IS UK REHABILITATION OF OFFENDERS ACT 1974 RECOGNIZED FOR PURPOSE OF IMMIGRATION

[BAAS]

Hi all. Only one question and a definitive answer would be greatly appreciated;

Is the UK Rehabilitation of Offenders Act 1974 recognized in Canada for the purpose of immigration?

Thanks in advance.

 

[Baloo]

In what context?

Overcoming criminal inadmissibility

http://www.cic.gc.ca/english/visit/conviction.asp

 

[BAAS]

Yes, regarding spent convictions.

 

[Baloo]

Not really, you need to follow the Canadian rules.

Can you explain the situation a bit more, so maybe we can provide a better answer?

 

[BAAS]

I have 2 convictions from 1996 and 2002 respectively and both are considered spent under the terms of the ROA 1974, along with some minor motoring offences which are not considered under the Canadian Criminal Code. I have seen a letter from the Canadian High Commission Immigration Section in London which states that an offence by a UK citizen in the UK will be assessed under the ROA 1974, rather than the Canadian Immigration and Refugee Protection Act, due to the Burgon case ruling and that because of this a person is no longer considered inadmissible for the purpose of immigration, after the required passage of time has past for the conviction to become "spent".

 

[rjessome]

I have 2 convictions from 1996 and 2002 respectively and both are considered spent under the terms of the ROA 1974, along with some minor motoring offences which are not considered under the Canadian Criminal Code. I have seen a letter from the Canadian High Commission Immigration Section in London which states that an offence by a UK citizen in the UK will be assessed under the ROA 1974, rather than the Canadian Immigration and Refugee Protection Act, due to the Burgon case ruling and that because of this a person is no longer considered inadmissible for the purpose of immigration, after the required passage of time has past for the conviction to become "spent".

No crime is ever assessed against IRPA. They are assessed against the Criminal Code of Canada. Depending upon the motor vehicle offences you committed, they may not deem you inadmissible as many are covered under the various provincial motor vehicle Acts, and not an Act of Parliament. Check the offences to see if they are in the Criminal Code of Canada. If not, you should be fine.

 

[BAAS]

This is the letter i'm quoting (it is not addressed to me); High Commission of Canada
Immigration Section
38 Grosvenor Street
London W1K 4AA
United Kingdom

30th April 2010

Dear Mr. Xxxxxxx

This is in reply to your application for criminal rehabilitation under Canada's Immigration and Refugee Protection Act. I am pleased to inform you that your application has been approved.

As your criminal conviction and sentence was incurred in the United Kingdom your case has been assessed under the UK Rehabilitation of Offenders Act 1974 in accordance with the Burgon case dated February 21, 1991 in the Federal Court of Appeal in Canada. The Rehabilitation of Offenders Act 1974 enables some criminal convictions to become 'spent'. or ignored, after a statutory time period. As per the Rehabilitation of Offenders Act 1974, no documentary evidence that the conviction is spent is issued by British authorities. As a result of the Canadian decision, you ceased to be inadmissible to Canada after the expiry of the statutory British waiting period following the date of the conviction........................................

So, there it states that if a persons convictions are spent in the UK they are therefore admissible to Canada?

Many thanks.

 

[CharlieD10]

I think the operative word in there is "some". As in, that decision may not refer to ALL "spent" convictions and it is important to know which were referred to in the Burgon case before you can assume it applies to your convictions and you need not compare them to the Canadian Criminal Code.

 

[BAAS]

It goes on to say that; ............ The effect of this decision is that you are no longer described in Section A36(1)(b) of the Immigration and Refugee Protection Act for your conviction for "Assault" on 17 September 2001./color]

Ok so under Section A36(1)(b) A permanent resident or foreign national is inadmissible on grounds of serious criminality for; "Having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years."

My main conviction from 1996 is punishable in Canada (and similar to that of Burgon) of a sentence of up to 5 years less one day and my second "big" one is for failing to provide a breath specimen.

Also, I am 100% sure that my convictions are spent as per ROA 1974.

Thanks.

 

[Baloo]

I believe that there is an option to have your admissibility checked by a visa office.

Being assessed by a visa office

You do not have to apply to be deemed rehabilitated, but you should be sure you will qualify before you try to enter the country. Otherwise, you could be found inadmissible to Canada when you arrive at the border. It is in your best interest to be assessed by the Canadian embassy, high commission or consulate responsible for your area. This will help ensure you do not travel to Canada only to be refused entry or be subject to other enforcement action.

http://www.cic.gc.ca/english/information/inadmissibility/rehabilitation.asp

To be assessed, fill out an application for Rehabilitation but in Section A, check the box “for information only.” (You should also do this if you know you are not eligible to apply, but would like to find out about possible options for entering Canada. See Coming to, or Remaining in Canada Without Approval of Rehabilitation for more information.)


