Is the TRP the Canadian Immigration Holy Grail or Holy Hand Grenade? 4 Musts for Getting that Most Mythical of all Immigration Instruments, the Temporary Resident Permit to Enter or Stay in Canada

Is the TRP the Canadian Immigration Holy Grail or Holy Hand Grenade? 4 Musts for Getting that Most Mythical of all Immigration Instruments, the Temporary Resident Permit to Enter or Stay in Canada

Temporary Resident Permits (TRPs) are the crazy glue, the duct tape, the Swiss Army Knife of the Canadian immigration world. Overstayed your TRV and past the point of restoration? Have a little criminal record admissibility problem? Worry not, there’s always the TRP. 

The term TRP is so commonly thrown around, you’d think it was a mini-chocolate bar being given out at Halloween. In reality, getting one can be more like randomly going up to people’s doors in the middle of summer demanding candy. Sure, they might have some. And sure, you might even get some if you ask nicely enough. But you shouldn't expect it just because you shove a pillow case through a front door in their general direction. 

WHAT IRCC SAYS ABOUT GROUNDS FOR ISSUING TRPs

Immigration, Refugees and Citizenship Canada (IRCC) says TRPs respond to “compelling reasons” to enter or remain in Canada where there are “exceptional circumstances to meet Canada’s social, humanitarian and economic commitments while maintaining the health and security of Canadians.” 

So what are those compelling reasons and exceptional circumstances? It’s almost easier to pin down what they’re not. Seeing Niagara Falls from the Canadian side isn’t among them!

To get a TRP, you need to focus on the words “compelling” and “exceptional.” Simply wanting to get married in Canada likewise doesn’t cut it, even if you’ve got a Canadian fiancee. It’s possible to go elsewhere to get married.  The fact of getting married by itself is neither compelling nor exceptional.

HOW TO FIND THE TRP HOLY GRAIL RATHER THAN HOLY HAND GRENADE

To secure the TRP Holy Grail, you’ve got to do the hard-sell. Why are you different? What’s so special about your reason for needing to enter or stay in Canada? Why is that a much better reason than most people’s reasons. 

If you don’t do the hard-sell, your TRP aspirations for the Holy Grail could turn into a Holy Hand Grenade that you fumble. And we all know from at least watching the odd Hollywood movie (or having actually been in the military) what happens to a fumbled hand grenade.

Why the analogy? I’ve seen people plan their entire lives around their certainty of being able to get a TRP. Plan weddings. Buy houses. Enrol children in school. Pack up belonging for an imminent relocation. All equally confident that their little problem will be erased by the TRP immigration Holy Grail. 

When that TRP gets turned down, Holy Grail turns into Holy Hand Grenade as your life plans explode in your face. You could even get banned for life from Canada as a result of a failed TRP if you attempt to present it at a Port of Entry (see 5 Terrible Things that Happen at Canadian Borders), which is a pretty explosive result. 

Rather than being supremely confident in TRP success in making your immigration plans, you should do the opposite and assume you won’t get a TRP. Then, if you do find the Holy Grail, there won’t be any risk that you narrowly averted a Holy Hand Grenade accident. 

TRPs fix status problems, but don’t give you status in and of themselves. Meaning, if you are a spouse wishing to submit a spousal sponsorship notwithstanding a criminal inadmissibility problem, you can still do that without a TRP. You just might need to wait outside Canada during the processing of the application, because there are no TRP compelling reasons and exceptional circumstances to let you wait inside Canada. 

THE 4 MUSTS FOR GETTING THE MYTHICAL TRP HOLY GRAIL

So to find that TRP Holy Grail, you must:

1. show why your situation is exceptional and your reasons for entering or remaining in Canada are compelling;

2. provide convincing proof through documentary evidence of that exceptionality and those reasons;

3. tie that evidence to Canada’s social, humanitarian or economic commitments;

4. offer guarantees that will minimize the risk to the health and security of Canadians of your being in Canada. 

BECAUSE YOU’RE NOT SPECIAL, YOUR REASONS & CIRCUMSTANCES MUST BE

Remember, and repeat after me, “I’m not special.” There, was that so hard? Let’s try it again. “I’m not special.” Keep telling yourself that. 

Because you’re not special, it’s your reasons and circumstances for entry that need to be the special things. So saying how you volunteer five times a day brushing kittens isn’t going to get you a TRP - you aren’t special - but demonstrating what you do is special by being one of the few people in the world who is most qualified to repair special types of water treatment systems that are installed in Canada’s Indigenous communities, and that a community will be without safe drinking water unless you are let into Canada for precisely two weeks in order to repair that system is special. That might win on economic, social and humanitarian grounds.

Likewise a wedding in Canada could be exceptional if your mother whom you haven’t seen for 5 years is now terminally ill, living in Toronto and unable to travel, and thus you plan to hold the wedding in Toronto in the next 6 months so that she can attend. That might win on both the social and humanitarian front. But just including vague promises that this is the plan is NOT going to cut it. 

So, on the wedding front, #1 would you explain those reasons. But #2, you would dump in lots of documentary medical evidence of your mother’s illness, together with the certainty of your wedding plans - receipts from deposits on ceremony and reception venue, sample of the invitation cards that have already been printed, pictures of wedding rings or bridal gown and bridesmaids dresses or anything else that would make this real. Then #3, you explain the law supporting why this is truly consistent with Canada’s social and humanitarian commitments. Finally, #4 you offer some security guarantees to protect Canadians, like:

  • you’ll only be in Canada for one week just for the wedding and events immediately prior to and after it,

  • you won’t drive when you are in Canada (if you have a record involving a driving offence),

  • you won’t drink while you are in Canada (if alcohol was a factor in rendering you inadmissible),

  • you could even restrict your presence in Canada to never leaving the wedding and reception hotel, other than travelling directly to and from the airport. 

The foregoing types of arguments, evidence and conditions can be equally adapted to business entry to Canada, like in the above water treatment repair example. Business entry can be sold as really anything that’s good for Canada’s economy, including training in Canada of workers that a Canadian company is collaborating with overseas.

It all depends on how much you want this. If you really, really want the TRP Holy Grail, then you’ll be willing to make sacrifices. And even willing to risk your plans collapsing, including loosing deposits, if the Government of Canada says no. 

While not 100% of Canadian immigration application processes necessarily need the involvement of a lawyer, TRPs are so tricky that the involvement of legal counsel is highly advisable. That same counsel can then also give you alternatives for how to eventually make it into Canada, even if the TRP is unsuccessful.

Gordon Scott Campbell is a Canadian immigration and citizenship lawyer who especially helps clients with admissibility problems to Canada. He is author of three Canadian criminal law books, served as a Federal Crown Prosecutor for immigration and customs offences, and litigated public law trial and appellate cases as high as the Supreme Court of Canada. Learn more at www.compleximmigration.ca.

5 Terrible Things that Happen at Canadian Borders to Foreigners: #5 Will Shock You

5 Terrible Things that Happen at Canadian Borders to Foreigners: #5 Will Shock You

All of the following nasty results have happened to my clients. Usually prior to retaining me to get them out of the jams they wound up in, after innocently showing up a Canadian Port of Entry (POE).

No Canada Border Services Agency (CBSA) Border Services Officer (BSO) was acting improperly. This was all within their rights under Canada’s Immigration and Refugee Protection Act and Customs Act. BSOs have a huge amount of discretion over how they deal with people who are seeking entry to Canada and are neither citizens nor permanent residents, the only two classes who generally have an absolute right to enter. 

Many of us cross borders so often in our increasingly globalized world, that we’ve become complacent. We forget that many borders used to tougher to get across. And there’s recently a rethickening of borders as more countries demand traveller information prior to arrival, arm their border officials, and impose harsher punishments for violations of immigration and customs regulations. 

The following real examples, with some personal details changed to protect privacy, prove that the last place you want to get near is a border crossing (including air and sea ports of entry) if you can help it. They aren’t the place to be fixing immigration legal issues. Those need to be cleared up long before getting close to a border.

1. Be Refused Entry & Excluded for 12 Months from Canada

Show up at the border as a foreigner with a U-Haul Truck packed with all your worldly goods, and your four foreigner children in tow, saying you’re coming to stay with your girlfriend in Canada - who it’s true you’ve visited dozens of times before, but minus the truck - and not only will the BSOs refuse you entry, but you’ll get excluded from Canada for 12 months. Or more. They’ll even issue an exclusion notice to your two year old. 

