What does the phrase “inadmissible” mean in Canadian immigration law?
The term “inadmissible” means that you are not allowed to be in Canada. Inadmissibility can be determined before you enter Canada (at a port of entry or while applying for a visa to enter Canada) or while you are already in Canada. If a Canada Border Services Agency (CBSA) officer suspects that you are inadmissible, in most circumstances, you will have an admissibility hearing with the Immigration and Refugee board (IRB). During the inadmissibility hearing, a member of the IRB would hear both your and the CBSA’s views, and determine if you are inadmissible. If the IRB member determines that you are inadmissible, then he or she will make a removal order against you. A removal order can include a departure order (where you are told to leave Canada within 30 days), an exclusion order (which bars you from entering Canada for a certain period of time), or a deportation order (which is a permanent bar on entering Canada).
What are the degrees of criminality in Canadian immigration law?
In Canadian immigration law, as defined in the Immigration and Refugee Protection Act (IRPA), there are three categories of criminality which can lead to you being inadmissible:
- Criminality (section 36(2))
- You are inadmissible if you have been convicted of a crime
- that could be prosecuted by indictment, or
- any two crimes on separate occasions.
- You are inadmissible if you have been convicted of a crime
- Serious criminality (section 36(1))
- Being inadmissible for serious criminality means that you’ve been convicted of
- any crime which carries a maximum sentence of at least 10 years, or
- have been sentenced for at least 6 months imprisonment for any crime.
- Being inadmissible for serious criminality means that you’ve been convicted of
- Organized criminality (section 37(1))
- Being inadmissible on organized criminality means that you are
- a member of a gang, mob, or other organized criminal group that regularly commits crimes in Canada or abroad.
- Being inadmissible on organized criminality means that you are
Does a criminal conviction result in my automatic deportation from Canada?
No. Not all criminal convictions lead to inadmissibility. For example, if you were only ever convicted of disturbing the peace (which is only prosecuted summarily) and sentenced to less than six months imprisonment, then you would not be deemed inadmissible. Even for more serious convictions, the next step after a CBSA officer suspects your inadmissibility is the IRB admissibility hearing.
What strategies can I use to minimize the immigration consequences of being convicted of a crime?
The best strategy to minimize the immigration consequences of being convicted with a crime is to not get convicted in the first place. Defending your charges and maintaining your innocence in court or resolving the charges without a conviction beforehand ensures that you do not trigger inadmissibility on criminality or serious criminality grounds.
However, if you are found guilty of a crime, the next step is for you to inform your lawyer of the potential immigration consequences you face as a result of being sentenced. This is crucial as judges are required to factor immigration consequences when determining an appropriate sentence. Lastly, should you be determined inadmissible, it is possible to appeal your removal order on a number of grounds such as:
- showing that your Charter right to life, liberty, and security of the person are harmed by your removal, or
- appealing to humanitarian and compassionate grounds.
Does being charged with a crime in Canada affect my immigration status?
Not necessarily. For inadmissibility on the criminality or serious criminality grounds, you must be first convicted of a crime before inadmissibility is triggered. However, under the organized criminality ground for inadmissibility, you may be deemed inadmissible for being reasonably suspected of being a member of a criminal organization. For example, in this case, the applicant was determined to be inadmissible from Canada on the belief that he was a member of an Italian mafia, despite never having been convicted of an offence in Canada.
How can our firm help?
Lakin Afolabi Law is an immigrant-founded law firm which practices both criminal and immigration law. We’re multilingual, empathetic, and have over a decade of experience defending criminal charges. We also have a growing breadth of knowledge in complex immigration matters. If you have outstanding criminal charges and are worried about them affecting your immigration status, contact us today.