Voluntary departure and inadmissibility to Canada under paragraph 41(a) of the IRPA

[Ioana Tirgovetu]

Hello! I have applied and been refused a work permit. The reason given was:

You are found inadmissible to Canada under paragraph 41(a) of the IRPA: through an act or omission which contravenes, directly or indirectly, a provision of this Act

I have also been issued a Voluntary Departure - confirmation ( IMM 5021 ) at the same time of the refusal.

An immigration lawyer has appealed the work permit refusal.

My first question would be what does a Voluntary Departure imply? It does not have a date, it is not a departure order, it does not specify a time limit, anything at all. Does anyone know what happens if I leave and try to re-enter Canada? What if I don't leave at all and stay here? I can't seem to find anything online about the Voluntary Departure and the lawyer that has appealed the work permit refusal did not provide any information either. The only thing I know is that there is no Removal Order issued.

The second question would be for the inadmissibility. If I leave Canada can I come back with a valid ETA? I must add that my ETA was approved after the Voluntary Departure and work permit refusal were issued.

Everything is getting pretty confusing at the moment, so if anyone has been through something similar, the input would be really appreciated. Thank you!

 

[canuck78]

Hello! I have applied and been refused a work permit. The reason given was:

You are found inadmissible to Canada under paragraph 41(a) of the IRPA: through an act or omission which contravenes, directly or indirectly, a provision of this Act

I have also been issued a Voluntary Departure - confirmation ( IMM 5021 ) at the same time of the refusal.

An immigration lawyer has appealed the work permit refusal.

My first question would be what does a Voluntary Departure imply? It does not have a date, it is not a departure order, it does not specify a time limit, anything at all. Does anyone know what happens if I leave and try to re-enter Canada? What if I don't leave at all and stay here? I can't seem to find anything online about the Voluntary Departure and the lawyer that has appealed the work permit refusal did not provide any information either. The only thing I know is that there is no Removal Order issued.

The second question would be for the inadmissibility. If I leave Canada can I come back with a valid ETA? I must add that my ETA was approved after the Voluntary Departure and work permit refusal were issued.

Everything is getting pretty confusing at the moment, so if anyone has been through something similar, the input would be really appreciated. Thank you!

As previously mentioned you need to leave Canada. Your 30 day limit is almost over so if you don’t leave your voluntary departure order will change to a removal order. It is not a good idea to not leave during a voluntary departure and have a removal order. It is unclear what your status was after 2022. It appears as though before your WP expired you changed to a visitor record. Is this correct and if so did you apply to extend the visitor record and was that approved? When is the expiry date? If you don’t have valid status in Canada you will not qualify for a WP and will need to leave Canada to be able to qualify to apply for a WP. Appealing is pointless. Once you leave Canada you should expect that you may be denied entry if you attempt to reenter soon after. How did your parents obtain PR? How old are they and do they have any family in Canada? How old are you?

 

[Ioana Tirgovetu]

Where does it say that I have 30 days to leave Canada if a voluntary departure was issued? It does not mention anything about this on the form or on any other IRCC documents. Doesn’t that apply only for a removal order? My main interest is to understand the difference between a voluntary departure and a removal order. A removal order should be IMM5238, isn’t that correct? I did not receive that, as mentioned.

I was on implied status from September 2022 to January 3rd, when a negative decision was reached on my WP restoration.

I have never changed my status to a visitor record, not sure why you would think so.

My parents received the PR on humanitarian grounds, they are in their 50s with no other family in Canada. I am currently 35 years old. Why would this matter in this situation?

Thank you for your feedback!

 

[hawk39]

Where does it say that I have 30 days to leave Canada if a voluntary departure was issued? It does not mention anything about this on the form or on any other IRCC documents. Doesn’t that apply only for a removal order? My main interest is to understand the difference between a voluntary departure and a removal order. A removal order should be IMM5238, isn’t that correct? I did not receive that, as mentioned.

https://www.cbsa-asfc.gc.ca/security-securite/rem-ren-eng.html#:~:text=With a Departure,Canada (ARC).

https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf10-eng.pdf

https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-30.html#h-689321

A departure order is a removal order that has not been enforced yet. Leaving before they have to enforce it shows that you respect Canadian law, and you will be able to try again without issue. Once it becomes an enforced removal order, you are subject to arrest and deportation; in this case, you will be banned from applying for status or entering Canada unless you apply for and are granted an ARC.

 

[Ioana Tirgovetu]

I am still confused, as the terminology and the form numbers do not match. I wish I could find more specific information about this exact Voluntary departure - confirmation. More precisely, how long does it take before it becomes enforced ( if that would be the case ). It does not have a date or any other reference on the actual form, nothing at all.