Canada demands guarantees that anyone who isn’t a citizen or permanent resident will leave Canada at the end of their status period. Usually in 6 months if admitted as a normal visitor. Maybe longer with a work or study permit, or upon special request. But permissible stays could also be shorter. 

Wondering how best to convince the CBSA and IRCC that you’ll leave Canada as required so that they’ll let you in in the first place? Call an immigration lawyer. Even if you’re stuck at the border. The CBSA will let you do that. 

2. Be Arrested & Charged Because You Forgot About the Gun/Dope/Money in the Trunk

Think coming to Canada for lunch would be fun because you’ve never been here? But honestly forget the 9mm with ammunition properly locked in your trunk because you always drive around with it? You risk not only Customs Act seizures and charges, but also criminal charges that could lead to jail time. 

Even things that are perfectly legal to drive around with on either side of Canada’s borders take on a magical nasty quality when you try to move them through the border forcefield. Guns, drugs and money seem to be the most common things to forget in your vehicle or luggage that could land you in jail. 

It’s easy to forget stuff. The CBSA might believe you honestly forgot whatever you are found to have, and you’ll still get charged. Sanitizing your vehicle or luggage before arriving at a border crossing is the only solution. 

If you do get caught, being VERY, VERY nice and forthright might avoid criminal charges, and only lead to a seizure and Customs Act charges. If you’re stopped by police inside Canada, the advice of say nothing is usually the opposite to being stopped at a border where confessing your sins might work. Maybe. 

Again, ask to call a customs or criminal lawyer before saying anything if you’re found in possession of any serious contraband. They’ll let you do that.

3. Have Your Canadian Status Revoked Because the CBSA Thinks You’re Lying

Flagpoling used to be all the rage. Literally doing a loop from where the Canadian flag flies on one side of the border to where the United States of America flag flies on the other, and back again, saying a quick hi to the US Homeland Security officer as you turn around and head back to see a CBSA officer.

An older version of flagpoling was called the Buffalo Shuffle for foreigners from Southern Ontario who needed to leave Canada to update their status, but wanted to go to Canada’s closest foreign mission. The Canadian consulate in Buffalo, New York (until it was closed) was indeed pretty convenient to Toronto.

But the huge risk you’re taking in physically leaving Canada in order to update your status is that the CBSA BSO you report back to when attempting to reenter might not like what she sees or hears. She might doubt some of your paperwork. Might doubt some of the things you’ve been up to in Canada. 

She might accuse you of illegal work. Or illegal studies. Or of overstaying your status. 

She has the power (sometimes with management consultation) to revoke whatever Canadian status documents you already have. On the spot. And to effectively strand you in the no man’s land between the US and Canada. 

The same can also happen at a Canadian airport POE. Maybe you’ve popped back home overseas for a week to visit your ill parents. And then quickly fly back to Canada, confident you’re going to be let back in, as you’ve got that study permit in hand. 

You never thought your documents would be seized at the POE and you’d be put back on the next plane to where you just arrived from. Your study or work plans wrecked. Perhaps over suspicions that you were working too many hours while studying in Canada. Or had dropped out of your program. If you hadn’t popped out of Canada, the CBSA would likely never have flagged you for that. And if you did get flagged inside Canada, you would have had many more options available to fight to stay in Canada.

Ask to call an immigration lawyer before agreeing to do or say anything in response to accusations of breaching your terms of entry into Canada. They’ll let you do that. 

4. Be Arrested & Locked Up in Prison with Real Criminals Because Your Identity or Status Can’t Be Verified

I had this happen to a Canadian citizen client of mine! But one who had never obtained a passport, had a right to enter the US, and was used to crossing and recrossing the border. 

The client even had ID. But one day out of the blue the CBSA not only decided they doubted his right to enter Canada. They further decided it was necessary to lock him up in prison while they tried to figure out if he was was who he said he was, and if he had status.

It took me a week to organize a detention review hearing to get him out. 

Ask to call an immigration lawyer before they haul you off to jail if the CBSA claims your identity or status can’t be verified. They’ll let you do that. 

5. Be Referred for an Admissibility Hearing and Be Banned for Life From Canada

Sure you’re doing everything the right way to get into Canada, with a nice thick wad of professionally prepared paperwork to present to the CBSA upon your arrival at a land POE? Hire a law firm to draft a Temporary Residence Permit (TRP) application because of a single non-violent criminal conviction in your past life? Present that TRP at the POE, fully disclosing your conviction, even though the CBSA would probably have not have otherwise known about the conviction because of where it happened?

Oh, and did I mentioned you’ve got a Canadian wife? And Canadian children? And a likely Canadian job waiting for your? And all you want to do is settle down to the quiet life near Vancouver?

Think the worst that can happen is you simply get turned back from the border, to try again later? Maybe with a slightly better pitch? Or after a little more time?

How about being banned for life from Canada? Did you think that result possible?

Not at all because of your conviction, from which you’ll be eligible to apply for full criminal rehabilitation in Canada in a couple of years anyway. It’s because you show up in Canada in an inadmissible state.

Once you’re at the POE, you’re already in Canada. POEs don’t perfectly straddle the Canada-U.S. border, where your feet remain in the U.S., and you talk through a window to a BSO in Canada (though I’ve heard of a library straddling the Vermont-Quebec border that is set up that way). Rather, you step over the magic line, and talk to someone. But once you’re over that line, it’s too late.

Not everyone showing up at a POE with an admissibility problem gets referred to what’s known as an Admissibility Hearing. Remember what I said about lots of discretion among BSOs? But it happened to my client, so it can happen to you (no, I didn’t tell him to show up, he hired me after that).

And a finding of inadmissibility at an Admissibility Hearing means a deportation order (bizarrely even you’re not even in Canada), which means a lifetime ban from returning. There are ways to attempt to fix that ban, but it can be a big pain.

The moral of the story? Stay away from borders and inland POEs unless you’re certain all your paperwork is in order, and you have an almost guaranteed chance of entry.

If you’re already inside Canada, even with a status problem it can take the CBSA/IRCC years to remove you. During that time, you might be able to fix your status problem. Leave Canada for 5 minutes (literally), and you might have the reentry door shut in your face. 

Some POEs are kinder than others to people showing up seeking admission. It shouldn’t be that way, but it is. Generally, you’re better off trying your luck at an air POE, like the Pearson Toronto International Airport, than at a land border crossing. The airport BSOs are likely keener to keep everyone moving, and senior CBSA mangers are more likely to be present who can use greater discretion to resolve entry issues. 

But if you don’t already have a valid Electronic Travel Authorization (ETA), it’s unlikely you’d be permitted to board a flight to get to a Canadian inland airport POE. Your alternative is getting legal advice on which land POEs might be most forgiving.

Back to that story moral, I again urge you to do everything in your power to sort out your admission to Canada BEFORE you show up at the border. If you’re overseas, submit an application for entry to whichever Canadian consulate, embassy or High Commission provides those services for your part of the word. If you’re in Canada, use whichever mailing address or online form you need for inland Canada applications.

Some still take their chances at a PEO, because they don’t want to wait a few days, or weeks, or months for an IRCC response to an advance application submitted from a distance. But IRCC response times are improving, likely because all received information is now digitized and then distributed to processing agents around the world, rather than letting stacks of applications pile up on one Embassy’s desk, while another Embassy has no work. 

If you have any doubt about your admissibility to Canada, you should hire a lawyer, regardless of your plans for advance application or taking your chances at a POE. We see client after client submit the same application they did themselves over and over again to IRCC, keep getting the same refusal, fiddle a bit with the application, and then get another refusal.

No, you don’t absolutely need a lawyer to get into Canada. But definitely if you’ve already been refused once, I suggest you don’t try again without professional help. And try to stay away from those borders until you have some assurances Canada’s actually going to let you in.

Gordon S. Campbell is an immigration, customs and criminal lawyer based in Ontario, helping those seeking to enter or remain in Canada from anywhere in the world. He has served as legal counsel to the Canada Border Services Agency and Immigration, Refugees and Citizenship Canada. Learn more at www.compleximmigration.ca.

