Edelmann & Co.

Admissibility Matters

The term “inadmissibility” is used to identify people who are not legally permitted in Canada –  inadmissibility provisions can be used to keep a person out of Canada or to initiate a person’s removal from Canada.. The grounds for inadmissibility are nuanced and complex, and they apply to foreign nationals and permanent residents in different ways. 

We can provide advice and assistance to anyone facing inadmissibility allegations.

Inadmissibility under Canadian immigration law can have very serious consequences for non-citizens, including the refusal of immigration and visa applications, denial of entry to Canada, loss of status and removal from Canada.

The first step to determining inadmissibility is determining a person’s immigration status. There are  three basic levels of immigration status in Canada: citizen, permanent resident and foreign national.

  • citizen is the most secure in their status, and has a constitutional right to enter, remain in and leave Canada under the Charter of Rights and Freedoms. Canadian citizens are not subject to inadmissibility unless their citizenship is revoked or they have renounced their status.
  • permanent resident is a person who has acquired permanent resident status and has not subsequently lost that status. The status will not automatically expire, but a permanent resident may face loss of their status if they do not comply with residency obligations or other conditions on their permanent residence. Permanent residents are also subject to some of the more serious forms of inadmissibility which are set out below. In many cases, a permanent resident will have a right to appeal a finding of inadmissibility to the Immigration Appeal Division of the Immigration and Refugee Board.
  • foreign national is “a person who is not a Canadian citizen or a permanent resident”, and has the most precarious immigration status. Foreign nationals require authorization to enter Canada and to engage in certain activities, such as working or studying. A foreign national has no independent right to enter or remain in Canada, and there is a wide range of circumstances that could render a foreign national inadmissible to Canada.

Permanent residents can be found inadmissible if they have not complied with certain conditions of their permanent residency, such as the residency obligation or other conditions that are placed on particular categories of permanent residents.

Both permanent residents and foreign nationals can be found inadmissible under some of the more serious provisions including:

  • Serious criminality
  • National Security
  • Organized Criminality
  • Misrepresentation

Foreign nationals can be found inadmissible under a much broader set of circumstances, including any failure to comply with the requirements of Canada’s immigration laws such as staying beyond the validity of a permit, working without authorization or studying without authorization. There are also more technical grounds of inadmissibility which may affect foreign nationals including medical inadmissibility or having an inadmissible family member.

Certain forms of inadmissibility may not apply to foreign nationals in specific circumstances, such as if the person is a refugee claimant or a sponsored spouse. It is prudent to get competent legal advice about possible inadmissibilities prior to making an immigration application or coming to Canada.

Persons who are in Canada have a right to a fair process before they are removed from Canada. 

When a CBSA officer suspects that a permanent resident or foreign national is inadmissible to Canada, the officer may write a report under s. 44(1) of IRPA. This report sets out the basis for the allegation of inadmissibility and commences the process that leads to a removal order being issued against the person concerned. The Officer may have some discretion in making this decision to write or not write the report – though their discretion is limited. Where there is discretion, our office can help prepare submission packages to ask Officer not to go forwards with the inadmissibility process.

In less complex or serious cases, a Minister’s Delegate with CBSA can issue a removal order after the s. 44 report is written. In more complex or serious cases, the CBSA must refer the report for a hearing before the Immigration Division. The Immigration Division is an independent tribunal that is tasked with reviewing the inadmissibility allegations, and if the ground is established by the Minister they will issue a removal order.

If a decision is unreasonably or unfairly made, leave to judicially review the decision in Federal Court can be sought. In some cases, an appeal may also be made to the Immigration Appeal Division. Our office can assist individuals who are seeking to understand and navigate this process and the various legal avenues that may be available to stay in Canada.

For further information see Removals & Deportation.

Misrepresentation can occur when the Government believes that a person has provided untruthful information or omitted to provide information. This is a very serious matter, as a finding that a person has misrepresented him or herself (under s. 40 of IRPA) can lead to refusal of an application, an exclusion order (type of removal order for persons inside Canada), and a five-year bar from re-applying to enter or remain in Canada.

