Admissibility Hearings / Inadmissibility Issues
Under the Immigration and Refugee Protection Act (IRPA), individuals may face inadmissibility to Canada based on various factors.
- organized criminality;
- human or international rights violations;
- financial reasons;
- inadmissible family members.
Criminality and organized criminality
It is important to note that there are different rules for the taking of an enforcement action against a permanent resident versus a temporary resident. For example, evidence of serious criminality is required before a permanent resident may be subject to possible removal from Canada, whereas foreign nationals are subject to enforcement action for lesser criminality. There are three groups of criminality: convictions in Canada, convictions outside Canada, and “Committing an act”. With respect to organized criminality, a person is inadmissible for being 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; and
- as part of this pattern, the organization must be acting to help commit an indictable offence in Canada, or an “act” or “omission” outside Canada that would constitute an offence if committed in Canada that may be punishable under an Act or Parliament by way of indictment. Examples may include transnational crime activities, such as people smuggling, trafficking in persons or money laundering.
Paragraphs A34(1)(a), (b), (c), (d), (e), and (f) of the IRPA describe people who may not be admitted to Canada for reasons of national security; this includes espionage, subversion, terrorism or violence.
Human or international rights violations
Section A35(1) of the Act describes what actions and/or circumstances might make a permanent resident or a foreign national inadmissible on grounds of violating human or international rights, and includes:
- persons who have committed outside Canada an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
- persons who were prescribed senior officials in the service of a government that engages or has engaged in terrorism, systematic or gross human rights violations, genocide, war crimes or crimes against humanity;
- persons who, other than permanent residents, are nationals or representatives of a government or country against which Canada has imposed, or has agreed to impose, sanctions in concert with an international organization of states or association of states of which Canada is a member.
Section A38(1) of the IRPA bars entry into Canada to persons with three types of medical conditions:
- people with a health condition that is likely to be a danger to public health [A38(1)(a)];
- people with a health condition that is likely to be a danger to public safety [A38(1)(b)];
- people with a health condition that might reasonably be expected to cause excessive demand on health or social services [A38(1)(c)].
Section A39 describes people who are or will be unable or unwilling to support themselves or any person who is dependent on them for care and support. If there are no adequate arrangements for care and support (not involving social assistance), then these persons may fall within this inadmissibility provision.
The definition of misrepresentation includes misstating facts withholding information, i.e. persons can misrepresent themselves by being silent just as easily as persons who tell a lie. Under section A40(2), a permanent resident or a foreign national determined to be inadmissible for reasons of misrepresentation continues to be inadmissible for a two-year period following:
- in the case of a determination made outside Canada, the date the officer renders a final decision, i.e., the date of the refusal letter; and
- in the case of a determination made in Canada, the date the removal order is enforced.
Under the provisions of A41, a person is inadmissible for failing to comply with the Immigration Act and the Regulations. Generally, inadmissibility for non-compliance will end as soon as the person is no longer in a state of non-compliance or leaves Canada. However, an officer may write an A44(1) report covering a person who:
- is still or otherwise remains in Canada; and
- during the period of that person’s current authorized stay or presence in Canada, violates (or violated) a condition or requirement of the Act.
For example, in the case of a person who performed an unauthorized work activity but who now claims to no longer be in a state of non-compliance because the work activity has ceased, these persons will be reportable for non-compliance for the duration of their current stay in Canada because, during the period of their current stay in Canada, they violated a condition or other requirement of the Act; namely, they were not in possession of a work permit nor were they authorized to work.
Permanent residents will be determined to be inadmissible under the provisions of A41 only if:
- they fail to comply with the residency obligation pursuant to section A28; or
- they fail to comply with any conditions imposed under the Regulations.
Foreign nationals will be determined to be inadmissible under the provisions of A41 :
- through an “act” or “omission” that contravenes, directly or indirectly, a provision of the Act.
Inadmissible family members
Under section A42 a foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or (b) they are an accompanying family member of an inadmissible person. This section does not apply to permanent residents, nor does it apply to persons considered to be protected persons within the meaning of A95(2).
It important to note that there are provisions in the IRPA that may, in certain circumstances, help inadmissible persons resolve their inadmissibility issues.