Understanding Inadmissibility: Overcoming Criminal Inadmissibility

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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court. She can be reached at zeynab@ziaielaw.com.

Last week I wrote about who may be criminally inadmissible to Canada. But are there any ways in which you may be able to overcome criminal inadmissibility?

The good news is that the answer may be yes.
Depending on the crime, how long ago it was committed, and how you have behaved since, you may still be allowed to come to Canada, if you:

  • convince an immigration officer that you meet the legal terms to be deemed rehabilitated,
  • apply for rehabilitation and are approved,
  • are granted a record suspension or pardon, or
  • apply for and obtain a Temporary Resident Permit.

Rehabilitation means that you are not likely to commit new crimes. Deemed rehabilitation means that enough time has passed since you were convicted such that your crime may no longer bar you from entering Canada. You may be deemed to be rehabilitated if your offence was a summary offence and at least 5 years has passed since the sentence was served, or it was an indictable offence punishable by a maximum imprisonment of less than 10 years, and at least 10 years has passed since you completed the sentence.

In other situations it may be more appropriate to submit a rehabilitation application to be allowed to enter Canada. In addition to meeting the eligibility criteria, you will have to show that you have rehabilitated, you are highly unlikely to take part in further crimes and at least 5 years has passed since the end of your criminal sentence and the day you committed the act that made you inadmissible.

The next option is to apply for a discharge or pardon. If your offence occurred in Canada and your charges have been withdrawn, dismissed, discharged (absolute or conditional), or pardoned under the Criminal Records Act, you are not considered criminally inadmissible.

If you are able to obtain a pardon, it will permanently erase your Canadian criminal record, “and any consequences of inadmissibility resulting from it” within Canada. However, if your offence occurred outside of Canada, we will have to check to determine what impact the foreign record suspension or pardon will have on your admissibility.

Finally, you may be able to apply for a Temporary Resident Permit (“TRP”) that will allow you to enter or stay in Canada if it has been less than 5 years since the end of your sentence or you have valid reasons to be in Canada.

In order to apply for a TRP, the need for you to enter or stay in Canada must outweigh any safety risks to Canadian society. You must be able to convince the immigration or border officer that your visit to Canada is justified. In assessing your application, the officer will look at various risk factors such as the seriousness of the offence, how much time has passed since the offence was committed, the chances of you committing further offences, evidence of rehabilitation, whether there are any outstanding charges and whether any controversy or risk is caused by allowing you into Canada.

Unfortunately there is no guarantee that a TRP will be issued and generally a permit is issued for a limited period of time for you to visit Canada for a specific purpose. In some cases it is possible for us to apply for authorization to leave and re-enter with a TRP, for example in the case of a frequent business traveller convicted of a minor offence.

Whether you are criminally inadmissible or have concerns that you may face a risk of criminal inadmissibility, you should consult an immigration lawyer to understand your options and make a plan to deal with the issue proactively. A lawyer can assist you in assessing your situation and preparing necessary applications for rehabilitation or TRP. And make sure to plan ahead – these types of applications can take over a year to process and you want to ensure that you have the necessary permission to enter Canada before embarking on your travels.

 

We would like to hear from your feedback. Please send any immigration or citizenship questions that you would like addressed in future articles to zeynab@ziaielaw.com.
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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court.

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