Allegations of misrepresentation generally commence with a letter or email from IRCC or CBSA. In this written communication, it is expected that the Officer will explain what information was untruthful or omitted. This will sometimes include information that the Officer investigated a declared place of employment, that information was shared through an Information Sharing Agreement with another country, or even that declared information was compared to past application materials. Once the letter or email has been received, a person will be given a deadline within which to respond and address the Officer’s concerns.

We can help you understand the allegations that have been made, guide you with the collection of documentation and/or information, and provide legal submissions to respond to the Officer’s concerns.

You may have received a letter from IRCC or CBSA asking for you to provide further information or providing you an opportunity to respond to concerns. This is a crucial stage in your application or matter where you may be trying to answer concerns without knowing exactly why the information is being requested. 

We can assist you in seeking required extension requests to Immigration authorities, making inquiries to the Government to obtain information about your file, and helping you respond to the Government requests with evidence and legal submissions as required.

If you are found to be inadmissible to Canada for any reason, there may be recourse for you to overcome your inadmissibility. We can assist you to navigate your options and to make the appropriate application to overcome your inadmissibility.

  Rehabilitation application

Where an individual is inadmissible on the basis of criminality or serious criminality for an offence that occurred outside Canada, a Rehabilitation application can be made to permanently remove the inadmissibility where a specified time period has passed, (generally five years after the completion of the sentence or commission of criminal act) and where the individual can demonstrate they are sufficiently rehabilitated. In some cases, a person may be “‘deemed” to be rehabilitated after the passage of a specific period of time and so an actual application for Rehabilitation may not be required

A Rehabilitation finding acknowledges that an individual is no longer a risk to Canada or persons in Canada. An individual who is no longer inadmissible and who has been found to be ‘rehabilitated’ may then submit a permanent or temporary residence application as otherwise eligible.

  Record suspension application

A record suspension application can be made by persons to overcome criminal inadmissibilities based on a conviction in Canada. 

A record suspension allows people who were convicted of a criminal offence, who have completed their sentence and demonstrated compliance with the law over a prescribed number of years, to have their criminal record “set aside” (ie. kept separate and apart from other criminal records).

A record suspension removes a person’s criminal record from the Canadian Police Information Centre (CPIC) database. This means that a search of CPIC will not show that the individual has a criminal record or a record suspension. This helps persons access immigration, employment and educational opportunities and to reintegrate into society.

  Temporary Resident Permits (TRP)

Temporary resident permits can be issued under s. 24(1) of IRPA. Section 24 provides a relief mechanism to allow persons to come to Canada temporarily, despite being inadmissible or not meeting the requirements of IRPA 

  Humanitarian and Compassionate application

Humanitarian and Compassionate (H&C) considerations are an important element of Canada’s immigration program. H&C applications and requests can be made pursuant to s. 25 of Immigration and Refugee Protection Act. This provides a powerful mechanism for relief that can be used to overcome many problems faced by applicants who are inadmissible to Canada or who otherwise do not meet the requirements of IRPA and/or IRPR. 

Through this provision, Officers can grant an applicant permanent resident status in Canada or they can grant exemptions from applicable requirements under IRPA, if there are sufficient humanitarian and compassionate reasons to do so. This provision allows for officers to exercise flexibility and discretion when deciding applications, although there are some limits to this discretion for refugee claimants and persons inadmissible on grounds of security, organized crime, or human or international rights obligations (under ss. 34, s. 35, or s. 37 of IRPA). 

   Ministerial Relief Application

A person who is inadmissible on grounds of security, organized crime, or human or international rights obligations can submit an application for Ministerial Relief under s. 42.1 of IRPA (except those inadmissible under s. 35(1)(a) for crimes against humanity). Ministerial Relief is a legislative mechanism that allows the actual Minister of Public Safety to grant relief from this inadmissibility.

   Authorization to Return (ARCs)

A person who has been removed from Canada under a deportation order will need an Authorization to Return (ARC) before they can come back to Canada. Persons who were removed under an exclusion order will require an ARC to come back to Canada before the applicable one or five year bar against returning to Canada lapses.

An individual may be found medically inadmissible on three grounds:

  1. a danger to public health
  2. a danger to public safety, or
  3. more commonly, that the individual’s condition is reasonably expected to cause excessive demand on health or social services in Canada. As Canada has publically funded healthcare and education systems, a medical condition which is anticipated to require more public funding than the average funding expected to be provided for a Canadian citizen or permanent resident (over a five year period), can result in an allegation or finding of being medically inadmissible to Canada.