You should note:

A decision on your admissibility can only be made when you apply to come to Canada or at a port of entry.

 

[rjessome]

It goes on to say that; ............ The effect of this decision is that you are no longer described in Section A36(1)(b) of the Immigration and Refugee Protection Act for your conviction for "Assault" on 17 September 2001./color]

Ok so under Section A36(1)(b) A permanent resident or foreign national is inadmissible on grounds of serious criminality for; "Having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least ten years."

My main conviction from 1996 is punishable in Canada (and similar to that of Burgon) of a sentence of up to 5 years less one day and my second "big" one is for failing to provide a breath specimen.

Also, I am 100% sure that my convictions are spent as per ROA 1974.

Thanks.

Since the letter you are quoting is not addressed to you it does not apply to you. That's first and foremost because it is a danger applying another person's results to your situation as I'm 99.9% positive that they are NOT the same. If you provide the exact offences you were convicted of, not similar to, and the dates that the sentences were finished on each then we may be able to provide you with more accurate information.

From what you've stated so far, you were convicted of a comparable offence to Section 254(5) of the Criminal Code of Canada - Failure or refusal to provide sample. This is a hybrid offence which means it can be punishable by way of indictment or summary conviction. However, for the purposes of the Immigration and Refugee Protection Act, all hybrid offences are treated as indictable. And you also have a previous conviction although we don't know what it's for. IRPA treats this as follows:

(2) A foreign national is inadmissible on grounds of criminality for

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

You require legal advice. I know you are holding onto the Burgon decision but it is from 1991. In 2001, a Federal Court of Appeal judge stated in Canada (Minister of Citizenship and Immigration) v. Saini, 2001 FCA 311, [2002] 1 FC 200

Subparagraph 19(1)(c.1)(i) demonstrates that Canadian immigration law does not necessarily exclude all persons convicted of a crime that is considered serious in a foreign jurisdiction; a conviction must also be considered serious in Canada for a person to be denied admission on that basis. Similarly, an offence considered trivial abroad may be considered serious by Canadian standards and lead to exclusion. Thus, the Burgon decision did not decide that foreign law supercedes Canadian immigration law. Canadian authorities are not required to attorn to the laws and policies of other lands in determining whether a person has been "convicted" for the purposes of the Immigration Act. No general principle of absolute recognition of foreign pardons was established by Burgon. However, in assessing whether persons who have been convicted abroad, but later pardoned, ought to be inadmissible under subparagraph 19(1)(c.1)(i), it is open to our courts to consider the effect of foreign laws in appropriate circumstances. Moreover, there is nothing in the post-Burgon cases that stands for the principle that a foreign pardon is binding on Canadian courts if there is some similarity between our legal system and our law and a foreign legal system and its laws. Three elements must be established before a foreign discharge or pardon may be recognized: (1) the foreign legal system as a whole must be similar to that of Canada; (2) the aim, content and effect of the specific foreign law must be similar to Canadian law; and (3) there must be no valid reason not to recognize the effect of the foreign law.

This case goes on to state:

Foreign pardons should only be recognized in rare situations, such as in Burgon, where it would be unjust not to give effect to a similar country's similar laws that fully forgive individuals for the crimes they have committed. The third branch of our test ensures that, if there is any valid basis upon which to deny recognition to a foreign pardon, then a potential immigrant can and should still be considered "convicted" for the purposes of subparagraph 19(1)(c.1)(i).

Wasn't Burgon's case trafficking? I thought you said yours was a minor motor vehicle offence. There were also some pretty unique circumstances in Burgon wherein she helped the police with the arrest and prosecution of her boyfriend who got her involved in trafficking. Let me say again, you need legal advice.

 

[ShaunT]

Im not sure if BAAS is still around on this forum and did ever find an answer to his question. However I am currently in a similar situation and about to apply for spousal sponsorship. I am going to send off the rehabilitation for info only as I believe that I am admissible to Canada on the basis on the information I have found which also supports that which has also been posted in this thread.


Starting with the most basic answer to the question.
canadainternational.gc.ca/united_kingdom-royaume_uni/visas/faq.aspx?lang=eng&view=d#Sponsoring

I am sponsoring my spouse/partner, but he/she has a criminal conviction, how will this affect his/her application?

