Spouse with past criminal record

[turquoise]

My husband's spousal sponsorship application is in process last March 31, 2010 at the Canadian Embassy in Vienna, Austria. He had a past criminal record of criminal abuse of public official & endanger public safety in Hungary 12 years ago and received a sentence of 1 year & 6 months imprisonment. Those 2 offences came from one incident because he didn't stop the car when the police officer said so. He didn't serve the jail time and efforts of finding my husband have been unsuccessful and 5 yrs had passed since the issuing of the seized order thus the court established that the sentence is no longer in effect(as per his hungarian document). Pursuant to section 100 of Hungarian Criminal Code 1. due to an exemption, a convict shall be exempted from the disadvantanges which are attached by a legal rule to a conviction. 2. A person exempted shall be deemed to be of clean criminal record, and he need not give account about a conviction regarding which he has been exempted. When my husband applied for a Hungarian police certificate early this year, it's clean with no mentioned of his past conviction because he's already exempted.
We have a son who is with him for the meantime while I work here in Canada. We've been together for a long time before we got married so we have lots of pictures, bills to show that we have a genuine relationship.
Is exemption of my husband's criminal record means he's rehabilitated?

 

[RobsLuv]

I would advise that you consult with a qualified immigration attorney who can make this determination, and who can advise you as to how to address it in your application.

 

[turquoise]

I already have an immigration attorney and she was the one who submitted the letter to Canadian Embassy stating Section 100 of Hungarian criminal code. Even her cannot say if it'll be positive or not. My husband even gave them 2 recent hungarian police cert (within the country and for use abroad) both are clear. I just want a second opinion because this really stress me a lot emotionally, it's an agony waiting for the decision. Thanks anyway. guess it depends on the immigration officer's discretion now.

 

[RobsLuv]

You're right - it does depend on the assessing officer. Unfortunately we're not in a position to give you assurances, only opinions. Opinions don't really matter much in the end. Hopefully your lawyer did her job and presented the situation in the best possible light. All you can do is try to relax and wait for the outcome.

 

[turquoise]

A spent conviction is a conviction which, under the terms of Rehabilitation of Offenders Act 1974, can be effectively ignored after a specified amount of time. The amount of time for rehabilitation depends on the sentence imposed, not on the offence. This act aims to rehabilitate offenders by not making their past mistakes affect the rest of their lives if they have been on the right side of the law for some time. This means that a person who has spent convictions does not have to disclose the conviction to prospective employers, and employers cannot refuse to employ someone on the basis of spent convictions.
However, you have to tell employers about all your convictions - spent or not spent - if you want to work with children or vulnerable adults or if you are applying for certain professions such as law, health care, pharmacy, senior management posts within certain sectors and employment where matters of national security are involved.
If you have received a prison sentence of more than two and a half years your convictions will never become spent.
The more serious the conviction the longer the period of rehabilitation.
If you were 17 or under when found guilty the rehabilitation period is usually half the time if you were 18 or over. For example, if the sentence imposed was a community service order then for the younger person the period is two and a half years whilst for the person 18 or over it is five years.
Please be aware that the rules regarding the information that police forces can and do disclose differ from the above and spent onvictions, indeed any information that the Chief Constable feels relevant with regards to the reason for the check, can be disclosed.

I think this is the one that refers to my husband's case but I cannot find this under the Canadian law.

Anybody knows?

 

[RobsLuv]

A spent conviction is a conviction which, under the terms of Rehabilitation of Offenders Act 1974, can be effectively ignored after a specified amount of time. The amount of time for rehabilitation depends on the sentence imposed, not on the offence. This act aims to rehabilitate offenders by not making their past mistakes affect the rest of their lives if they have been on the right side of the law for some time. This means that a person who has spent convictions does not have to disclose the conviction to prospective employers, and employers cannot refuse to employ someone on the basis of spent convictions.
However, you have to tell employers about all your convictions - spent or not spent - if you want to work with children or vulnerable adults or if you are applying for certain professions such as law, health care, pharmacy, senior management posts within certain sectors and employment where matters of national security are involved.
If you have received a prison sentence of more than two and a half years your convictions will never become spent.
The more serious the conviction the longer the period of rehabilitation.
If you were 17 or under when found guilty the rehabilitation period is usually half the time if you were 18 or over. For example, if the sentence imposed was a community service order then for the younger person the period is two and a half years whilst for the person 18 or over it is five years.
Please be aware that the rules regarding the information that police forces can and do disclose differ from the above and spent onvictions, indeed any information that the Chief Constable feels relevant with regards to the reason for the check, can be disclosed.

I think this is the one that refers to my husband's case but I cannot find this under the Canadian law.

Anybody knows?