From what I know, there are 3 types of removal order, correct? Departure order, Exclusion order and Deportation order. None of these match the form number that I have, which is IMM 5021

The departure order would be IMM 5238.

https://www.cbsa-asfc.gc.ca/security-securite/rem-ren-eng.html

An immigration lawyer has appealed the refusal of the WP and I will be getting a second consultation and opinion on it, but I would be highly interested in any answer and advice I could get at this time.

Thank you!

 

[Ponga]

I am still confused, as the terminology and the form numbers do not match. I wish I could find more specific information about this exact Voluntary departure - confirmation. More precisely, how long does it take before it becomes enforced ( if that would be the case ). It does not have a date or any other reference on the actual form, nothing at all.

From what I know, there are 3 types of removal order, correct? Departure order, Exclusion order and Deportation order. None of these match the form number that I have, which is IMM 5021

The departure order would be IMM 5238.

https://www.cbsa-asfc.gc.ca/security-securite/rem-ren-eng.html

An immigration lawyer has appealed the refusal of the WP and I will be getting a second consultation and opinion on it, but I would be highly interested in any answer and advice I could get at this time.

Thank you!

But...does any of this matter? You have been issued a document from IRCC stating that you must leave Canada. When your WP application was denied, you normally could have applied to change your status to that of a visitor (had 90 days to do so). Since you received the VD letter at that time, your change of status request would probably have been refused, so it's a moot point now.

Leaving voluntarily may be the smartest option, IMHO. Waiting until this escalates into a Removal Order will only add to the angst that you must be feeling, not to mention increasing the difficulty of possibly returning to Canada.

What does your lawyer suggest?

Wishing you the best of luck!

 

[Ioana Tirgovetu]

Yes, it does matter as I would like to know how much time I have before I must leave Canada “peacefully”. In the last 4 years I have accumulated assets, that of course have to be sold or taken care off. I have my parents that would have to move out and that would have to be taken care off, as they find it difficult to do that alone.

So, basically, you are saying that I could apply to change my status to visitor ( I am still within the 90 days of course )? That is something I wasn’t aware of.

I can and I am able to leave Canada at anytime, that is not an issue as long as I would be able to come back as a visitor at least so that I can arrange everything for me and my parents. I don’t plan and don’t want to move permanently to Canada, I just need more time for all of the above.

My lawyer has made an appeal to the WP refusal and at the moment recommends that I don’t leave Canada. I have my doubts about this, considering also all the answers I got here, so I will be looking for a second consultation.

 

[Ponga]

Yes, it does matter as I would like to know how much time I have before I must leave Canada “peacefully”. In the last 4 years I have accumulated assets, that of course have to be sold or taken care off. I have my parents that would have to move out and that would have to be taken care off, as they find it difficult to do that alone.

So, basically, you are saying that I could apply to change my status to visitor ( I am still within the 90 days of course )? That is something I wasn’t aware of.

I can and I am able to leave Canada at anytime, that is not an issue as long as I would be able to come back as a visitor at least so that I can arrange everything for me and my parents. I don’t plan and don’t want to move permanently to Canada, I just need more time for all of the above.

My lawyer has made an appeal to the WP refusal and at the moment recommends that I don’t leave Canada. I have my doubts about this, considering also all the answers I got here, so I will be looking for a second consultation.

Great plan!

Because your WP application was denied AND you simultaneously received the letter, I'm not sure if applying to restore/change your status would be worth trying. I'm sure your second opinion from a lawyer will be able to tell you.

 

[Ioana Tirgovetu]

Hopefully the second lawyer will be able to provide more information.

Now, a question comes to my mind: if I have 90 days to apply for restoration or change of status, that would also be the time period that I have to “peacefully” comply with the VD, correct?

Just an assumption of corse!

 

[Ponga]

Hopefully the second lawyer will be able to provide more information.

Now, a question comes to my mind: if I have 90 days to apply for restoration or change of status, that would also be the time period that I have to “peacefully” comply with the VD, correct?

Just an assumption of corse!

Here is an older thread that you may want to review:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/voluntary-departure-vs-order-to-leave-is-it-same-or-diff.196267/

For me, this is the key point (from your initial post):

You are found inadmissible to Canada under paragraph 41(a) of the IRPA: through an act or omission which contravenes, directly or indirectly, a provision of this Act.

Because you are [apparently] now inadmissible, applying for anything would likely be denied. Suggest you talk with the new lawyer (not a consultant) ASAP. Do report back as the information may be helpful to others!

 

[Ioana Tirgovetu]

I have already checked and read everything related, including the thread you have mentioned.

I am currently in this situation because I have trusted completely and blindly my previous consultant. That is why I am now researching everything that I can and will get a second opinion, even a third if I am not convinced.

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.

A Canadian immigration officer will decide if you can enter Canada when you:
• apply for a visa or an Electronic Travel Authorization (eTA) or
• when you arrive at a port of entry.