Top 5 Things Every Immigrant Needs to Know About Canadian Immigration & Family Law When Relationships Fail

Top 5 Things Every Immigrant Needs to Know About Canadian Immigration & Family Law When Relationships Fail

Since Canada now accepts more immigrants than any other country on earth, it’s simply human nature that some of them are eventually going to run into family law problems. Sometimes family problems only happen decades after immigration. At other times they occur before immigration paperwork is even finalized. What every immigrant needs to realize is that family law problems can equally be immigration law problems if immigration status in Canada hasn’t been finalized, family assets are spread around the world, spouses decide they are going to live in different countries post-separation, or there is no agreement over where any children will live.

I practice both immigration and family law. Here are my top 5 tips for what every immigrant or spouse of an immigrant to Canada needs to know about both family and immigration law when a relationship fails. 

1. ONCE YOU ARE A PERMANENT RESIDENT OF CANADA A RELATIONSHIP BREAKDOWN WON’T THREATEN YOUR STATUS

Even if you were sponsored as a spouse to come to Canada, and your spouse made a pledge to support you for a certain period, the fact that you split from your spouse during that guarantee period does not in any way imperil Permanent Residency (PR) that you’ve already been granted. You do not need to be concerned by spousal threats made in an attempt to intimidate you which claim that if you leave the relationship you’ll lose your children or your immigration status. 

The sponsoring spouse's support obligations will continue even if you split, but there is no obligation to continue to live together during an immigration sponsoring spouse guarantee period. There was a short-lived attempt by a prior government to impose such an obligation, but that direction has now been reversed in recognition that it might promote continuation of living in an abusive relationship. 

If you’re a PR, you’re a PR. So long as you uphold your residency and other obligations under the PR, your ex-spouse won’t be able to influence government decision making on your immigration status including whether you should eventually be granted citizenship. 

2. IF YOUR SPOUSE YANKS YOUR SPONSORSHIP PRIOR TO YOU RECEIVING YOUR PERMANENT RESIDENCY YOU HAVE A PROBLEM

Because of the lengthy time spousal sponsorships can take to process by Immigration, Refugees and Citizenship Canada (often a range of 4 months to two years), it’s only natural some relationships are going to break down during that period. I'm frequently contacted by distraught spouses who have had their sponsorship yanked, some who have been living in Canada for a long time, others who had arranged their entire futures premised on an imminent move to Canada. What’s to be done? 

You can’t force a spouse who is no longer a spouse to continue to sponsor you. To do so could in fact be an offence under the Immigration and Refugee Protection Act, and at the very least could trigger misrepresentation allegations. If your relationship breaks up, you need to immediately seek the advice of both an immigration lawyer for Canada and a family lawyer for wherever you are currently residing. 

Even as a sponsoring spouse, you’ll need advice on your obligations to terminate the sponsorship. If there is a prospect of reconciliation, you might not need to immediately halt the sponsorship process, but you should immediately seek out legal advice as both sponsor and sponsoree could be liable for continuing a sham process. 

There may be ways a previously sponsored spouse could continue to live in Canada, notwithstanding the revocation of the sponsorship. While various other measures should be attempted prior to a Humanitarian and Compassionate Grounds application to the Minister, an H & C could especially work if there are Canadian born children of the relationship. Even if you have not yet come to Canada as a sponsored spouse, there could be other ways to independently immigrate. Talk to an immigration lawyer; every situation is unique.

3. TRY TO AVOID GOING TO ANY CONTESTED FAMILY COURT

As a lawyer primarily practicing as a litigator, going to court is my business. So trust me when I say court is the last place you want to take your family problems if you can at all avoid it. Court should be a last resort, not a first resort, especially if there are potentially transnational family law issues in your case which could greatly increase complexity and cost.

Within reason, splitting spouses can voluntarily agree to just about anything when it comes to child custody, division of property, child support and spousal support (the Big 4 of family law). If you want a Canadian court to codify your separation agreement into a family law order (or at least to later enforce an agreement), you may be a bit more restricted on what you can voluntarily agree to. But certainly uneven splits of custody, property and support are entirely feasible (preferably with each party having independent legal advice), with child support being the issue courts will pay the most attention to since they want to ensure children are adequately provided for, regardless of the mutual intentions of the parties. 

There’s nothing stopping you under Canadian law from initially concluding a separation agreement voluntarily by negotiation, and then going to court later if circumstances materially change. But be aware that the spouse seeking to vary the voluntary agreement’s terms will bear the burden in demonstrating change of circumstances, that courts are unlikely to interfere if less than 6 months have passed since the signing of the settlement, and trying to undo a division of property can be almost impossible. It is child custody and child or spousal support that are most prone to later variation. 

4. IF YOU MUST GO TO FAMILY COURT PICK THE JURISDICTION WHERE MOST OF YOUR CHILDREN, PROPERTY AND THE OTHER SPOUSE ARE LOCATED

I recognize that for immigrants - especially more recent immigrants - children, property and spouses may not all be located in one country. They might not even be located in only two countries. But as a splitting immigrant spouse, or a spouse splitting from an immigrant, you need to conduct a very careful assessment of where you’re going to get the most judicial bang for your buck before starting court proceedings. 

While some spouses might think forum shopping is the way to go, seeking to pick the jurisdiction whose law is most favourable to their position, that approach might be setting yourself up for expensive failure if you’re unable to enforce any order you get out of that jurisdiction in the jurisdiction where your spouse, children or property are actually located. Some mistakenly think enforcing a foreign order is a rubber stamp process, whereas in reality it can be like starting litigation all over again in the new jurisdiction. Yes, your foreign order might be mildly influential on worldwide results, but courts have a habit of being very territorial, insisting on applying the legal principles in force in their own jurisdiction, rather than simply adopted what a foreign court found to be just. 

So even if you get a foreign order awarding you custody of the children, and spousal support, and splitting your matrimonial property in a way that is quite favourable to you, if you get the order in a place where none of your children, spouse or property are located, it may be a pyrrhic victory. Of course if some of your property is there, but not your children, then you might need to assess relative priorities in engaging in incremental family litigation that first secures some property rights, and later pursues custody issues. You might need to create a grid of pros and cons for each jurisdiction, and then reach out to family lawyers in each of those jurisdictions for them to give you assessments of your prospects of success in those locations. 

5. BE VERY CAUTIOUS OF SELF-HELP FAMILY REMEDIES ALTERING THE STATUS QUO

Relationship breakdown is fundamentally about family change. Some immigrant spouses may decide as part of that change that they prefer to return to their country to origin, or to a third country, rather than remain in Canada. Even where both spouses are immigrants, one might be keener than the other on Canada, leading one to insist upon staying in Canada, and the other wanting to leave. The flip side can also happen, where an immigration hasn’t completed, leaving one spouse including children outside Canada when the relationship ends. 

Canadian family courts (as well as the family courts of some other jurisdictions) are very keen on maintaining what’s known as the status quo pending either the voluntary agreement of the spouses, or an enforceable order of the court. This status quo means that children continue living and attending school where they’ve been for a settled period of time prior to the spousal split, and that family property is preserved. 

One spouse rushing off to alter that status quo - by disposing of family assets, or even fleeting the country with the children - can be of great concern to Canadian courts, even if there isn’t a formal court order in place preserving that status quo. Courts may even go so far as to issue emergency ex parte (without notice) orders against a spouse where there is credible evidence that the status quo is being dramatically altered. And the status quo altering spouse may be so negatively perceived by the courts in future proceedings, that it becomes very difficult for that spouse to sufficiently redeem him or herself in the court’s eyes so as to receive equitable treatment. 

So the message is spouses shouldn’t be fleeing the Canada with their children who are well established in Canada, or attempting to grab their children from foreign jurisdictions to bring them within the physical jurisdiction of Canada. Likewise, spouses shouldn't be liquidating all their domestic or foreign family assets on a self-help basis. If you think my points here seem overly obvious, I challenge you to go online and look at the litany of cases in Canadian courts where this is exactly what has happened.

The unfortunate upshot of family breakdown for immigrants or spouses of immigrants may be that each spouse requires both immigration lawyer advice and family lawyer advice. Family lawyers in more than one jurisdiction could even be needed. If voluntary agreement on settlement is possible, overall legal costs don’t need to rise to significantly beyond those that would be typical in a purely Canada-based  separation. But if court action breaks out, spouses may need to prepare for a multiplicity of transnational proceedings, and especially evaluate in which jurisdiction their legal resources are best employed taking into account respective locations of the spouses, family assets and children. 