If a conviction is considered spent under the UK Rehabilitation of Offenders Act, this will probably not affect his/her application. However, if the conviction has not been spent or if the offence was committed in another country, it may mean that your spouse/partner is considered inadmissible. This means that he/she cannot enter Canada. In rare cases, special permission to enter is granted.

So my caution and conviction were both from crimes comitted in the UK. As such they are now deemed spent under the Rehabilitation Of Offenders Act. The most recent being a fine for disorderly conduct and was considered spent September 2004. So from reading the above these should 'probably' not effect my entry into Canada.

I went to seek clarification for this online and then found the following.

This is from ENF 14 /OP 19 Criminal rehabiliation Manual
The effect of a foreign pardon does not necessarily render a person admissible to Canada. The following factors must be taken into account.

"the UK Rehabilitation of Offenders Act automatically pardons eligible individuals without the person having to apply, if the person has been sentenced to a term of imprisonment of less than 30 months"

So if you fall under a prescribed class of person described in section A36(1) A36(2) of the IRPA then you are classed as inadmissible to Canada.

There is however a caviat to this A36(3) again taken from ENF 14 /OP19 Criminal Rehabilitation
"Inadmissibility under A36(1) and A36(2) may not be based on a conviction in respect of which: i) A Pardon has been granted and has not ceased to have effect or been revoked under the criminal records act or ii) there has been a final determination of an acquital"

Things are cloudy here also as it states a pardon under the criminal records act. (Not the UK rehabilitation of offenders act)

I then found a couple of interesting documents
cisr.gc.ca/Eng/brdcom/references/legjur/iadsai/appl/Documents/sponsor_parrain_e.pdf (Chapter 2 Page 8 )
irb-cisr.gc.ca/Eng/brdcom/references/legjur/iadsai/roaren/Documents/RoaAmrChap08_e.pdf (Page 20)

The first reference is taken from Chapter 2 page 8 Sponsorhip Appeals

Foreign convictions
Foreign dispositions in criminal matters may take forms unknown under Canadian law and their effect will have to be determined by the IAD. The use of the word “convicted” in section 36 of IRPA means a conviction that has not been expunged.(21) Foreign convictions can also be expunged.

The reference (21) in the above is Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.).

What the above represents is that the definition of "convicted" meaning you are a person described under 36(1) 36(2) of the IRPA becomes void as it is only relevant for outstanding convictions. Accepting that a foreign conviction may become spent or expunged. This is the case with the Rehabilitation of Offenders act.

Not content with what I had found so far.

This then takes us to Page 20, Removal order Appeals. Criminal Equivalency.

Effect of a Pardon
The granting of a pardon in another country does not necessarily render the person concerned admissible to Canada. The Federal Court of Appeal considered the effect of a pardon in a foreign jurisdiction in Burgon.57 The Court concluded that in using the word “convicted” in the inadmissibility provisions, Parliament meant a conviction that has not been expunged pursuant to any other legislation it had enacted. The Court further held that when the laws and legal system of the foreign country are substantially similar to those of Canada in purpose, content and result, effect should be given to a foreign pardon unless there is good reason not to do so.

The further question to consider is whether the U.K. legislation, which is similar in purpose, but not identical to the Canadian law, should be treated in the same way. In both countries, certain offenders are granted the advantage of avoiding the stigma of a criminal record so as to facilitate their rehabilitation.There is no good reason for Canadian immigration law to thwart the goal of this British legislation, which is consistent with the Canadian law.
Our two legal systems are based on similar foundations and share similar values. …

Unless there is some valid basis for deciding otherwise, therefore, the legislation of countries similar to ours, especially when their aims are identical, ought to be accorded respect. While I certainly agree with Justice Bora Laskin that the law of another country cannot be “controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted” (see Minister of Manpower and Immigration v. Brooks,
[1974] S.C.R. 850, at page 863), we should recognize the laws of other countries which are based on similar foundations to ours, unless there is a solid rationale for departing therefrom. …

The burgon case is quoted below including Barnett V Canada with specific reference to the Rehabilitation Of Offenders Act 1974. The paragraph I have highlighted in Bold I believe sums it all up quite nicely.

