PR refusal for criminal offence - need an advice

[erolich]

Hello everyone,

Sadly got a refusal for sponsoring my husband who lives in UK (romanian national), I am a Canadian citizen and have to stay in UK as a visitor to be with my husband. We got a refusal based on his criminal offence: Driving whilst disqualified ("if committed in Canada, would constitute an indictable offence under an Act of Parliament"). So he is inadmissible, and it extends to any stay in Canada as a visitor. He will only be eligible after 5 years past the completion of the sentence.

My question: is he still eligible to come as a temporary visitor. His offence is not that "of a serious criminal nature" in my opinion and it happened 2 years ago, no other offences after that. Can anyone help me here please? Or had similar situation?

Now we are expecting a baby and I don't know whether I should give birth in Canada or UK. Any ideas here?

We still have time to appeal the decision, but we don't know if we actually can do it based on this criminal offence. Any idea here as well?

Immigrant officer in his refusal letter suggests that my husband now sponsors me in UK. Can I argue that I have strong ties with Canada (like my job, my family) and so I cannot stay in UK OR if my husband is ineligible to sponsor me in UK (based on financial situation)?

In general, does it matter for them that the family will live apart for the next five years?

Any thoughts, any help will be greatly appreciated. We are quite desperate, I already have my ticket booked to Canada and now we are deciding what to do.

 

[scylla]

So he is inadmissible, and it extends to any stay in Canada as a visitor. He will only be eligible after 5 years past the completion of the sentence.

My question: is he still eligible to come as a temporary visitor. His offence is not that "of a serious criminal nature" in my opinion and it happened 2 years ago, no other offences after that. Can anyone help me here please? Or had similar situation? Immigrant officer in his refusal letter suggests that my husband now sponsors me in UK. Can I argue that I have strong ties with Canada (like my job, my family) and so I cannot stay in UK OR if my husband is ineligible to sponsor me in UK (based on financial situation)? In general, does it matter for them that the family will live apart for the next five years?

As you've said, he's inadmissible to Canada until 5 years have passed since the completion of his sentance. This inadmissibility applies to all entries into Canada (i.e. not just PR, but visiting as well). No, the fact you have strong ties to Canada and/or your husband is unable to sponsor you to the UK will not override the inadmissibility. The only way your husband will be granted temporary entry into Canada before the five years have passed it through a Temporary Resident Permit. You can find out how to apply here: http://www.cic.gc.ca/english/information/inadmissibility/permits.asp As with all things immigration, there is no guarantee of approval.

 

[erolich]

Thank you so much for your reply!!! It gives me a much better idea of what to do next.

One more question I forgot to ask: we decided that my husband will now apply for British citizenship and passport, it might take 1,5 years. So when he receives the British passport in approx 1,5 years, can he enter Canada as a visitor (British citizens do not require visa to enter Canada)?

Thank you!!!

 

[scylla]

Thank you so much for your reply!!! It gives me a much better idea of what to do next.

One more question I forgot to ask: we decided that my husband will now apply for British citizenship and passport, it might take 1,5 years. So when he receives the British passport in approx 1,5 years, can he enter Canada as a visitor (British citizens do not require visa to enter Canada)?

Thank you!!!

The British passport will unfortunately change nothing. He's still inadmissible until the 5 years have passed.

 

[erolich]

So it means that if he goes to Canada just as a tourist and on the customs he says nothing (he will be just a tourist visiting Canada), they will check that he applied for sponsorship before and was inadmissible? So it means they won't let him go out of the airport in Canada and will send him back to UK?

 

[scylla]

So it means that if he goes to Canada just as a tourist and on the customs he says nothing (he will be just a tourist visiting Canada), they will check that he applied for sponsorship before and was inadmissible? So it means they won't let him go out of the airport in Canada and will send him back to UK?

Yes. Maybe not quite like you described - but being sent home on the next flight and not being allowed to enter Canada is still the outcome he should expect since he's inadmissible.

Again, if he wants to enter Canada before the 5 years have passed, he needs to apply for the Temporary Resident Permit.

 

[erolich]

Yes. Maybe not quite like you described - but being sent home on the next flight and not being allowed to enter Canada is still the outcome he should expect since he's inadmissible.

Again, if he wants to enter Canada before the 5 years have passed, he needs to apply for the Temporary Resident Permit.

And what is the minimum time (1,2,3.. years?) when he can now apply for Temporary resident permit? I didn't quite understand, sorry...

 

[scylla]

He can apply for the TRP now. Read through the link I provided earlier. The TRP is specifically for people who are otherwise inadmissible to Canada.