Gordon S. Campbell practices immigration law across Canada and family law throughout Ontario. He has litigated transnational cases for the Department of Justice Canada including representing foreign states, and collaborated on UN, APEC, OECD, World Bank, and G8/G20 projects including serving as a delegate for Canada. Learn more about the family practice at nofearfamilylaw.com and immigration practice at compleximmigration.ca.

Been Told By Canada That You're Criminally Inadmissible or Worried that You Might Be? Top 5 Things You Need to Know About Criminal Rehabilitation & Temporary Residence Permits for Canada

Been Told By Canada That You're Criminally Inadmissible or Worried that You Might Be? Top 5 Things You Need to Know About Criminal Rehabilitation & Temporary Residence Permits for Canada

Criminal inadmissibility to Canada is majorly trending right now in the immigration law world. Why? Two three letter acronyms: ETA and DUI. 

The still relatively recent introduction of mandatory Electronic Travel Authorizations (ETAs) for nationals of about 50 visa-exempt countries travelling to Canada didn’t magically make any more of them criminally inadmissible than before, but it flagged admissibility problems upfront for the Canada Border Services Agency (CBSA) whereas very few of the visa-exempt in the past were ever questioned about criminality upon arrival in Canada. It’s understandably a shock to those who have previously visited Canada many times for business, family or tourism to now be told they’re no longer welcome. 

The very recent upping of Impaired Driving (DUI) offence penalties under Canada’s Criminal Code to a maximum of 10 years imprisonment means an offence is now considered “serious criminality” under the Immigration and Refugee Protection Act, and thus no longer qualifies for “deemed rehabilitation” 10 years post-sentence completion and has even triggered criminal inadmissibility problems for Permanent Residents who might acquire a DUI conviction. Now, a criminal rehabilitation application will be required every time for a DUI, and won’t even be possible until 5 years have passed from the end of sentence.

But there are ways to fix all of this. As a lawyer practicing both immigration law and criminal law in Canada for the past 24 years, here are my top 5 things you need to know to minimize the chances you’ll be flagged as criminally inadmissible, or fix inadmissibility if you are ever called out on it. 

1. Obtain all Your Court Documents Prior to Applying for an ETA or Showing Up at the Border

As soon as you click “YES” to that ever committed, arrested, charged or convicted of a criminal offence question in Canada's online ETA form, you’re going to receive back a request to upload court documents. If you take too long to upload, Canada is going to reject your ETA. So be ready in advance for the request.

If you are in the United States and planning to show up at a Canadian land border crossing where an ETA isn’t a requirement, you should still plan to have court records in hand. You should also obtain a legal opinion in advance from a Canadian immigration lawyer on your admissibility, and carry that with you. Don’t run the risk of showing up at the border and being deemed inadmissible on the spot, as then you might be banned for life from Canada for having attempted to enter while being inadmissible. If inadmissible, the best cure is a paper/electronic application from a distance prior to attempting entry.

Most don’t realize when you receive a request for court documents that Canada doesn’t want just one scrap of paper with some cryptic acronym entires in the national language of the place of arrest, charge or conviction detailing a person’s criminal record (or lack thereof). Canada ideally wants EVERYTHING to do with your entire criminal (or not so criminal) past. All documents relating to your involvement with the police, the prosecution service, the courts, and the probation service are needed.

For the police, your record of arrest, and copies of all the evidence they gathered from you and others, including copies of all statements and other evidence. For the prosecution, copies of all prosecutor notes, submissions and disclosure to the defence. For the courts, copies of all transcripts of oral submissions or testimony, all exhibits files, and all judgments by a judge. For probation, copies of your exact sentence, including proof that it was completed in full, including the payment of any fine. 

You’re also going to need an extensive cover letter in which you explain the circumstances of the arrest, charge and outcome, a listing by the numbers of exactly what documents are being attached, and an explanation of every last document you can squeeze out of your court and prosecution system. All officially translated into English or French.

If it’s just an arrest that didn’t lead to charges, you may not have any documents. But you’ll still need to explain that in a cover letter, including why charges were never laid. 

If it’s a charge but no conviction, you’ll need all the court records to prove that result: (a) the charging document; (b) the document explaining how the charge was disposed of; (c) other documents from the prosecution or court explaining the history of the charge; (d) a description of the exact offence under the national law of the place the charge was laid in.

If it’s a conviction, you’ll need similar documents to those mentioned for a charge, but also (a) a document explaining what you were and weren’t convicted of (as you might have been convicted of an alternate offence); (b) a document confirming the sentence; (c) a document confirming the sentence has been completed (including that all fines have been paid). 

Some of these documents won’t be easy to obtain. For clients we help with this process, we usually retain a local law firm in the country of the charge/conviction that will be best placed to shake down the court and prosecution for every last document. If we’re lucky, a client may have used a criminal defence lawyer to originally deal with the charge, in which case we start by just requesting a copy of that lawyer’s file. 

You might be able to write to the court/prosecution yourself, or send a relative/friend to the court, in order to obtain documents. But often court documents are best obtained in person. And sometimes courts are more reluctant to share information with non-lawyers. 

You shouldn’t approach the request for documents as a minimalist exercise in providing as little as possible, figuring the Government of Canada will just ask for more later. Instead, you need to overwhelm the government with completeness the first time round. If there are huge numbers of documents where official translation costs could become prohibitive, some selection among the documents might be possible to narrow down the absolutely require range, but you are best off seeking legal advice on that selection rather than guessing at what Canada might or might not require.

2. Understand that a Crim Rehab/TRP Application is Not a Simple, Quick or Cheap Process

Should despite your explanations Canada find you to be criminally inadmissible, you still have options to gain entry. However we find it’s a common misconception that an application to Canada for criminal rehabilitation or a Temporary Residence Permit (TRP)(sometimes used when it’s too early post-sentence to apply for rehabilitation) is somehow a simple, quick and cheap process. To stand any reasonable chance of success, you must understand that the process is complex, time consuming, and resource intensive.

Just because Canada posts a few forms and basic instructions online doesn’t mean that by filling out the bare minimum of those forms, you’re somehow guaranteed success. Entry to Canada for foreigners is a privilege, not a right. Canada is especially sensitive over letting people with criminal records come to visit, study or work. So if you have any kind of criminal past - even one which didn’t lead to a conviction - you need to be prepared for a major undertaking to be able to enter Canada.

Thinking you can throw together a few pieces of paper and draft a brief sob story in a cover letter where you mainly explain how none of it was really your fault, you’re actually innocent, and you’d really like to see Niagara Falls from the Canadian side is only going to guarantee failure. 

Be prepared to wait anywhere from 4 months to 24 months for a review and approval or denial of your criminal rehabilitation or temporary residence permit application.

3. You Need a Legal Opinion on Criminal Equivalency

No foreign criminal offence will match up perfectly with an identical Canadian criminal offence. It’s possible your foreign criminal offence isn’t even a criminal offence in Canada, in which case you have no admissibility problem. It’s also possible that your foreign regulatory offence (like impaired driving in some Australian states) is a serious criminal offence in Canada, in which case you have a major admissibility problem. It’s also possible that your minor foreign criminal offence is considered a major criminal offence in Canada, or your major foreign criminal offence is considered a minor criminal offence in Canada, which will affect whether you could qualify for “deemed rehabilitation” 10 years post-sentence ending, meaning no formal rehabilitation application would be required.

Only a lawyer knowledgeable in criminal law can render a reliable opinion on criminal offence equivalency. You might only need a lawyer in Canada for an opinion, or that lawyer might need to collaborate with a criminal lawyer in the place of your conviction to come to a fully informed opinion. Transnational criminal offence equivalency drives all immigration criminal inadmissibility and rehabilitation analysis in Canada.

4. You Need to Demonstrate You’re a New Man/Woman

Although criminal rehabilitation to enter Canada has lots of technical requirements, what is never explicitly stated anywhere in the government’s instructions is the “new man/woman” requirement. Meaning, just because time has passed from your last offence doesn’t mean you’re “cured” of your criminal tendencies. So you need to sell to the Canadian government that you’re a new man/woman, and thus pose no threat to Canada and Canadians.