M.E.I. v. Burgon, David Ross (F.C.A., no. A-17-90), MacGuigan, Linden, Mahoney (concurring in the result), February 22, 1991. Reported: Canada (Minister of Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (C.A.). The Court had to consider the application to the definition of “convicted” in the former Immigration Act of the United Kingdom Powers of Criminal Courts Act, 1973, which legislation provided that a person who was convicted of an offence (like Burgon’s offence) and received a probation order was deemed not to be convicted of the offence. In the Court’s view, Burgon was not considered convicted under United Kingdom law; therefore, because the United Kingdom and Canadian legal systems were so similar, there was no conviction for purposes of the Immigration Act. See also Barnett, John v. M.C.I. (F.C.T.D., no. IMM-4280-94), Jerome, March 22, 1996. Reported: Barnett v. Canada (Minister of Citizenship and Immigration) (1996),
33 Imm. L.R. (2d) 1 (F.C.T.D.). The Court considered another piece of legislation, the United Kingdom Rehabilitation of Offenders Act, 1974, which provided that, where a person was convicted and sentenced for certain offences and was then rehabilitated, the conviction was expunged. The Court applied the rationale in Burgon and found that, although there were differences in the two pieces of legislation, the effect was the same: under both statutes, the person could not be said to have been convicted. Therefore, Barnett was not considered to have been convicted in the United Kingdom and he was not convicted for purposes of the Immigration Act.

Futhermore I have a letter on my compter from a CIC officer dated 2010 which states the following. It is not a letter to me.

After careful review of you appliction, it has been dtermined that you are no longer a person described under sub-section A36(1)(b) or A36(2)(b) of the Immigration and Refugee Protection Act (IRPA) of Canada for criminality abroad.

Previous jurisprudence - namely the Burgon Federal Court of Appeal case - instructed immigration officials to generally assess th UK convictions under the UK Rehabilitation of Offenders Act (1974) instead of the provisions of the IRPA. As such it has been determined that you are no longer inadmissible to Canada since 2005 (5 years after the sentence imposed in your particular case) for the convictions comitted in you native England. As such, the application has been refused as you are not a person eligible or in need of Criminal Rehabilitation and/or of a Temporary Resident Permit (TRP) at this time.



From the information I have gathered I believe that if you have been convicted of minor criminality inside the United Kingdom and your crimes are covered under that Act then you should have no problem getting into Canada.

I will of course report the outcome after I submit my application for info only.

I hope others may find the resource I have posted within this thread useful and go some way to help you save time in searching on the internet.
I also look forward to others views on what I have posted here.

 

[BAAS]

Hi, what you have laid out above is summarily the same as all the info I have managed to collect. I too will let you know how I get on with updates as they come.

 

[PMM]

Hi

Hi, what you have laid out above is summarily the same as all the info I have managed to collect. I too will let you know how I get on with updates as they come.

1. You should note that in Burgon it was under the previous Act and that she received a probation order.
2. Also the system of pardons in the UK is different in Canada, in the UK A pardon is no longer considered to remove the conviction itself, but only removes the penalty which was imposed. Use of the royal prerogative of mercy is now rare, particularly since the establishment of the Criminal Cases Review Commission and Scottish Criminal Cases Review Commission, which provide a statutory remedy for miscarriages of justice. Therefore, the granting of pardons is very rare and the vast majority of recognised miscarriages of justice were decided upon by the courts. While in Canada A pardon does not, however, erase the fact that an individual was convicted of a crime. The criminal record is not erased, but it is kept separate and apart from other (non-pardoned) criminal records. A pardon removes disqualifications caused by a criminal conviction, such as the ability to contract with the federal government, or eligibility for Canadian citizenship.
3. You have to read Burgon fully

"C. The Burgon Case & Subsequent Jurisprudence

[10] With respect, we are of the view that the Motions Judge misinterpreted the principle established in Burgon. That case did not hold that Canadian immigration law is bound by any pardon in any foreign land with a legal system "somewhat similar" to ours. Before we proceed, we should review the Burgon case.

[11] Ms. Burgon was a British citizen who was sentenced to two years' probation following a plea of guilty to conspiracy to supply controlled drugs. Although she herself was involved in the conspiracy to a minor extent under the influence of her former husband and his associates, she co-operated with the police and helped to convict a ring of drug dealers. Soon after that, she remarried to a Canadian citizen, later came to Canada and eventually sought admission to Canada as a permanent resident. Immigration authorities declared that Ms. Burgon was an inadmissible person under paragraph 19(1)(c) of the Immigration Act, which was similar in effect to its successor, subparagraph 19(1)(c.1)(i), in that it denied admission to persons convicted of serious offences outside of Canada.


[12] However, under subsection 13(1) of the United Kingdom's Powers of Criminal Courts Act, 1973, U.K., 1973, c.62, a person sentenced to probation is expressly deemed not to be convicted:

The cases are outlined best in Saini http://decisions.fca-caf.gc.ca/en/2001/2001fca311/2001fca311.html

 

[ShaunT]

PMM

I bring your attention to these 2 letters.

Criminal Rehab 1

Criminal Rehab 2