This is all very interesting - but, unfortunately, it has nothing to do with how Immigration Canada assesses criminal inadmissibility. If a person has a foreign conviction, their offence is evaluated based on its equivalent offence in Canada, and this determines how many years must have passed since the satisfaction of all sentences imposed (including fines & probationary periods) before the person can be considered "deemed rehabilitated". How someone actually gets rehabilitated status is another factor - and that is the vague part. It seems that sometimes the officer assessing the PR application is willing to accept the information submitted and make their own decision as to whether an applicant is deemed rehabilitated. More often times they appear to defer the decision to a "higher authority" by refusing the ap, unless the person has applied separately for rehabilitated status and has submitted their certification with the PR ap.

The other part of this is what happens when a person is arrested but not convicted, or when a foreign charge has been "exempted" as you put it. This whole process is very complicated and Immigration Canada has very little tolerance for people who have gotten themselves into trouble with the law. Again, all you can do is trust that your lawyer did her best for you and hope it was enough.

 

[BAAS]

Hi, did you ever find out if the UK Rehabilitation of Offenders Act 1974 applies in Canada? If convictions are spent, do you still need to apply for rehabilitation?

Thanks.

 

[Baloo]

Hi, did you ever find out if the UK Rehabilitation of Offenders Act 1974 applies in Canada? If convictions are spent, do you still need to apply for rehabilitation?

Thanks.

Immigration Canada assesses criminal inadmissibility on its own terms, not the UK Rehabilitation of Offenders Act.

As I mentioned elsewhere, you can be assessed, or of course you can contact a lawyer.

 

[BAAS]

Hi Baloo, thanks for your view, but my question was for Turquoise. I have to say though, I have it in black and white that if a criminal conviction and sentence was incurred in the United Kingdom, your case is assessed under the ROA 1974 in accordance with Burgon........ :-\

 

[Baloo]

Hi Baloo, thanks for your view, but my question was for Turquoise. I have to say though, I have it in black and white that if a criminal conviction and sentence was incurred in the United Kingdom, your case is assessed under the ROA 1974 in accordance with Burgon........ :-\

Please re-read the post from robsluv.
Specifically "This whole process is very complicated and Immigration Canada has very little tolerance for people who have gotten themselves into trouble with the law. "

You need to discuss the fine detail of your case with a lawyer.

 

[BAAS]

Hey Baloo, im genuinely appreciative to you for taking the time to respond to my posts and be sure im not being rude and have no doubt what you say you believe to be true. But, are Robsluv or you yourself from the UK and have you dealt with this? I have a letter in front of me which confirms what I have stated and that this rule is specifically for crimes committed in the UK, which sets it apart from all other countries (except Australia/NZ I think, which has a similar policy). Below is something lifted directly from CIC Australia;

http://www.canadainternational.gc.ca/australia-australie/visas/rehabilitation-readaptation.aspx?lang=eng&view=d

My conviction comes within the provisions of: the NZ Clean Slate Act 2004 / the spent convictions scheme in the Australian State or Territory where I was convicted or I hold a Fiji Certificate of Criminal Rehabilitation. Do I have to declare the conviction – do I still need an admissibility assessment?

Some convictions are considered “spent” or “clean slated” after a period of time has passed. These convictions should still be declared on any application being made for a visa to go to Canada. In cases where the clean slate/spent schemes have been applied, Canada also accepts these cases as spent – and the person is admissible to Canada. There is no need for you to seek an admissibility assessment.



Your thoughts........?

 

[PMM]

Hi

Hey Baloo, im genuinely appreciative to you for taking the time to respond to my posts and be sure im not being rude and have no doubt what you say you believe to be true. But, are Robsluv or you yourself from the UK and have you dealt with this? I have a letter in front of me which confirms what I have stated and that this rule is specifically for crimes committed in the UK, which sets it apart from all other countries (except Australia/NZ I think, which has a similar policy). Below is something lifted directly from CIC Australia;

http://www.canadainternational.gc.ca/australia-australie/visas/rehabilitation-readaptation.aspx?lang=eng&view=d

My conviction comes within the provisions of: the NZ Clean Slate Act 2004 / the spent convictions scheme in the Australian State or Territory where I was convicted or I hold a Fiji Certificate of Criminal Rehabilitation. Do I have to declare the conviction – do I still need an admissibility assessment?

Some convictions are considered “spent” or “clean slated” after a period of time has passed. These convictions should still be declared on any application being made for a visa to go to Canada. In cases where the clean slate/spent schemes have been applied, Canada also accepts these cases as spent – and the person is admissible to Canada. There is no need for you to seek an admissibility assessment.



Your thoughts........?

Whether the conviction is spent or not you still have to declare it. Only if you have received a pardon, but neither the UK or NZ step down or clean slate is a pardon.