Selling your rehabilitation is best done through deeds, not words. So demonstrate all the volunteer work you’re doing now that you’ve turned your life around. Demonstrate the educational activities you’ve undertaken recently. Demonstrate how you have stopped drinking or using drugs, and how they played a role in your earlier offence. You can explain the deeds in a cover letter, but also prove them through supporting documents written by third parties: certificates of volunteer hours, educational diplomas, medical reports, addiction program completion certificates.

5. For TRPs, you need a VERY Good Reason, and Possibly Limitations

If less than 5 years have passed since you completed your sentence, you won’t be eligible to apply for criminal rehabilitation in Canada. And even if you are eligible to apply, given how long it can take to process a rehabilitation application you might also have an urgent need to enter or remain in Canada. The Temporary Residence Permit is the potential solution to these issues.

What most don’t realize is just how difficult it can be to obtain a TRP, because you need a very, very compelling reason for Canada to let you off the hook on the no crim rehab prior to 5 years post-sentence completion rule. Generally speaking, coming to Canada on holiday because you’ve always wanted to see the Rockies sucks as a reason. Seeing your girlfriend is a terrible reason. Even seeing your long lost mother is going to fail.

To get a TRP, you usually need a reason that is strongly in Canada’s national interests, or has very compelling humanitarian and compassionate justification. And with either, there will still be lots of strings attached, so you should ask for as narrow of a visitation window, with limiting conditions, as is possible.

Professional athletes, artists, and business people are most likely to qualify on the national interest basis, but only with compelling supporting evidence and strict conditions. For example, one criminally inadmissible professional athlete reputedly gained entry with a TRP to play in a major game in Toronto - a benefit to Canada - solely on the basis of only being in Canada for 24 hours, and being guarded by private security operators the whole time - not to protect him from Canadians, but to protect Canadians from him.

A child or parent who is dying in Canada might constitute sufficient humanitarian and compassionate grounds to secure a TRP, but the proposed visit should be brief, the evidence that the applicant would leave Canada immediately after the visit must be strong, and the medical evidence demonstrating imminency of death must likewise be compelling.

Criminal inadmissibility to Canada is entirely fixable. But Canada treats a criminal past for any prospective temporary or permanent resident as a big thing. Thus big things require big responses.

Gordon S. Campbell is a Canadian immigration & citizenship lawyer who helps foreign nationals and permanent residents overcome criminal inadmissibility issues. He is the author of three criminal law books, practiced transnational criminal law with the Department of Justice Canada, and has litigated public law cases up to the level of the Supreme Court of Canada.

TRUE LIES IN IMMIGRATION: HOW TO AVOID BEING CALLED OUT ON A MISREPRESENTATION & BANNED FOR LIFE FROM CANADA

TRUE LIES IN IMMIGRATION: HOW TO AVOID BEING CALLED OUT ON A MISREPRESENTATION & BANNED FOR LIFE FROM CANADA

It’s a quirk of immigration law that you can be completely honest, and yet be found to be lying. Immigration, Refugees & Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA) are increasingly expanding their pre-arrival questioning of people coming to Canada to visit, study, work or permanently immigrate through requirements for Electronic Travel Authorizations (ETAs) for visa-exempt nationals, expanding the scope of questions on all their permanent or temporary residence forms (especially “criminality” and “medical” questions), and comparing every word and number you’ve input on past IRCC/CBSA forms to what you’ve recorded on new forms. Is it any wonder more and more people are getting flagged for true lies? 

So you said you lived at 123 Oak Street from May 2000 to October 2001 on your most recent work permit application? But on an application six years ago you said it was 132 Oak Street from October 2000 to November 2001? You could face being banned from Canada for life (or more commonly for 5 years) on a misrepresentation just out of that discrepancy! Seriously. 

Which of us remembers precisely where we lived (or worked) between which months for years back, especially if you've move a lot? Well the IRCC/CBSA expects that of you.

As a personal test, I pulled some of my past curriculum vitae from the darkest recesses of computer hard drives and USB flash drives. And guess what? My job titles weren’t consistent among the CVs. My locations of work or residences weren’t consistent. Even my provinces lived in were a bit off on timing.

I was solid on education details, since I guess those were sufficient life events for me to get programs, institutions and places down right time after time. But when it came to less important life details, before setting up my own law firm I lived and worked in a lot of places, so what i’d think of as minor inconsistencies crept in. Fortunately I’m a Canadian citizen, and no one was scrutinizing and comparing all those CVs of years gone by to call me out as a liar. 

IRCC/CBSA are expanding their data gathering practices for those seeking to come to Canada, then using minor discrepancies from past applications or existing intelligence databases effectively as lie detector tests against applicants. The consequences of a minor information detail slip can be so dramatic! 

So what should you do?

Save Copies of Past Worldwide Immigration Applications & Results

Save all copies of immigration applications you make anywhere in the world, throughout your entire lifetime. You’re at high risk of what you say in those applications later coming back to haunt you if you change your story by even the most minor detail.

While inconsistent past Canadian applications are at greatest risk of being called out by IRCC/CBSA, the US and Canada share lots of data and could compare the information you provided on an old US application with the information you’re now providing on a Canadian application. There’s even potential for comparison to immigration information provided to other countries, though it will likely be limited to Canada’s closest allies.

Saving the results of past immigration applications is just as important as saving copies of the applications themselves. I frequently see people forget about a past refusal in another country. Perhaps you applied to come to the United States, were refused, fixed the issue, reapplied, and were granted entry. It would be easy for that refusal to slip your mind since the end result was positive. But I’m seeing potential clients getting called out on that very issue. Canada is very interested in knowing about past immigration refusals, and the underlying reasons, regardless of where they happened.

Every Word and Number Count

Be very careful about every word and number written into an immigration application. They all matter. Don’t guess about past life details, rather seek out confirming documents for residence, study and work history, even when it’s a pain to do so. If you’re really not sure about a detail, include a cover letter in your immigration application explaining the uncertainty.

The cover letter is the secret weapon to immigration success that most self-reps don’t know about since nowhere in IRCC materials are you urged to include one (instead a checklist is required). Many don’t know you can stick a detailed cover letter in front of any immigration or citizenship application, explaining particular challenges you are facing in providing precise and detailed information. A cover letter gives you more credibility, and minimizes the risk IRCC/CBSA will jump to unfounded conclusions based on your answers.

Give Liberal Interpretation to Wording of all Immigration Questions

I continually have potential clients approach me saying things like “well, I answered no, because a lawyer in my own country told me that an expungement meant that offence never even happened.” Except, the law that you’re being judged by is the law of Canada, not the law where the offence happened. And “expungement” is a concept unknown to Canadian law.

So if you’re asked a question like “have you ever committed, been arrested for, charged with or convicted of any criminal offence in any country or territory,” think about how honest it is going to look if you later claim that while technically you were arrested, you were charged, and you were convicted, but you answered “NO” because you thought that was the “true” answer. Better to accidentally answer “YES” if the answer really is “NO” (which the IRCC/CBSA can determine based on its own analysis - though you really should have your own lawyer provide input on the point so that your circumstances are viewed as favourably as possible).

But there are limits to liberal interpretation. You don’t need to disclose non-criminal offences. But the standard for criminal classification is Canadian law, not the law of where you reside. You definitely may need advice from a Canadian lawyer to resolve questions like an impaired driving conviction in your own country is only a highway traffic offence, which as a class aren’t criminal, but could it be criminal in Canada (it is)?

Fess Up to Inconsistencies

Unlike the Canada Revenue Agency at tax time where lots of Canadian may get a bit creative on their tax return answers because the risk of a full blown audit for most is relatively low and the consequences of minor discrepancies are just interest and moderate financial penalties, in immigration and citizenship essentially everyone gets picked for an audit. So if you’ve got some past inconsistencies in applications that need to be ironed out in a new application, do it up front in your cover letter. Don’t try to hide them. In immigration and citizenship (perhaps as in much of life), the “lie” is often far worse than the underlying details.

