Will a criminal record be an obstacle for sponsorship?
Under Canadian Immigration Law, foreign nationals can be declared inadmissible if they have been convicted of certain criminal offences. Inadmissibility means they can be denied entry to Canada unless they have proper authorization. If your spouse or partner has committed or has been convicted a crime, then this will be a barrier to sponsorship. It is important to know which offences they have been convicted of as only certain types of convictions can render a foreign national criminal inadmissible to Canada.
You should be aware of the offence that they were charged with, the length of the sentence or punishment imposed, as well as how much time has passed. Regardless of where the offence was committed, it is important to know what the equivalent offence would be in Canada to help examine whether they will be admissible to Canada. Under section 36(2) of the Immigration and Refugee Protection Act, a foreign national is inadmissible on grounds of criminality if they have been convicted of an indictable offence or two summary offences in Canada or the equivalent outside of Canada. In addition, a foreign national can also be found to be inadmissible for committing a “criminal act,” even if that act did not result in a conviction. This covers a variety of minor and major offences such as impaired driving or shoplifting to assault or theft.
Below is a brief overview of the types of offences that exist in Canada:
- Summary offences: These are minor offences where the maximum penalty is less than two years in jail and/or a fine less than $5’000.
- Indictable offences: These are the most serious offences. The penalties depend on the severity of the offence but often lead to lengthy imprisonment and/or massive fines.
- Hybrid offences: These offences can either be handled as summary or indictable offences and Crown counsel will decide how to proceed. However, in immigration law, any hybrid offence will be considered indictable in order to assess admissibility.
How do you overcome this obstacle?
If your spouse or partner can be declared criminally inadmissible, then they will need to overcome their conviction to be allowed to come to Canada. This can be done through either deemed rehabilitation, applied rehabilitation, or record suspension. However, the process you choose will depend on the crime committed, the time passed, and behaviour after sentencing.
Below is a brief description of the process and eligibility criteria:
- Deemed Rehabilitation: This process only applies if enough time has passed since they were convicted that the crime may no longer bar you from entering Canada. They can be deemed rehabilitated depending on if the crime committed would have be punishable by a maximum prison term of less than 10 years if committed in Canada, if 10 years has passed they completed their sentence if they committed an offence equivalent to an indictable offence or 5 years has passed if they committed the equivalent to two or more summary convictions.
The seriousness of the crime and the number of offences committed would also be considered. If they have committed more than one indictable offence, then they will not be eligible for deemed rehabilitation. You do not have to apply for deemed rehabilitation, but it is encouraged that you apply to be assessed to see if you qualify. An assessment can help determine if you are still inadmissible. - Applied Rehabilitation: As rehabilitation means that they are unlikely to reoffend, this process allows those with foreign convictions to apply for individual rehabilitation to enter Canada. Those who are not deemed rehabilitated can apply under this process if they meet the criteria. They will be eligible for rehabilitation if 5 years has passed since they committed the criminal act or 5 years has passed since the end of their sentence (this includes probation) if they were convicted.
- Record Suspension: You can also obtain a record suspension (previously referred to as a pardon) to overcome criminal inadmissibility, this sets aside your criminal conviction and seals your criminal record away from public searches. If you were convicted of an offence in Canada, then you will have to obtain a record suspension from the Parole Board of Canada. If you were convicted outside of Canada, then foreign equivalents of a record suspension or discharge can still be valid.
How We Can Help
Having a criminal record can complicate the sponsorship process, consider hiring an experienced immigration lawyer to guide you through the process of overcoming criminal inadmissibility. The Law Office of Matthew Jeffery has over 20 years of experience assisting clients with complicated cases to successfully sponsor their partners. Please CONTACT US today or fill out a free Sponsorship Assessment form to see if you qualify to sponsor your spouse or partner to Canada.