Each year, Canada welcomes millions of visitors and immigrants into Canada. However, not all foreign nationals are admissible to enter Canada. Even if someone tries to enter Canada with a visa, or is a citizen of a country that allows for visa free travel to Canada, they may not be admissible to enter Canada. An individual may be inadmissible for various reasons, so it is important to familiarise yourself with the laws that govern admissibility to determine whether they may apply to you.

The Federal Court recently heard a matter regarding an individual’s inadmissibility and the decision will have implications for individuals in similar circumstances.

Applicant convicted of using forged documents to enter United Kingdom

The Federal Court of Canada recently made a ruling in Bello v. Canada (Citizenship and Immigration), 2023 FC 1094, (hereinafter referred to as “Bello”) that has changed part of the law on inadmissibility. The Applicant, Olajuwon Fatimot Bello, (the “applicant”) went to England in May 2005 with her husband. In order to enter England, she used a falsified passport. Approximately five years later in February 2010, the applicant was arrested, charged, and convicted in the United Kingdom for the usage of forged documents. The applicant pleaded guilty to the charges.

In November 2017, the applicant came to Canada and made a claim for refugee protection along with her two children. In 2019, a report was written in accordance with section 44(1) of the Immigration and Refugee Protection Act outlining the applicant’s inadmissibility because of serious criminality.

Applicant makes claim for permanent residence in Canada under Pathway Program

In August 2021, while the Applicant’s refugee claim was pending, she made an application for permanent residence under the Pathway Program. In her application, she acknowledged that she was inadmissible, but was seeking an exemption by applying for permanent residency under humanitarian and compassionate grounds. Humanitarian and compassionate grounds applications can be made by foreign nationals within Canada in order to apply for permanent residence, with certain restrictions on who can apply.

The applicant’s application was refused, as the reviewing visa officer determined that she was not eligible due to serious criminality after being convicted of an offence that would be punishable in Canada for a term of at least ten years.

Applicant appeals visa officer’s decision to refuse application

The applicant appealed this decision, arguing that the visa officer erred in their determination because they failed to determine whether she was deemed rehabilitated. Despite her argument, the Federal Court ruled against the applicant.

The Federal Court found that the visa officer did not err in failing to consider whether the applicant was deemed rehabilitated, as that argument was not before the officer. The applicant had conceded in her application that she was criminally inadmissible to Canada, and her humanitarian and compassionate application sought a waiver in order to find her admissible, not to deem whether she had been rehabilitated. The effect of this decision means that a visa officer cannot decide if someone has been rehabilitated for the purposes of criminal inadmissibility, unless the applicant specifically requests for a rehabilitation determination to be made.

Medical Inadmissibility

A person may be considered inadmissible to Canada for medical reasons if a Canadian immigration official determines that the person who wants to reside in Canada either temporarily or permanently meets one of the conditions of inadmissibility.

Danger to Public Health or Safety

A person coming to Canada can be denied entry if it is found that they pose a danger to public health or safety. The danger to public health or safety is determined partly based on the results of the applicant’s immigration medical exam.

When it comes to public health, the Canadian Government will consider whether the applicant in question may have certain infectious diseases, such as active tuberculosis or active syphilis, or whether the applicant has been in close contact with others with an infectious disease. Additionally, Canadian officials will consider how the applicant’s disease could affect other people already living in Canada. When it comes to public safety, the Canadian Government will consider the sudden incapacity of the applicant and the chance of unpredictable and violent behaviour.

Excessive Demand on Health or Social Services

The Canadian Government may refuse an immigration application if it determines that the applicant has a health condition that could cause excessive demand on Canada’s health or social services. This decision is also partly based on the results of the applicant’s immigration medical exam. There are two factors that are considered for whether an applicant’s condition will cause excessive demand on health or social services in Canada:

• whether the health or social services needed to treat the applicant’s health condition would negatively affect wait times for services in Canada, or
• whether the services needed to treat and manage the applicant’s health condition would likely cost more than the excessive demand cost threshold.

The excessive demand cost threshold is a dollar value that the Canadian Government uses to determine if an applicant’s care will cause excessive demand on Canada’s health and social service systems. The specific amount is calculated each year and this information is made available to the public.

Overcoming Medical Inadmissibility

If an applicant is found to be medically inadmissible to Canada, they may still be permitted to gain entry in some cases. If an applicant submits a mitigation plan for excessive demand along with their immigration application, it is possible that they may gain entry to Canada, despite having a condition that would render the applicant otherwise inadmissible.

Criminal Inadmissibility

Those who have a criminal record can also be deemed inadmissible to enter Canada. For those with criminal records, there are various options available to overcome inadmissibility and be able to enter Canada. The extent and cause of the applicant’s criminal record matters is considered when attempting to overcome inadmissibility.

Overcoming Criminal Inadmissibility

There are a few ways to overcome criminal inadmissibility. The specific method that should be employed depends on the applicant’s circumstances.

Deemed Rehabilitation

If ten years or more have elapsed since an applicant’s last criminal charge, the applicant may be permitted to enter Canada. The ten years includes any probation, fines, and any other conditions of the sentencing. Admissibility, however, depends on several factors, including:

• the seriousness of the criminal charge;
• the applicant’s entire criminal record; and
• the time that has passed since each charge.

Importantly, deemed rehabilitation is only available for a charge which if it had been committed in Canada, would carry a maximum prison sentence of ten years or less.

Individual Rehabilitation

For individual rehabilitation, at least five or more years must have passed since the Applicant’s last criminal sentence. If it has been five years, the individual can make a claim that they have been rehabilitated. When making such a claim, applicants are asked to show that they have:

• a stable lifestyle;
• a permanent home;
• employment; and
• letters of reference demonstrating their good character and that they are unlikely to commit new crimes.

Temporary Residence

A third way those who have criminal inadmissibility can enter Canada is through a temporary resident permit. In order to receive a temporary residence permit the applicant must have a valid reason to travel to Canada, and that reason outweighs any risk the applicant may pose in entering Canada. Temporary residence permits are limited to the amount of time required for the applicant’s visit. A legal opinion letter can help applicants obtain a temporary residence permit.

Contact Garson Immigration Law for Immigration Advice on Inadmissibility to Canada

The skilled immigration lawyers at Garson Immigration Law help guide clients through the intricate immigration process. At Garson Immigration Law, we pride ourselves on finding robust legal solutions to the most challenging immigration situations for businesses and individual clients. Our firm provides trusted legal advice on a variety of immigration matters, including permanent residence, citizenship, and study permits. To schedule a confidential consultation, please do not hesitate to call us at 416-321-2860 or reach out to us online.