Don’t Try to Fix a Misrep Mess Yourself

The consequences for non-citizens of Canada of having been found to have made a misrepresentation on an immigration or citizenship application are so dire - usually at least a five year ban, and sometimes a lifetime ban requiring a Ministerial Authorization to Return - that it’s something you should never try to fix yourself. You might not always need a lawyer to make a simple immigration application, but you definitely need one if get called out on a misrep. Then it’s time to immediately go into damage control mode; you’ll be best served with a professional on your side for that. 

Gordon S. Campbell is a Canadian immigration & citizenship lawyer who helps foreign nationals and permanent residents overcome or minimize the consequences of allegations of misrepresentation. He previously served as a Federal Crown Prosecutor for immigration matters, and has litigated public law cases up to the level of the Supreme Court of Canada.

5 Things Americans Don’t Know About Immigration Spousal Sponsorship to Canada But Need to Know Before Applying

5 Things Americans Don’t Know About Immigration Spousal Sponsorship to Canada But Need to Know Before Applying

1. You Never Know How Long Your Sponsorship Application Might Take to Be Approved

I’ve seen some spousal sponsorship applications from Americans approved in just four months, while others take over two years. Sometimes this is just variable administrative backlog. Other times it’s because of some peculiar quirk in the application that requires greater government scrutiny. Don’t plan your future personal and professional lives as a couple around some magic guessed at date that Permanent Resident (PR) status in Canada will be granted.

I’ve seen couples plan their finances or children or educations around a magic date that they believe the American will become a Canadian PR, so that they can both work, study and live indefinitely in Canada, with public health care and all the other benefits that come along with being Canadian, only to have those plans dashed because of processing delays. Couples need a backup plan when arranging immigration. What if a PR is never granted? Will you still be a couple?

I’ve seen totally legitimate spousal relationships be questioned by Immigration, Refugees and Citizenship Canada (IRCC), leading to 10 year litigation battles to get the relationship recognized. Some of these battles do ultimately succeed. But they take time. Don’t put your life as a couple permanently on hold, betting on a particular immigration outcome of what is a discretionary process by government. 

An immigration lawyer can advise you if it will be quicker to apply for sponsorship from inside Canada, than through the United States, though IRCC’s increasing electronic moving around of workload among its officers regardless of where they are posted in the world is eroding the great difference that used to exist in processing times depending on point of application. The key to a speedy approval is to get your application as perfect as possible the first time around, so that the whole thing doesn’t get sent back as incomplete requiring going to the back of the line. 

2. Common Law Sponsorship Applications Are Always Challenging & Don’t Even Attempt a Conjugal Relationship Application

My experience with common law spousal sponsorships is that they often can lead to double the approval time as compared to married couples. The legitimacy of your relationship is much more likely to be questioned. You’re much more likely to be called to an interview. This is true even if you already have multiple children together. 

It seems to be a frustrating quirk of traditional society that a single piece of paper signifying a lawful marriage is much better proof to IRCC of a solid relationship than are children and perhaps years of co-habitation. But that’s just the way it is. 

I don’t run marriage prep courses (I was forced to take one prior to my own marriage, but at 25 years and counting maybe it did so some good), and definitely don’t offer relationship counselling. However as an immigration lawyer I always tell my couple clients who want to be a couple together forever in Canada: get married! If you’ve got some huge moral opposition to marriage, fair enough, stick with the common law route. But from most of my unmarried couple clients I don’t get much push back. For them marriage just hasn’t been a priority, but they aren’t anti-marriage. Which I why I explain marriage may be the quickest way for them to be together in Canada. 

Because a common law spousal sponsorship application requires 12 months of continuous co-habitation, you’re open to challenge by the iRCC on any break in that co-habitation, even if you’ve got a good reason for the break. With marriage, you don’t have to have even lived for a day together. Arranged marriages where the couple has spent very little time together are just fine. The key is the marriage.

Some of my clients have seen the Conjugal Relationship spousal sponsorship category listed online, and believe it to be a cure all to their lack of marriage, and lack of co-habitation. It isn’t, and is almost guaranteed to fail. I’ve not yet dug into its policy origins, but suspect the conjugal relationship category exists at least in part as a hold over from when same sex couples could not get married prior to immigration, and weren’t able to qualify as common law for whatever reason (perhaps because one couldn’t get a visa for Canada). In theory some of these Conjugal Relationship applications might be granted, but personally I’ve never seen one succeed. My solution remains: get married. 

3. A Single Criminal Conviction Can Render You Criminally Inadmissible for a Sponsorship Application

It doesn’t matter how far it might be in your past. Or how minor it might have seemed at the time. If you’ve got a criminal conviction anywhere in the United States (or anywhere else), Canada might find you to be criminally inadmissible, which can wreck your prospects for spousal sponsorship. 

Very, very, very important is to not accidentally lie on your sponsorship application about past convictions, because then you can be hit with the double whammy of criminal inadmissibility and a misrepresentation finding. It doesn’t matter if you have a pardon, or expungement, or whatever term they use where the conviction happened. Canada’s questions on sponsorship applications now ask if you’ve ever been arrested or ever been charged; you aren’t just asked about convictions. 

Criminal rehabilitation may be possible for you depending on when the conviction happened and its equivalent severity under Canadian law (not under the US Federal or state law contravened). You will need to plan that out how to address admissibility problems long before you submit your spousal sponsorship application.

Be proactive, not reactive, as it can take a lot of time to track down all the state and federal documents you might need from the US to seek rehabilitation in Canada, including digging into some very old dusty courthouse files. The best proactive approach is to produce every last detail of court records, not just a computer printout of the conviction.

4. Work Permits Can Be Very Hard To Obtain Until Almost the End of the Spousal Sponsorship Process 

While you’ll see there’s talk on the IRCC’s website about an open work permit being available to the sponsored spouse after approval in principle of the spousal sponsorship application, sometimes this approval in principle comes only a month or two at most before final approval when you’d get a work permit anyway. So don’t think that it could take only a few months to be working in Canada after you’ve submitted your initial application.

As the sponsored American spouse, you need to either plan to stay working in the United States while the sponsorship application is underway should you need that income to support yourself (and perhaps your Canadian spouse), or figure out how to forego any income in Canada if here on visitor status and waiting out the approval process perhaps for quite a long time, or get a work permit in Canada that is available to foreign workers, perhaps through a NAFTA visa if you are in a high skilled profession since Americans and Mexicans remains in a favoured position to work in Canada over most other nationalities because of the North American Free Trade Agreement. 

I’ve seen couples bet their lives on both of them being able to quickly work at any job in Canada, perhaps because the Canadian is pregnant and needs the financial and moral support of the American in Canada, or because they both really want to live in the same place but each is only qualified to work in their home country and they can’t afford to support themselves as a couple without a double income. You may need to make a choice between only one of you working for a year or two, or living apart for the same period of time (and don’t try a common law application if you’re doing that) while approval in principle of the sponsorship application and an open work permit is achieved. 

5. It’s Safest During the Sponsorship Process to Never Leave Canada

It doesn’t matter that Americans have always had favoured status in entering Canada. A single Border Service Officer (BSO) has the right to refuse you entry to Canada if you’re not already a permanent resident or citizen. Entry is a privilege. Not a right. Even if you’ve got paperwork authorizing entry, a BSO can cancel it. Just like that.

So say you’ve been in Canada for months living with your beloved, and decide just to pop back across the US border for the day to pick up a few groceries - especially those yummy American breakfast cereals you miss and have been scouring Canadian grocery stores for in vain. Imagine the shock when you get back to the Canadian border and they tell you you aren’t welcome!

You plead with them. You cry a bit. All you’ve got with you is your wallet, a somewhat worn sweater, and a borrowed vehicle. Your whole life is in Canada now. 

Well, you might get stuck waiting out the next year in the US while your spousal sponsorship application works its way through the system. Seriously.

This trap is especially likely if you’ve been crossing and recrossing the border too many times in recent months. The CBSA start to not like letting Americans in as normal visitors after too many crossings, even if you prove it’s just to visit your one and only. They start to demand proof of your financial support. Dig into whether you’ve got anything in your background they don’t like. They might even accuse you of illegal work in Canada. The sorts of things non-Americans need to put up with all the time when they apply to visas to come to Canada. 

So don’t get caught out. If you’re an American with a Canadian spouse, and want to wait out the spousal sponsorship process - however long it may take - in that mythical land of the Great White North, don’t leave Canada for any destination unless you absolutely have to. And if you do leave, don’t bet on being let back in. 