A medically inadmissible family member will render all dependent family members inadmissible. For example, if an application for permanent residence includes two parents and two children and one of the children has moderate developmental disabilities, then the entire family may be medically inadmissible to Canada. In this scenario, before Immigration, Refugees and Citizenship Canada (IRCC) can refuse an application the Immigration Officer must provide a ‘procedural fairness’ letter so that the family has the opportunity to provide evidence that they will not cause ‘excessive demand’ on health or social services. If the application for permanent residence is still refused, this decision can be challenged at the Federal Court of Canada on judicial review.

If the application that is refused for medical admissibility is a sponsorship application – either the sponsorship of parents, grandparents, a spouse, or children – other factors must be considered.

For parents and grandparents, there is a similar procedure: if during the processing of the permanent residence application a parent or grandparent is thought to be medically inadmissible, a ‘procedural fairness’ letter will be provided and submissions requested from the family. If the permanent residence application is refused, the decision may be appealed to the Immigration Appeal Division.

Spouses and children cannot be found to be medically inadmissible for causing excessive demand to health or social services.

A permanent resident must comply with residency obligations to maintain their status in Canada.

A person who has been a permanent resident for five years or more complies with residency obligations if they can demonstrate to immigration authorities that they have been physically present in Canada for a minimum of 730 days within the past five years.

A person who has been a permanent resident for less than five years complies with residency obligations if they can demonstrate they will be able to meet the minimum of 730 days physical presence in Canada at the five-year mark.

In some limited circumstances, it is possible to count the days that a permanent resident is physically outside of Canada towards the 730 day residency requirement:

  1. If the permanent resident is accompanying a Canadian citizen spouse, common-law partner or parent (if the permanent resident is less than 19 years of age).
  2. If the permanent resident is accompanying a Canadian permanent resident spouse, common-law partner or parent (if the permanent resident is less than 19 years of age). During this period, the permanent resident relative must be employed on a full-time basis by a Canadian business or in a federal or provincial public service.
  3. If the permanent resident is an employee of, or under contract to, a Canadian business or is a member of the federal or provincial public service and is assigned on a full-time basis to a position outside Canada.

Importantly, there are additional requirements for each of these exceptions detailed in the regulations. It is highly advisable to seek legal counsel beforerelying on them to reside outside Canada.

In certain circumstances, immigration officials will consider any compelling humanitarian and compassionate factors if a permanent resident is unable to meet the residency requirements.

Residency obligations to maintain permanent residence should not be confused with the separate matter of residency for the purposes of citizenship. The residency requirements for citizenship are now physical presence for 4 out of 6 years and unrelated to the requirements for maintaining permanent residency.

Residency compliance checks

Residency examinations occur most frequently by border officials upon entry into Canada. They also occur when new or updated travel documents are requested from within Canada. If the immigration officer engages in a thorough examination and is not satisfied the residency obligations have been met, it is within their discretion to issue a removal order, resulting in loss of permanent residency status. This can be appealed to the Immigration Appeal Division (see below).

Residency compliance examinations also occur when applying for a travel document from abroad in order to re-enter Canada. If a determination is made that residency obligations have likely not been met, a temporary travel document may still be issued for the purposes of attending an immigration appeal hearing. The travel document will be issued as long as the permanent resident has been present in Canada for at least one day out of the 365 days prior to applying for a travel document.

Residency obligation appeal

If an officer determines residency obligations have not been met, a permanent resident may apply to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) for an appeal of the decision.

If a permanent resident receives a removal order within Canada at an admissibility hearing or after an examination, they must provide a Notice of Appeal along with a copy of the removal order to the IAD no later than 30 days after receiving the removal order.

If a permanent resident wants to appeal a negative residency obligation decision made outside Canada, they must provide a Notice of Appeal and written decision to the IAD registry office for the region in Canada where they last resided no later than 60 days after receiving the written decision.

An Appeal Record is then created by the Minister which is then sent to the Appellant.