 

[Baloo]

Hey Baloo, im genuinely appreciative to you for taking the time to respond to my posts and be sure im not being rude and have no doubt what you say you believe to be true. But, are Robsluv or you yourself from the UK and have you dealt with this? I have a letter in front of me which confirms what I have stated and that this rule is specifically for crimes committed in the UK, which sets it apart from all other countries (except Australia/NZ I think, which has a similar policy). Below is something lifted directly from CIC Australia;

http://www.canadainternational.gc.ca/australia-australie/visas/rehabilitation-readaptation.aspx?lang=eng&view=d

My conviction comes within the provisions of: the NZ Clean Slate Act 2004 / the spent convictions scheme in the Australian State or Territory where I was convicted or I hold a Fiji Certificate of Criminal Rehabilitation. Do I have to declare the conviction – do I still need an admissibility assessment?

Some convictions are considered “spent” or “clean slated” after a period of time has passed. These convictions should still be declared on any application being made for a visa to go to Canada. In cases where the clean slate/spent schemes have been applied, Canada also accepts these cases as spent – and the person is admissible to Canada. There is no need for you to seek an admissibility assessment.



Your thoughts........?

I don't take your comments as rude, we are discussing a subject, nothing more.

Both of Robsluv and I are in Canada.
I am a permanent resident and hold a UK passport.
Yes, I am aware of the UK side of this. Have I had any convictions, no.
However, I have helped quite a few people who have been around the criminal inadmissibility route.

The thing that you need to grasp is that Canada has its own rules. Plenty of people who make the assumption that their own country rules apply, in many cases they do not.

This is a complex area that can be discussed for hours with no resolution, but in the end, each application is on a case by case basis.
Even with legal representation there is still a lot of scope for interpretation.

FWIW there is no point discussing items from Australia, NZ or elsewhere - it may seem crazy, but Canada is a sovereign country and set its own rules

In theory someone could be rehabilitated in the UK after 5 years or less, but in Canada that same offence may be serious enough to warrant exclusion from Canada, and maybe the person would only be allowed Canadian rehabilitation after 10 years. It does not matter if the conviction is spent or not, you have to declare it.

Note that in the UK:
"Criminal Records - A person's offence will still remain on the Police National Computer even after it has become spent - it will not be deleted."

It is possible that a Brit' citizen who wants to visit Canada could state that they have no conviction (under UK law), but as far as Canadian immigration sees it, the Brit' has then misrepresented the truth. That crime is really bad and can end up with even worse consequences.

http://immipedia.ca/Misrepresentation

As I said, we can talk around this for ages, I am not a lawyer, but clearly you really need an immigration lawyer.

 

[BAAS]

Hi, thanks to you both,

Firstly PMM, I do intend to declare my convictions. CIC Australia site states that if convictions are spent "In cases where the clean slate/spent schemes have been applied, Canada also accepts these cases as spent – and the person is admissible to Canada. There is no need for you to seek an admissibility assessment."

Canada accepts my convictions as spent, I am admissible with no need to seek an admissibility assessment.

Therefore, my convictions are recognized as spent and I am admissible and in turn must be deemed rehabilitated and so do not need to apply for rehabilitation?


Hi Baloo,

I understand that Canada has its own rules and I am simply referencing the Canadian High Commission Immigration Section in London (Canadian rules) who state that for offences incurred in the United Kingdom, the case will be assessed under the Rehabilitation of Offenders Act 1974 and that as a result of this Canadian decision to do so, a person when their UK convictions are considered 'spent', ceases to be inadmissible to Canada after the expiry of the statutory British waiting period following the date of conviction.

 

[humpakwatan]

Hi, thanks to you both,

Firstly PMM, I do intend to declare my convictions. CIC Australia site states that if convictions are spent "In cases where the clean slate/spent schemes have been applied, Canada also accepts these cases as spent – and the person is admissible to Canada. There is no need for you to seek an admissibility assessment."

Canada accepts my convictions as spent, I am admissible with no need to seek an admissibility assessment.

Therefore, my convictions are recognized as spent and I am admissible and in turn must be deemed rehabilitated and so do not need to apply for rehabilitation?


Hi Baloo,

I understand that Canada has its own rules and I am simply referencing the Canadian High Commission Immigration Section in London (Canadian rules) who state that for offences incurred in the United Kingdom, the case will be assessed under the Rehabilitation of Offenders Act 1974 and that as a result of this Canadian decision to do so, a person when their UK convictions are considered 'spent', ceases to be inadmissible to Canada after the expiry of the statutory British waiting period following the date of conviction.

You should probably refer to some of the cases with misrepresentation and criminality on the canlii.org with keywords Immigration, misrepresentation and criminal admissibility and see for yourself.

If you have been convicted, even if it is spent you have to tell the immigration otherwise it is considered misrepresentation. The conviction if it is spent will not affect your application once the VO find that it is 5 years old and or spent. If your ACPO police certificate states NO LIVE TRACE that means there was a conviction and it has been stepped down or spent. But this tells the officer that it was there and that if you are saying on your application that you were never convicted it wont be true . People who are caught for this misrepresentation can get a 2 year ban from Canada.