Yes, it’s likely you’ll probably be okay upon your return to Canada. But I’ve had multiple clients stuck in exactly this kind of excluded limbo situation after merely a day’s shopping trip to those southern malls that really are oh so much better than the retail experiences of Canada. After a big fight, we’re often able to get them back into Canada. But why risk it. There’s always amazon.ca, after all. 

Gordon S. Campbell is a Canadian immigration lawyer who helps Americans immigrate to Canada as permanent residents as well as for work and study purposes. He especially works with Americans to overcome criminal or medical inadmissibility issues for entry to Canada. 

What Every Permanent Resident of Canada Needs to Know About Canada's New Impaired Driving Laws & How PR Status Can Be Lost

What Every Permanent Resident of Canada Needs to Know About Canada's New Impaired Driving Laws & How PR Status Can Be Lost

There are likely well over a million permanent residents in Canada. All of them now face potential deportation from Canada upon conviction for a single offence for which they almost certainly won’t go to jail after Parliament bumped the maximum punishment for impaired driving from five to ten years. Parliament never intended this result. But sometimes the law is all about unintended consequences. Here’s what you need to know about the risks of this legal change and how to manage them if you have PR or other non-citizen status in Canada.

Parliament’s Legislative Intent for Impaired Driving

For a first offence of impaired driving, Parliament intended a combination of deterrence, denunciation and rehabilitation measures that it hoped would reduce impaired driving by imposing mandatory minimum fines which ensured those convicted received a criminal record and at least a one year driving prohibition. And provinces have been permitted to soften the blow a bit to promote rehabilitation through offenders getting licences back earlier upon taking courses and installing interlock devices on vehicles.

Parliament’s goals have been met, as rates of impaired driving across Canada have been dropping over a multi-decade period.

We could debate the morals of banning large numbers of people from Canada for impaired driving if that had been Parliament’s intent. But it wasn’t. It was only after marihuana law reform had solidified in its final draft stages that it became apparent what the impaired driving reforms would do to non-citizens. And so far the government hasn’t moved to fix the situation, because as we all know government can move very slowly.

When the maximum penalty for impaired driving was five years imprisonment, I’d never heard of anyone receiving anything close to that unless it was in combination with other much more serious offences - like manslaughter - which had their own much higher penalties. Everyone convicted for the first time of impaired driving, and nothing else, receives a fine (at least in all the jurisdictions I’ve practiced in). The only question is how much. On subsequent offences, mandatory minimum jail sentences start to kick in. But we’re talking days and months. Not years. So booting the top sentence from 5 years to 10 years arguably did nothing other than potentially harm permanent residents.

Impaired Penalties Have Changed Little Over Time

Canada’s drinking and driving laws since their first enactment in 1921 have changed a lot less than many people think. Initially the mandatory minimum penalty was seven days imprisonment on a first offence, 30 days imprisonment for a second offence, and 90 days for a third offence, which is extremely similar to the current setup other than the first offence having being dropped to a fine as minimum punishment, and the third offence being bumped up to a 120 days.

There have been lots of technical tweaks to drinking and driving laws since 1921, particularly to accommodate the introduction of the breathalyzer which first showed up earlier than most people would assume in 1954. But the fundamental core outcomes of deterrence, denunciation and rehabilitation have not changed. Until now, when it effectively became an anti-immigrant offence.

Impaired Driving is the Second Most Common Criminal Offence in Canada

Charges of impaired driving constitute over 10 % of all criminal court dockets, making it the second most common offence in Canada after theft. There are over 70,000 charges of impaired driving annually in Canada (using 2016 figures). 

But unlike theft where an offender can receive a “discharge” which means there is a finding of guilt, but no “conviction,” impaired driving has a mandatory minimum fine attached to it guaranteeing a criminal record. A discharge isn’t a possible outcome. So the consequences for permanent residents (and others) may be dire.

The Huge Immigration Impact of Impaired Driving Amendments

A Government of Canada press release from 22 October 2018 perhaps best sums up the serious consequences of the impaired driving offence changes for PRs (and other non-Citizens):

If you commit an impaired driving or a cannabis-related crime, you could face a fine, criminal charges or jail. However, we may also find you inadmissible to Canada for serious criminality. It doesn’t matter if the crime happened inside or outside Canada. This means:

  • permanent residents may lose their status and have to leave the country

  • temporary residents (including visitors, international students and foreign workers) may not be able to enter or stay in Canada

  • refugee claimants may not be eligible to have their claim referred for a refugee hearing

Appeal rights for permanent residents and foreign nationals, including sponsored members of the family class, could also be affected.

https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/impaired-driving-cannabis-penalties-affect-immigration-status.html

This is all very, very bad.

Why Impaired Driving Amendments Raise Fairness Concerns For Immigrants

The cutoff for immigration “serious criminality” is a maximum available punishment of 10 years or more, so suddenly all non-citizens can be caught in a trap set by this second most common offence in Canada. Now you might be saying, “hey, it can’t happen to me!” Or, “yeah, they deserve it!” But there are lots of permanent residents who may be convicted of very serious offences for which they do significant jail time - say 2 years imprisonment for $2 million in income tax evasion - who won’t have any risk of deportation because the maximum penalty for tax evasion is five years imprisonment under the Income Tax Act.

So you could get deported for a $1500 fine offence, but don’t get deported after two years imprisonment. Make sense? Well, unfortunately that’s just the way it is now. So what to be done?

Top 4 Tips for an Impaired Driving Immigration Defence Plan

So if you’re a permanent resident (or have other Canadian immigration status short of citizenship) who is facing an impaired driving charge, or have a family member or friend in that situation, what should be done? As a lawyer practicing both immigration and criminal defence law, my suggestions are:

  1. NEVER PLEAD GUILTY to impaired driving if you’re not a citizen and need to retain your right to be in Canada. Fighting it out to trial means you have a chance of acquittal - even if a small chance - and the penalty you receive after trial on a first offence is usually almost identical to the penalty you would have received on a plea. They’ll usually both be fines.

    Just the fine after trial will be a bit higher (as in hundreds of dollars higher, not thousands). An early plea might get you your licence back a bit sooner if you complete a provincial course and install an ignition interlock device on your vehicle, but that’s irrelevant if you’ve been deported back to your country of origin. 

  2. HIRE A CRIMINAL DEFENCE LAWYER. Hiring a lawyer to professionally defend you for an offence like this won’t bankrupt you . This will likely only be about a one day trial. So total work by a lawyer might be about three days. Maybe four. This won’t be a multi-week fraud or murder trial that would test the financial resources of even the wealthiest accused.

    Virtually all criminal defence lawyers offer block flat fees, so you’ll know up front what the defence will cost. Absolutely don’t try to run a trial yourself. Winning a DUI trial is hard enough even for experienced lawyers. 

  3. IF YOU’RE CONVICTED, HIRE AN IMMIGRATION LAWYER. If you can afford it, hire an immigration lawyer prior to conviction to collaborate with you criminal lawyer. While not everyone who is convicted of an offence for which immigration criminal inadmissibility can be triggered will receive a letter from the CBSA/IRCC, you’ve got to prepare in advance for this outcome since you might not have long to respond when you do get a letter. You might have immigration law arguments available to you to fight back against removal from Canada.

  4. HAVE A BACKUP PLAN. It’s possible that despite all your efforts, you might still lose your permanent residency or other status in Canada after an impaired conviction. But this doesn’t mean that all your future involvement with Canada is hopeless. You may still have options of seeking special permission to return to Canada in the interim (especially if you can demonstrate compelling grounds), and of applying for criminal rehabilitation in 5 years. 

Gordon S. Campbell practices immigration law throughout Canada and criminal defence law throughout Ontario. He’s served as legal counsel to the CBSA, IRCC, Justice Canada, and is author of The Investigator’s Legal Handbook series of books. Learn more at compleximmigration.ca and defenceeast.com.

How to Make a Successful Refugee Claim in Canada: Top 5 Things You Need to Know

How to Make a Successful Refugee Claim in Canada: Top 5 Things You Need to Know

I’m thankful this holiday season that Canada has among the highest refugee claim acceptance rates in the world, at a bit over 50% (looking at multi-year averages). Now don’t get too smug fellow Canadians, we’ve got an extremely low percentage of refugees to population ratio because we’re so difficult to get to (Lebanon currently has the highest ratio in the world). But for those who do manage to get here, and make claims, and run refugee hearings, the odds are (slightly) in their favour of being believed and accepted. 

