If you pay attention to government audits, you might be aware that a 2020 report from the Auditor General of Canada found that the Border Services Agency lost track of 37,400 foreign nationals and permanent residents who had been ordered deported. While most of the removal orders involved failed asylum claimants, 2,800 were ordered deported due to criminal activity.
While the Border Services Agency responded that it had established a new multi-year removals strategy, our readers might ask what kind of criminal activity can get one deported. With extensive experience in immigration law and in defending foreign nationals and permanent and temporary residents from criminal charges, the Greater Toronto Area lawyers of Mass Tsang LLP can tell you.
Read on to learn more about how criminal charges can affect your immigration status but know that the following information should not be construed as legal advice. And, if you’re a foreign national or permanent resident facing criminal charges, it’s imperative to consult with highly competent immigration and criminal defence lawyers to protect your immigration status.
Your Status Under Canadian Immigration Law
Under Canadian law, anyone who is not a citizen of Canada is categorized as either a foreign national or a permanent resident. A permanent resident has been granted permission to live and work in Canada with almost all the same benefits as a citizen. This status remains unlimited in duration, though those under it must reside in the country for a designated timeframe and renew their residency every five years.
The government uses the term foreign national to describe everyone who is not a Canadian citizen or permanent resident, though some foreign nationals are granted official temporary resident status. Foreign nationals include:
- Temporary foreign workers
- International students
- Foreign business visitors
- International tourists
- Foreign diplomats
- Illegal and/or stateless residents
While permanent residents have more rights than foreign nationals, a criminal conviction can result in a deportation order for either category, though the latter faces the greater risk.
Degree of Criminality Determines “Inadmissibility”
When a permanent resident or foreign national is convicted of a criminal offence, the court notifies the Canada Border Services Agency, which will review the charges to determine whether the conviction should render the defendant’s immigration status as “inadmissible.” Those deemed inadmissible are not allowed to enter Canada or, if already in Canada, lose their immigration status and must leave the country.
Inadmissibility and subsequent deportation depend on the seriousness of the “criminality” as defined under Sections 33-37 of the Immigration and Refugee Protection Act. Permanent residents and foreign nationals face inadmissibility for “serious criminality,” while foreign nationals can also be deemed inadmissible for “criminality.” The Act defines serious criminality as:
- Conviction of any federal criminal offence with a prison term of 10 years or more, even if the actual sentence is less.
- A sentence in a federal criminal conviction of six months or more.
- Committing a criminal act outside of Canada that, if convicted of in Canada, would be punishable by a maximum prison sentence of 10 or more years.
The threshold for foreign nationals deemed inadmissible by criminality is:
- Conviction of any federal offence that can be charged by indictment, even if prosecuted summarily.
- Conviction of two separate federal offences not arising out of a single occurrence.
Thus, foreign nationals face an increased risk of inadmissibility based on relatively minor crimes. However, note that because standard DUI offences now carry a maximum 10-year prison sentence, the offence makes permanent residents and foreign nationals inadmissible. This makes it imperative for any permanent resident or foreign national to try and beat the charges by hiring a skilled legal team.
Other criminal convictions that jeopardize the immigration status of permanent residents and foreign nationals include:
- Hit and run
- Reckless driving
- Flight from a police officer
- Assault causing bodily harm
- Domestic assault
- Theft over $5,000
Other Ways Criminal Charges May Affect Your Immigration Status
While the Canada Border Services Cannot deem a criminal suspect inadmissible absent a conviction, an arrest can impact your immigration status in other ways. If you apply for new immigration status, citizenship, or renewal of status, you must disclose the arrest in your application. Failing to disclose an arrest can render you inadmissible due to misrepresentation. Additionally, the Agency will assess any disclosed arrest information while making determinations about your immigration status. The Agency has broad authority in making such determinations, and if they don’t like what they see, they can deny applications.
Your Options if Facing Inadmissibility Due to Criminal Charges
Immigration law is complicated enough absent any Border Services Agency consideration of possible criminal offences. Thus, we cannot stress enough the importance of retaining expert legal advice if you’re a permanent resident or foreign national facing criminal charges. Your legal recourses may be limited, but a competent criminal lawyer may be able to help you avoid an inadmissible-generating conviction, while a skilled immigration lawyer can help you navigate a strategy designed to preserve your immigration status.
If you’re facing criminal charges, make sure that you provide your criminal defence lawyer with complete details about your immigration status, as the importance of your immigration status may play a role in strategizing a defence. Along with negotiating with the Crown for reduced charges to preserve your immigration status, your lawyer may be able to work out a deal for a conditional or absolute discharge. A discharge is not considered a “conviction” under Canadian law, which will preclude any finding of inadmissibility.
Meanwhile, you should also consult with your skilled immigration lawyer if you’re facing criminal charges. While you have limited options if deemed inadmissible and subject to deportation, your immigration lawyer can effectively explore all possible avenues for avoiding deportation. If you are a permanent resident, you may be able to appeal the removal order to the Immigration and Refuge Board. Permanent residents and foreign nationals can apply for judicial review of their removal order. Depending on the criminal charges, you may also be eligible for criminal rehabilitation, a formal process designed to prove that you do not pose a threat to Canadian society.
Mass Tsang Provides Expertise in Immigration and Criminal Defence
A criminal arrest and conviction in Canada represent a dire threat to the immigration status of any permanent resident or foreign national. With decades of Greater Toronto Area experience and success in both legal realms, contact Mass Tsang for a free consultation.