I have applied and obtained an ETA after the VD has been issued, so I must assume that, at least at the moment, I am eligible to enter Canada ( ? )

I do have an appointment for February 5th ( trying to anticipate that ) and I will refer everything I have been told, of course. I can understand how frustrating it can be to not find answers.

Thank you for the time you have taken to answer my concerns! I truly appreciate it!

 

[scylla]

Yes, it does matter as I would like to know how much time I have before I must leave Canada “peacefully”. In the last 4 years I have accumulated assets, that of course have to be sold or taken care off. I have my parents that would have to move out and that would have to be taken care off, as they find it difficult to do that alone.

So, basically, you are saying that I could apply to change my status to visitor ( I am still within the 90 days of course )? That is something I wasn’t aware of.

I can and I am able to leave Canada at anytime, that is not an issue as long as I would be able to come back as a visitor at least so that I can arrange everything for me and my parents. I don’t plan and don’t want to move permanently to Canada, I just need more time for all of the above.

My lawyer has made an appeal to the WP refusal and at the moment recommends that I don’t leave Canada. I have my doubts about this, considering also all the answers I got here, so I will be looking for a second consultation.

I have already checked and read everything related, including the thread you have mentioned.

I am currently in this situation because I have trusted completely and blindly my previous consultant. That is why I am now researching everything that I can and will get a second opinion, even a third if I am not convinced.

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.

A Canadian immigration officer will decide if you can enter Canada when you:
• apply for a visa or an Electronic Travel Authorization (eTA) or
• when you arrive at a port of entry.

I have applied and obtained an ETA after the VD has been issued, so I must assume that, at least at the moment, I am eligible to enter Canada ( ? )

I do have an appointment for February 5th ( trying to anticipate that ) and I will refer everything I have been told, of course. I can understand how frustrating it can be to not find answers.

Thank you for the time you have taken to answer my concerns! I truly appreciate it!

Stay away from consultants. You need to be working with a lawyer.

 

[Ioana Tirgovetu]

Yes, I know that now. I have learned that the hard way, unfortunately.

 

[Ioana Tirgovetu]

Hello again!

I thought I should update the procedure here, maybe someone is going through the same situation and this could help.

I did get a second opinion from another immigration lawyer and the conclusions would be as follows:

- the voluntary departure is a "grey area". It is considered a departure order, but it is not enforceable and it does not have a date. You should leave the country before your status expires ( in my case, I left and re-entered Canada while my restoration was processed and I have lost my status, I am now a visitor and I have 6 months ). IRCC doesn't really have the authority to issue these departure orders, but they do so in order to "convince" people to leave the country
- the voluntary departure will not automatically transform into a departure order
- leaving Canada while on implied status won't stop your application ( as stated by my first lawyer ) it will only make you lose your status ( that I don't have since I am just a visitor at the moment )
- inadmissibility under 41a is strictly based on the restoration refusal and does not affect coming back to Canada, as long as I meet the requirements. That is why my ETA was approved after I was issued the voluntary departure
- as advised by the lawyer, I have appealed the decision ( for reasons that are too long to state here ) and I will be exiting Canada within the 6 months that I have as a visitor. I will re-enter Canada ( current ETA ) and the appeal should help the requirements asked for at the border ( if any )

 

[canuck78]

Hello again!

I thought I should update the procedure here, maybe someone is going through the same situation and this could help.

I did get a second opinion from another immigration lawyer and the conclusions would be as follows:

- the voluntary departure is a "grey area". It is considered a departure order, but it is not enforceable and it does not have a date. You should leave the country before your status expires ( in my case, I left and re-entered Canada while my restoration was processed and I have lost my status, I am now a visitor and I have 6 months ). IRCC doesn't really have the authority to issue these departure orders, but they do so in order to "convince" people to leave the country
- the voluntary departure will not automatically transform into a departure order
- leaving Canada while on implied status won't stop your application ( as stated by my first lawyer ) it will only make you lose your status ( that I don't have since I am just a visitor at the moment )
- inadmissibility under 41a is strictly based on the restoration refusal and does not affect coming back to Canada, as long as I meet the requirements. That is why my ETA was approved after I was issued the voluntary departure
- as advised by the lawyer, I have appealed the decision ( for reasons that are too long to state here ) and I will be exiting Canada within the 6 months that I have as a visitor. I will re-enter Canada ( current ETA ) and the appeal should help the requirements asked for at the border ( if any )

One warning. The ETA does now guarantee entry. If there are concerns that you are spending too much time in Canada you can be either denied entry to Canada or given limited time in Canada. Given your situation would never assume that reentry is guaranteed As a visitor because you have expressed the desire to live in Canada. You were actually quite lucky to be able to reenter right away. You could have easily been denied entry given your situation.