
If you are the sponsor and have committed a sexual offense, it may affect your eligibility to sponsor your spouse or partner. Canadian immigration law imposes specific restrictions on individuals with a history of violent crime, sexual offenses, or offenses against a family member.
A person convicted of such offenses may be ineligible to sponsor their spouse unless they can demonstrate that they have successfully completed a rehabilitation program, and a certain period has passed since the end of their sentence. The required period depends on the nature and severity of the offense.
If you are deemed ineligible to sponsor your spouse due to your criminal record, your sponsorship application may be refused.
Impact on the Sponsored Spouse
If the sponsored spouse has committed a sexual offense, they may be deemed inadmissible to Canada on the grounds of criminality. In this case, the spousal sponsorship application may be denied.
Overcoming criminal inadmissibility for Canada involves understanding the options available, such as deemed rehabilitation, individual rehabilitation, and obtaining a Temporary Resident Permit.
Temporary Resident Permit and its benefits for Criminal Inadmissibility
Although it is only a short-term solution and may not assist with spousal sponsorship, a temporary resident permit can also help someone overcome Criminal Inadmissibility in Canada.
A temporary resident permit (TRP) and a temporary resident visa are two completely different documents that should never be confused. A TRP enables a person to overcome Criminal Inadmissibility for a set period of time (up to 3 years). To have your application approved, you must demonstrate that you have a compelling reason to enter Canada, even if it is only temporarily.
However, keep in mind that the TRP cannot be used to gain entry into Canada to begin the permanent residency process. It is necessary to apply for rehabilitation in order to permanently overcome Criminal Inadmissibility. The TRP can assist you in visiting a loved one until the Criminal Inadmissibility is lifted. The Criminal Inadmissibility can be lifted by applying for rehabilitation or being deemed rehabilitated. To be eligible for rehabilitation, at least five years must have passed since the completion of the criminal sentence.
Let's go over the three types of offences that exist in Canada to better understand your spouse's situation:
Summary offences: These are less serious offences that can result in up to 6 months in prison or a $5,000 fine.
Indictable offences: include robbery with violence, theft exceeding $5000, assault, and sexual assault. Individuals who commit these offences typically face harsh penalties, including life imprisonment.
Hybrid offences: The crown counsel will decide how the offence will be handled in this case. It could be treated as either a summary or an indictable offence. Any hybrid offence is automatically considered indictable in immigration law for the purposes of determining Criminal Inadmissibility.
As a result, determining the type of offence and the section of the law under which it falls can help you determine whether your sponsorship application has a high chance of success. A foreign national is inadmissible to Canada under section 36(2)(a) of the Immigration and Refugee Protection Act if they have been convicted of an indictable offence or two summary offences in Canada. Other sections make similar provisions for people who have been convicted of crimes in other countries. A foreign national may also be found inadmissible if they commit a "criminal act," even if they have not been convicted of a crime. Because of these broad provisions, most criminal convictions or actions will render a foreign national criminally inadmissible to Canada.
Common Misconception About Overcoming Criminal Inadmissibility
You need to wait for 5 years before you can apply for sponsorship or permanent residence if you are serving criminal inadmissibility - NOT ENTIRELY CORRECT.
I do not need to mention an offence where I was not charged with a crime and was only accused of committing one or I was not declared guilty of a crime - INCORRECT - Even if a charge doesn't show up on a Police Background Check, a person still has to give all the information about it to IRCC while applying for any type of immigration to Canada. All charges must be disclosed even if they were dropped. Failure to declare may result in MISREPRESENTATION and a further BAN from applying to immigrate to Canada.
Also, a foreign pardon will not automatically clear an individual's inadmissibility
If your spouse is deemed criminally inadmissible to Canada, there may still be options for spousal sponsorship. In this case, you can appeal the decision to the Immigration Appeal Division (IAD) on humanitarian and compassionate grounds. This can allow you to sponsor your partner even if they are found to be inadmissible due to criminal activity.
The IAD will assess all the evidence presented during the appeal, including any mitigating factors that show your partner has rehabilitated and is not a threat to society. The IAD may also consider how long it’s been since the offence was committed and if there have been any other offences since then. If they decide that your partner has indeed been rehabilitated and poses no threat to Canadian society, they may grant the appeal and deem them admissible.
In some cases, deemed rehabilitation may be granted to those who are criminally inadmissible. This means that if your partner has committed a crime in the past but has remained crime-free for at least 10 years after, they may be deemed to be rehabilitated and allowed to enter Canada on a spousal sponsorship.
Ultimately, an appeal on humanitarian and compassionate grounds or deemed rehabilitation is an option for those wishing to sponsor a spouse who is criminally inadmissible to Canada. While the decision of the IAD can vary, it is possible to overcome criminal inadmissibility if you can demonstrate that your spouse has been rehabilitated and poses no threat to Canadian society.
Relevant section of H&C law that is used to overcome Criminal Inadmissibility
Humanitarian and compassionate considerations — request of foreign national
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
According to section 25(1) of the IRPA, the Minister of Immigration, Refugees and Citizenship can grant permanent resident status or an exemption from any applicable criteria or obligations of the Act if they are of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. In this context, criminal inadmissibility can be overcome by appealing for a grant of permanent residence on humanitarian and compassionate grounds. This appeal must demonstrate why allowing the individual to stay in Canada would be in the best interests of their family and the community as a whole.
Thus, despite the fact that criminal convictions or actions may render a foreign national criminally inadmissible to Canada, there is still hope for such individuals.
You can submit a spousal sponsorship application along with a Criminal Rehabilitation application and the $200 or $1,000 fee that goes with it, as well as written arguments and proof of Criminal Rehabilitation.
Need help in applying for Sponsorship? Hire an authorized paid representative.
Familiarizing yourself with relevant case law can also provide valuable insights into the decision-making process and increase your chances of success. It is recommended to consult with an experienced immigration lawyer or immigration consultant to help navigate the complex process of overcoming criminal inadmissibility.
Hiring a representative is not required, but it can be helpful, especially if you're not familiar with the application process. If you decide to hire a representative, be sure to choose someone who you trust and who you feel comfortable working with.