Can a criminal record affect your permanent residency status in Canada?

Can a criminal record affect your permanent residency status in Canada?

Yes, a criminal record can affect your permanent residency status in Canada, but the extent of the impact depends on various factors. Canadian permanent residents enjoy certain privileges, accompanied by responsibilities, and one crucial aspect is the potential repercussions of criminal convictions on their status. That’s why it is important to understand the complexities of criminal inadmissibility to avoid serious consequences. 

Through this blog, we will discuss the appeal process and shed light on the humanitarian and compassionate factors that the Immigration Appeal Division (IAD) considers when evaluating grounds for humanitarian and compassionate relief – factors that can be instrumental in supporting individuals facing such challenges.

What is “serious criminality” and its consequences?

Serious criminality holds immense implications for Canadian permanent residents. It refers to convictions for crimes carrying a possible sentence of 10 years or more, or resulting in a sentence exceeding 6 months. Such convictions can result in the loss of permanent residence status and deportation, even for refugees. 

A common question asked by clients is what happens if the Crown proceeds on a “summary” basis when they are able to pick between proceeding summarily or through indictment? The short answer: when dealing with “hybrid offences” it does not matter which way the Crown elects. For all intensive purposes, if you are convicted of that crime and it fits the definition outlined above, as a PR, you may be in trouble. 

Can I appeal a deportation order as a permanent resident?

Yes, permanent residents have the right to appeal decisions affecting their status. This right is provided under section 63(3) of the Immigration and Refugee Protection Act. However, for those inadmissible on grounds of serious criminality, this right is limited. No appeal is available if the individual has been sentenced to 6 months or more in prison in Canada or if the crime occurred outside of Canada. The appeal process is a crucial opportunity for individuals to present humanitarian factors that could mitigate their deportation, such as having lived most of their life in Canada or facing significant personal challenges.

What is a procedural fairness letter? 

When challenges arise in your immigration application, Immigration, Refugees, and Citizenship Canada (IRCC) may send you a Procedural Fairness Letter (PFL). This letter is a chance for you, as the principal applicant, to respond to specific concerns in your application. PFLs serve various purposes, such as seeking additional information about the authenticity of your marriage, addressing admissibility issues linked to criminality, handling significant medical inadmissibility concerns, or responding to allegations of misrepresentation on your application. It’s crucial to respond promptly and thoroughly to ensure a fair assessment of your case. 

What happens when the CBSA issues a Fairness Letter?

The legal process for criminal inadmissibility is set in motion when the Canada Border Services Agency (CBSA) issues a “procedural fairness letter” to an individual, asserting that they meet the definition of serious criminality. Often times, if one is incarcerated, this letter comes to them in jail. Other times, when the person is not in jail, it can come via mail or through a “call-in notice” whereby the CBSA will call you in for an interview and issue the letter at that moment. 

Subsequently, the person is granted the opportunity to submit arguments, including humanitarian and compassionate reasons, urging the CBSA not to proceed. Following this stage, the CBSA officer has two potential courses of action: 

  • Either they decide not to proceed based on the submitted arguments, or 
  • They initiate the inadmissibility process by compiling a Section 44 report.

The Immigration Division of the Immigration and Refugee Board is set to conduct a hearing to ascertain whether an individual meets the criteria for serious criminality. It is essential to emphasize that humanitarian factors are not to be considered at this stage. The possible outcomes include:

  • A ruling by the Immigration Division that the person is not inadmissible, potentially triggering an appeal by the Minister. As per section 63(5) of the Immigration and Refugee Protection Act, the Minister has the right to appeal to the Immigration Appeal Division if they disagree with a decision made by the Immigration Division in an admissibility hearing.
  • Alternatively, a finding of inadmissibility may result in the issuance of a removal order.

If the process enters the appeal stage, the Immigration Appeal Division of the Immigration and Refugee Board, holds a hearing. This unique stage allows for the consideration of humanitarian factors, providing an avenue for the individual to present compelling reasons against deportation. The Immigration Appeal Division may decide the following:

  • Set aside the removal order, confirming the individual’s right to remain in Canada.
  • Impose a stay of removal for a defined period, subject to conditions such as refraining from re-offending or undergoing treatment for addictions.
  • In cases where the removal order is confirmed, the individual is faced with the prospect of leaving Canada.

Can I appeal on grounds of humanitarian and compassionate reasons?

To demonstrate humanitarian and compassionate reasons for an appeal, individuals may present compelling factors to the Immigration Appeal Division (IAD) that can potentially sway the decision in their favour or, at the very least, lead to the issuance of a stay on their removal order. Despite having committed a serious crime, these considerations take into account the individual’s current circumstances, rehabilitation potential, and the broader impact of their removal. Here are key factors the IAD may consider when assessing the humanitarian and compassionate grounds:

  • Demonstrate a commitment to rehabilitation by participating in counselling or treatment programs and outline future steps for a law-abiding life.
  • Express genuine remorse for the criminal actions and provide details about efforts made towards personal growth and positive change.
  • Highlight the duration of residence in Canada, emphasizing community involvement, employment history, and contributions.
  • Illustrate potential hardships faced upon removal, addressing any special needs or risks associated with returning to the home country.
  • Reviewing how deportation may impact the best interests of any children involved in the file. 

By addressing these considerations in a comprehensive and sincere manner, individuals can build a compelling case for the IAD to recognize the existence of humanitarian and compassionate reasons. This approach increases the likelihood of a favourable decision, whether in the form of a stay on the removal order or the outright allowance of the appeal. The key is to present a well-documented and genuine portrayal of the individual’s circumstances, emphasizing their commitment to positive change and the overall welfare of themselves and those connected to them.

Can I appeal to the Federal Court for immigration?

If you disagree with the decision made by the Immigration Appeal Division (IAD), you have the option to seek a review through the Federal Court, a process known as a judicial review. Both individuals and the Minister’s counsel have the authority to request this review of the IAD’s decision. The Federal Court will either dismiss the request to review the IAD’s decision or remand the case back to the IAD for a reevaluation.

If you or someone you know is confronting the possibility of deportation on grounds of criminal inadmissibility, our immigration and criminal lawyers at Shory Law LLP are here to stand by your side. Your situation is our priority, and we’ll work tirelessly to build a strong defence against criminal inadmissibility. Contact Shory Law LLP today at 403-216-1199 to ensure your rights are protected and to take the first step toward a secure and stable future in Canada. 

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