Spouses with Criminal Records or Offences
If you are a Canadian citizen or permanent resident looking to sponsor your spouse for PR in Canada, special measures must be taken if they have been charged or convicted of a criminal offence in the past. The main reason is that IRCC needs to perform a complete background check, and review all necessary documents and facts to be convinced a foreign national is not inadmissible to Canada. Even if a spouse is inadmissible, there are ways to overcome the inadmissibility. The method that is utilized to overcome an inadmissibility depends on the nature of the offence, the time that has passed, and the number of offences.
Only charged with an offense, but never convicted
Despite all charges being dropped and not receiving a conviction, the charges still must be disclosed, with all facts presented, including the relevant court documents. Failure to present these documents upfront in the application upon submission can delay the application by 6 months. IRCC must receive all relevant information in order to perform a proper assessment. The fact that a charge is not appearing on a police background check does not absolve an individual from providing all the necessary information. All charges must be disclosed (even the dropped charges), otherwise there is risk of the application being refused for Misrepresentation, even if an individual is found to be not Criminally Inadmissible. Our firm knows this first-hand as individuals in this specific situation have retained our firm to help overcome the Misrepresentation ban of 5 years that was issued to individuals.
Only one offence that is non-serious criminality and 10 years have passed since the latter of: the offence, end of sentence, parole, community service, fine being paid.
A spousal sponsorship application can be submitted, along with written arguments and evidence requesting Deemed Rehabilitation to overcome the Criminality.
One or more offences, including serious criminality, and 5 years have passed since the latter of: the offence, end of sentence, parole, community service, fine being paid.
A spousal sponsorship application can be submitted, along with a Criminal Rehabilitation application and the corresponding fee ($200 or $1,000), with written arguments and evidence requesting Criminal Rehabilitation to overcome the Criminality.
If less than 5 years have passed or the offence occurred in Canada, and your spouse is not eligible for Deemed Rehabilitation or Criminal Rehabilitation
Many immigration practitioners offer the wrong advice in this situation. The main reason being is that the majority of practitioners are hesitant to take on complex cases as they do not have the experience representing clients in this situation. Most will advise individuals they must wait until the 5 year waiting period has passed to be eligible to apply for Criminal Rehabilitation or to apply for a formal pardon. This is incorrect; a foreign pardon will not automatically clear an individual’s inadmissibility and criminal rehabilitation is still required. Moreover, most couples do not want to be apart from each other for up to 5 years, waiting to become eligible to apply for rehabilitation. With respect to Canadian pardons to clear offences committed in Canada, these too may take years to obtain.
A better strategy to overcome inadmissibility of all types is to use section 25(1) of IRPA, the Humanitarian and Compassionate (H&C) section of the law. Our firm uses this section of the law often to overcome inadmissibility for both foreign offences and Canadian offences.
In any Permanent Resident (PR) application, relief can be requested to overcome either an ineligibility or inadmissibility. It is extremely important to retain a Law Firm (not an immigration consultant) that has extensive experience using this section of the law to overcome inadmissibility. This cannot be stressed enough. Well-drafted arguments and sufficient evidence must be provided to be successful using H&C law. This is the required work of a skilled and experienced lawyer.
Given that our firm predominantly handles more complex cases, we are a witness to many refused applications, with approximately 30% of our clients retaining our firm after using another immigration lawyer or law firm. One common mistake is that other firms submit a separate Criminal Rehabilitation application and request H&C inside this application to overcome the ineligibility. This is not permitted and the application will be refused, often with the separate spousal sponsorship application refused shortly thereafter.
Read more about the complex spousal sponsorship cases our firm handles.
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.
*Section 34, 35 and 37 are offences related to terrorism, organized crime and human rights violations. Individuals who have these type of offences cannot use H&C to overcome inadmissibility. But for all other offences, the H&C section of the law can be used.
Contact us for assistance in overcoming inadmissibility and sponsoring your spouse for PR in Canada.