Criminal Inadmissibility

Criminal Inadmissibility

If you have a criminal record, it could prohibit you from obtaining a Canadian visa. This is called criminal inadmissibility.

Whether you are criminally inadmissible depends on several factors:

  • What crime you committed,
  • When you were convicted,
  • How you have behaved in the time since.

If you have a conviction on your record, determining whether you might be criminally inadmissible should be your first priority.

Rehabilitation as Canadian Policy

Canada has long maintained a criminal code that provides offenders with opportunities for rehabilitation, and supports their efforts to re-enter society. A similar approach is applied to foreign nationals seeking Canadian visas, whether their offences were perpetrated in Canada or abroad.

This does not mean Canada ignores foreign convictions – far from it -- but it does mean that immigration officers apply a set of rules to help them distinguish those who have made mistakes, from those who might constitute a potential or ongoing danger to Canada’s citizens.

Youthful indiscretion

So, for example, Canada allows a margin for youthful indiscretion. A conviction for common assault for, say, brawling outside the local pub, which dates from before your 18th birthday, is unlikely to cause a problem. You will need to make a full account of the circumstances, but by itself it would be unlikely put a visa application in jeopardy.

Serious crime

By contrast, if the pub brawl resulted in a conviction for Grievous Bodily Harm (GBH), the serious nature of the crime is far more likely to result in the applicant being criminally inadmissible.

As a rule of thumb, serious crimes are any which, if perpetrated in Canada, would carry a potential sentence of 10 years or more. Even if an applicant’s sentence for the crime was less than 10 years, the potential sentence is about the gravity of the crime, not any particular sentence.

For example, GBH can result in a sentence of more than 10 years, whereas even with aggravating factors the maximum tariff for assault with bodily harm (in the UK, Actual Bodily Harm or ABH) is no more than 10 years. As a result, a GBH conviction with a minimum sentence could result in a ban, whereas ABH with the maximum 10 year sentence might not. Bear in mind, this merely illustrates how the rule could work: clients with these issues must be assessed on a case-by-case basis.

Absolute bans

Some crimes result in absolute, no-questions bans from entering Canada:

  • War crimes and human or international rights violations,
  • Ties to organised crime,
  • Crimes that demonstrate you are a security risk.

From our experience, we add drug trafficking and crimes involving children to that list.

If there is a risk that any of these categories would be mis-applied to your case, you are likely to require professional assistance to argue how these categories do not apply to your application.

Criminal Inadmissibility Immigration Procedure

If you have a criminal record of any sort, you will need to be forthright about your history, and make a full declaration regarding the facts. If you are invited to apply for a visa, you will need to provide a police records check for every country you have been a resident, so there is no sense trying to evade this requirement.

Immigration officers have wide discretion in the issuance of visas generally, and in how they deal with criminal inadmissibility in particular. For many applicants, avoiding criminal inadmissibility will be down to the effectiveness of the argument that you meet the legal terms to be deemed rehabilitated.

For other applicants, whether due to the serious nature of the crime or other factors, rehabilitation will only be offered on the basis of a specific application.

Application for Rehabilitation

Even if you have a serious criminal conviction, it is possible to claim rehabilitation, which removes the grounds of criminal inadmissibility for visa purposes. Rehabilitation means that you have satisfied the legal criteria to show you lead a stable lifestyle and are unlikely to be involved in any further criminal activity.

10 years or less: For crimes where the maximum sentence is 10 years or less, you are automatically deemed rehabilitated if it has been at least 10 years since the completion of the sentence imposed (including any probationary period). However, you are eligible to apply for rehabilitation just 5 years after completion of your sentence, whether that is the end of your imprisonment, or the end of your probation.

10 years or more: By contrast, for crimes where the maximum sentence is 10 years or more, there is no automatic rehabilitation after 10 years. However, you are still eligible to apply for rehabilitation after 5 years have elapsed from either the completion of your sentence, or the commission of the offence.

Importantly, rehabilitation is only available on the basis there have not been any more recent convictions. Put another way, your 5 or 10 year wait to be eligible for rehabilitation starts with your most recent conviction. Also bear in mind that all convictions will be taken into account: it should go without saying that career criminals are rather severely frowned upon.

If you have questions about your record, and whether you would be considered criminally inadmissible, sorting this out should be your top priority. Submit our quick Free Consultation form to have our emigration experts review your case today.

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