A hearing date is scheduled by the IAD, when the Appellant/counsel will appear before a Member of the IAD to argue their case. Twenty days before the hearing, the parties must submit all relevant documents that they wish to rely on and a list of witnesses. The parties then have 10 days to submit any documents in response to the documents submitted by the other party.

At the hearing, an IAD Member will first decide whether or not the 730 day residency obligation has been met. If the Appellant is found not to have met residency obligations, the Member will then decide whether there are sufficient humanitarian and compassionate considerations to justify the retention of permanent resident status and overcome the breach of the residency obligation. The IAD Member will consider factors such as the following:

  •  the extent of the non-compliance with the residency obligation;
  • the reasons for the departure and stay abroad;
  • the degree of establishment in Canada, initially and at the time of hearing;
  • family ties to Canada;
  • whether attempts to return to Canada were made at the first opportunity;
  • hardship and dislocation to family members in Canada if the Appellant is removed from or is refused admission to Canada;
  • hardship to the Appellant if removed from or refused admission to Canada; and
  • whether there are other unique or special circumstances that merit special relief.

A negative determination at an IAD hearing results in loss of permanent resident status. This decision is final unless an application for leave and judicial review at the Federal Court is successful.

Permanent residents and foreign nationals can be found inadmissible to Canada on “security” grounds pursuant to s. 34 of the Immigration and Refugee Protection Act, even where they have never been convicted of any crime, where there are reasonable grounds to believe they have ever done any of the following:

(a) engage in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b) engage in or instigating the subversion by force of any government;

(b.1) engage in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(c) engage in terrorism;

(d) be a danger to the security of Canada;

(e) engage in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) be a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to above.

Section 34 is among the most severe inadmissibility provisions in IRPA. The reasonable grounds to believe standard requires proof based on credible and trustworthy evidence, but is lower than the “balance of probabilities” standard that applies in civil proceedings. 

This inadmissibility ground can render long-time permanent residents, protected persons and foreign nationals inadmissible with no right of appeal to the Immigration Appeal Division. This inadmissibility makes an individual ineligible to make a refugee claim and bars a person from obtaining protected status – they can only obtain a stay of removal through a pre-removal risk assessment, which can be reassessed and cancelled at any time. 

Forms of relief from s. 34 inadmissibility are very restricted – relief lies only in the hands of the Minister of Public Safety himself under s. 42.1 of IPRA. Individuals in Canada are afforded a hearing before the Immigration Division, which is tasked with making this determination. Individuals overseas will receive a fairness letter and are afforded an opportunity to respond to the allegation before a finding is made. If a finding is made, an individual can apply for leave to have the decision judicially reviewed in Federal Court.

Our office has extensive experience in assisting individuals to respond to “security” allegations, and in navigating the limited processes that are available if this finding is made.

Permanent residents and foreign nationals can be found inadmissible to Canada on grounds of “organized criminality” pursuant to s. 37 of the Immigration and Refugee Protection Act, where there are reasonable grounds to believe they have ever done any of the following:

(a) be a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an indictable offence, or engage in activity that is part of such a pattern; or

(b) engage, in the context of transnational crime, in activities such as:

  • people smuggling,
  • trafficking in persons or 
  • laundering of money or other proceeds of crime.

This provision operates in the same harsh and broad manner as the “security” provision, discussed in more detail above. Our office similarly has extensive experience in assisting individuals to respond to “organized criminality” allegations, and in navigating the processes that are available if this finding is made.

Permanent residents and foreign nationals can be found inadmissible to Canada for “Human or international rights violations” pursuant to s. 35 of the Immigration and Refugee Protection Act, where there are reasonable grounds to believe they have ever done any of the following:

(a) commit an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;

(b) be a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;

Foreign nationals alone can also be found inadmissible to Canada for “Human or international rights violations” pursuant to s. 35 of IRPA where there are reasonable grounds to believe any of the following:

(c) their entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association;

(d) is currently the subject of an order or regulation made under section 4 of the Special Economic Measures Act on the grounds that any of the circumstances described in paragraph 4(1.1)(c) or (d) of that Act has occurred; or

(e) is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).

This provision operates in the same harsh and broad manner as the “security” provision, discussed in more detail above. Our office similarly has extensive experience in assisting individuals to respond to “Human or international rights violations” allegations, and in navigating the processes that are available if this finding is made.