 

[erolich]

Great, thank you again so much!!! Good luck to everyone!

 

[erolich]

One more question arise: if I give birth to my child in UK, will he be able to get a Canadian passport?

I am a Canadian citizen (I came to Canada as a legal immigrant in 2003 and got my Canadian citizenship in 2008)

 

[screech339]

One more question arise: if I give birth to my child in UK, will he be able to get a Canadian passport?

I am a Canadian citizen (I came to Canada as a legal immigrant in 2003 and got my Canadian citizenship in 2008)

Since you are a naturalized Canadian, you can pass on canadian citizenship to your child. Not sure of the procedure to grant your child a temporary Canadian passport. You may need to check out www.ppt.gc.ca on that.

Screech339

 

[bartjones]

I am in a similar situation with my wife. scylla is correct, the only way for him to enter Canada is to obtain a TRP.

One thing you should probably do is file the appeal. My lawyer says that if the PR refusal is based on a single criminal offence which is relatively minor and the applicant has no other prior or subsequent criminal history, the chances of the appeal succeeding are very good.

 

[jomz]

I am in a similar situation with my wife. scylla is correct, the only way for him to enter Canada is to obtain a TRP.

One thing you should probably do is file the appeal. My lawyer says that if the PR refusal is based on a single criminal offence which is relatively minor and the applicant has no other prior or subsequent criminal history, the chances of the appeal succeeding are very good.

Please be advised of the following. "serious criminality" under the Immigration Act "serious criminality" refers to a crime punished in Canada by at least two years' imprisonment, so what many may think that a small offence is appealable, when in fact it is not. Have your lawyer check the regulation and provide you with printed copy of the sections of the Act under which you can be granted an appeal. make him/her work for her money, and never ever trust what a lawyer or consultant says at face value, always ask for the relevant sections of the law!!! Always!!!


Even though sponsors have a statutory right of appeal pursuant to section 63 of the Act, there are some limitations. First, as noted above, there is no right to an appeal if the applicant applied under the in-Canada spousal sponsorship program. This is because the refusal of an in-Canada application is the refusal of permanent resident status, and not the refusal of a permanent resident visa. The only recourse to challenge such a refusal is by making an application for leave to commence an application for judicial review in the Federal Court.

Under section 64 of the Act, there is no right of appeal to the IAD if the applicant is inadmissible on grounds of “security, violating human or international rights, serious or organized criminality.”15 For the purposes of this provision, “serious criminality” refers to a crime punished in Canada by at least two years' imprisonment.

In 2005, Madame Justice MacTavish in Kang v. Canada (Minister of Citizenship & Immigration)17 confirmed this restriction by ruling that the IAD does not have jurisdiction to consider the jurisdictional facts related to the determination that the person was inadmissible pursuant to section 64 of the Act. In other words, all that is necessary to preclude an appeal is a finding by an immigration officer of one of the above grounds of inadmissibility – the IAD will not inquire into whether the person is actually inadmissible.

To allow an appeal, the IAD must be satisfied that:

(a) The decision appealed is wrong in law or fact or mixed law and fact;
(b) There was a breach of natural justice; or
(c) There are sufficient humanitarian and compassionate considerations to warrant special relief on equitable grounds.

If the IAD allows the appeal, it may either set aside the original decision, substituting determination that should have been made, or refer the matter back to the appropriate decision maker for reconsideration.

 

[screech339]

I am in a similar situation with my wife. scylla is correct, the only way for him to enter Canada is to obtain a TRP.

One thing you should probably do is file the appeal. My lawyer says that if the PR refusal is based on a single criminal offence which is relatively minor and the applicant has no other prior or subsequent criminal history, the chances of the appeal succeeding are very good.

The problem is that the OP mentioned that the offense is "minor"? According to the letter, it is an equivalent to an indictable offense if this happened in Canada. This is not a minor offense. That is a major offense. Doesn't sound minor to me.

However I had an applicant in my timesheets that applied inland and got a negative decision made on account that the applicant had an indictable offense in Canada.

You can try for an appeal but it would likely pass appeal if the offense was a minor offense. This is an major offense since it said it is the same indictable offense in Canada.

Screech339

 

[jomz]

Bartjones, check the Criminal Code to see where the crime committed by your spouse falls into

http://canlii.ca/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html

If the same crime in canada has at least a 2 year prison term, than chances of winning on appeal will be slim. As noted in my post above (copied from actual Government of Canada regulations outlined by the Canadian Bar Association) an appeal may not be permitted.