Understanding criminal inadmissibility - Immigration Lawyer Vancouver, Canada | Sas & Ing Immigration Law Centre

BlogUnderstanding criminal inadmissibility

26 March 2019

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One of the most important aspects of my work as a Vancouver immigration lawyer is to help clients plan an efficient pathway to achieve their immigration goals. While most of my Canadian immigration clients have a good understanding of which immigration programs they might be eligible to apply under, many clients do not have a good understanding of how their past criminal history can affect their eligibility to immigrate to Canada. Unfortunately, due to common misconceptions, clients often do not disclose enough information about their past criminal history and this can cause unnecessary delays or even unexpected refusals in their cases.

Having a past criminal history can be problematic for a client who wants to immigrate to or visit Canada as a tourist. Immigration applicants, whether from countries requiring a visa or even visa-exempt countries like Australia and the United Kingdom, are required to answer the following broadly worded question when applying for an immigrant visa or just to visit when applying for an electronic travel authorization (eTA):

Have you ever committed, been arrested for or been charged with or convicted of any criminal offence in any country or territory?

As straightforward as the question may appear there are some very common reasons that lead clients to believe that it is not important to disclose a prior arrest, criminal charge or criminal conviction, including:

“I have a criminal conviction but it occurred many years ago.”
“I was charged with a crime but those charges were withdrawn.”
“I was charged with a crime but was not convicted.”
“I was convicted of a crime but it has been expunged from my criminal record.”

In each of these cases, a client is still required to answer “yes” and disclose their criminal history and the outcome. Notably, it is a common misconception that criminal matters are not important if a conviction is never registered. This is incorrect – a client may be found criminally inadmissible to Canada if they have committed a crime outside Canada that is also a crime in Canada, regardless of whether charges were laid and later withdrawn or even if a conviction was never registered.

Importantly, disclosing a criminal past does not necessarily mean that a client will be found inadmissible to Canada, but answering “no” puts him or her at significant risk of refusal because it is always a requirement to be truthful in immigration applications.

Moreover, if an immigration officer finds that the client has lied or withheld relevant information about his or her criminality, then a misrepresentation finding could be made, which would bar the client from applying again to enter Canada for five years.

Given the serious potential consequences for non-disclosure, it is best to disclose any prior criminal history and to provide the supporting documentation relating to it such as court records and police reports.
Although you may be reluctant to disclose a prior criminal history, you should be aware that there are many reasons why you may still be found admissible to Canada, including:

  • You may have been charged with or convicted of a crime that is not a crime in Canada.
  • You may have been convicted but because you completed your sentence at least five years ago you can apply for criminal rehabilitation to permanently overcome the conviction or be considered deemed rehabilitated if you completed your sentence at least 10 years ago.
  • You may have had your criminal conviction expunged or pardoned and Canada will recognize the expungement or pardon and not hold the conviction against you.
  • You may have been charged with a crime, but the available evidence is not sufficient to find that a crime was committed in the foreign country or in Canada.

In summary, when it comes to a prior criminal history, it is preferable to disclose more information rather than less. If you find yourself answering “yes” to the question of whether you have committed, been arrested for or have been charged or convicted with a criminal offence, then you may benefit from obtaining advice on whether your past criminal record will negatively affect your ability to come to Canada to visit, study or work, or obtain permanent residence.

As stated above, there are many reasons a person can be found admissible to Canada despite a prior criminal history, but determining your admissibility will require a detailed review of the relevant criminal offence(s) and an assessment of how it will likely be treated by Canadian immigration authorities.

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