By comparison, the United States historically has a bit over a 30% claim acceptance rate. And Japan’s refugee acceptance rate is a stunning 0.1% (20 people accepted out of 20,000 claims in 2017). 

While a majority of states have signed onto the 1951 United Nations Convention on the Status Refugees, the authorities in each country who process refugee claims clearly have dramatically differing views on who qualifies as having “a well-founded fear of being persecuted by reasons of race, religion, nationality, membership of a particular social group or political opinion ... and ... unable ... to avail himself of the protection” of his or her home country, which is the definition of a refugee set out in Article 1 of the Convention. 

So if you or someone you know is thinking of making a refugee claim in Canada, or is part way through the process of having a claim considered, here are five of my top tips for success as a lawyer who represents claimants before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) in Ottawa, Montreal and Toronto. 

1. You Can Only Make a Direct Refugee Claim From Inside Canada

I’m often contacted through the Internet by people wanting to assist others who are overseas in making refugee claims in Canada. Unfortunately there’s nothing I can do until those people are physically inside Canada. 

If you’re outside Canada, you can work with the United Nations High Commissioner for Refugees (UNHCR), establish your credentials as a refugee, and ask that you be considered for resettlement in Canada. But you can’t directly make a Canadian refugee claim from overseas. So you can’t show up at a Canadian embassy. And you can’t mail in forms from abroad. 

Being physically inside Canada in order to make a direct refugee claim is just the way the system works. 

Though for some of those overseas who are effectively refugees, they might have other Canadian immigration options that can be dealt with from abroad. Temporary residence in Canada as workers or students. Or perhaps even permanent residence through one of the many programs the Government of Canada and its provinces run. Being a refugee doesn’t preclude you from other application options. But having education (preferably to the level of a Masters degree) or experience in an in-demand occupation, good English or French skills (and ideally knowledge of both), and being of a younger age may all be necessary to qualify. 

2. You Need to Demonstrate Objective Fear of Persecution in the Future if You Were to Return

This means you can’t just show fear in the past. You need to present evidence of how things are now, and how they will be if you return. So you may need to reach out to those still in your country to origin to gather evidence on current conditions. Or at least provide compelling third party documents to support the basis for your fear for the future.

And the persecution must be personal to you, not just a generalized risk. So you need to present concrete examples of personal events and threats which happened, and possibly continue to happen from a distance. Don’t be general. Get very specific. 

3. You Need to Offer Lots of Detail in you BOC

The Basis of Claim (BOC) document that every refugee claimant is required to complete at the time a claim is submitted to the Government of Canada is THE key document to the entire refugee claim process. It should not be treated as a brief introduction to the claim, with more detail to be offered later in subsequent documents and oral testimony at a refugee hearing. 

The IRB will want to know why you are now offering all sorts of details and examples at your refugee hearing, if you didn’t mention them in your BOC. Even though the honest answer might be that you were only provided with a few days to complete the BOC, and you’ve now had lots more time since then to think of additional information, the IRB may doubt the credibility of the new information. So try to ensure it all (or at least most of it) shows up in the original BOC. Lots of time needs to be spent preparing the document.

You can attach lots of extra pages to a BOC. You aren’t limited to the space provided in the forms. 

4. You Need to Support Your Claim with any and all Documents

Even though you know you’re telling the truth. And others believe you. That doesn’t mean the IRB is going to believe you. 

The IRB is used to hearing people lie. All the time. Again and again. And there is no magic technology that helps Board members distinguish between the liars and the truth tellers. In fact, trying to tell who is and isn’t lying solely from physical presentation is a sure fire way to be culturally biased, since every culture has its own unique ways of story telling and presenting information to officials. In some cultures eye contact might be acceptable; in others it won’t be. 

Thus the best way to be believed is to present documents which independently and objectively prove your case. You should present documents that are personal to you, and also documents that generally address the issue in question in your home country. So if the question is persecution due to gender and forced marriage, do you have emails/Facebook messages/text messages or letters concerning marriage arrangements? Do you have documents concerning the laws or practices in your country concerning those issues? 

Testimony from third parties can also be of help here, and often takes the form of written sworn affidavits, which can be sworn in your home country. 

All documents need to be officially translated into English or French in order for the IRB Board members to read them. But if you have last minute documents in your own language, and have requested an interpreter, some Board members may permit the interpreter to read short passages of the documents to confirm their content. 

While people fleeing their home with only the clothing on their backs might not flee with any documents, you need to make extensive efforts after your arrival in Canada to obtain whatever documents you can. For example, a huge issue at IRB hearings is proof of country of origin, and demands that a document be produced to show where you were born. While this might practically be very difficult to obtain, you should still consider if there is any kind of documentation - including testimony from community members - which might help establish your origins. 

5. You Need to be Prepared to Defend Your Story at Your Refugee Hearing Before the RPD of the IRB

Your refugee hearing before the Refugee Protection Division of the IRB is like a mini-trial before a judge in a court of law. Most hearings last between two and three hours. You should be prepared with good answers to lots of questions posed by the Board members deciding your case.

The refugee hearing is quite minimalist compared to a normal court trial. There is only one official present - the Board member - who presses the record button on the audio recorder, brings in his or her own documents, and asks all the questions. There usually isn’t a representative from the Minister there to ask questions - any submissions are made in advance by the Minister in writing. Your lawyer is also permitted to ask questions, but only after the Board is finished its questioning.

Be prepared for extensive questioning by the Board member. Be prepared to be challenged on your story. Be prepared for minute contradictions between your BOC and your story at the hearing to be pointed out to you, and explanations demanded. Questioning is one of the only ways a Board member can attempt to sort out truth from lies. And through questioning a Board member may even help you in articulating a well-founded fear of persecution. But don’t depend on the Board member to ask your the right questions. Be prepared in advance with lots of detail in your story. 

The most common mistake I see claimants make at refugee hearings when relating their stories is not giving details. Or getting stuck in vague generalizations. 

The Board need to hear the names, the dates, the places, and the minutiae of every experience, conversation and event that is relevant to your claim, It’s only by providing those details that your story will sound truthful. Take your time. There’s no rush. The Board really wants to know all the details. The more detail, the better to establishing your claim as a refugee in Canada.

Gordon Scott Campbell is an immigration, citizenship and refugee lawyer practicing throughout Canada, who has previously served as legal counsel to the IRCC and CBSA and argued public law cases as high as the Supreme Court of Canada. Learn more at compleximmigration.ca.

THE SECRET OF HOW TO SAVE LOTS OF MONEY ON IMMIGRATING TO CANADA

THE SECRET OF HOW TO SAVE LOTS OF MONEY ON IMMIGRATING TO CANADA

How much does immigrating to Canada cost, either temporarily or on a permanent basis? It certainly isn’t cheap. Government fees are infinitesimal compared to all the other costs. 

But the hidden cost most people don’t count on is the price of failure. Of having planned and rearranged your life solely towards that immigration goal, only to have the goal destroyed not just for a month or a year, but possibly for a lifetime because of the way the Government of Canada interpreted your immigration application and supporting documents. 

These destroyed dreams are by no means rare. We receive calls and emails every day from clients throughout Canada and around the world who are distraught over receiving rejections from Immigration, Refugees and Citizenship Canada due to a host of reasons ranging from the wrong type of application, using the wrong forms, missing documents, or worst of all being accused of lying in the application or being inadmissible to Canada, and consequentially facing a potential lifetime ban from the country. Even when these problems are fixable, they can be very expensive to fix - especially if court action is needed. 

But there’s a special secret to saving lots of money on immigrating to Canada. Like lots of the best secrets, it’s sitting out there right in the open for all to see. But people don’t recognize it. It works like Doctor Who’s Tardis is supposed to work (if it wasn’t broken), blending into the background. 

I didn’t used to know the secret myself. I practiced law for years without ever seeing it. Or hearing about it. It’s only in the last few years, when I’ve started to help more and more immigrants, that the secret has smacked me on the side of the head. And what is it, you ask? 

"HIRE AN IMMIGRATION LAWYER. And be careful about who you hire.”

WHY IS IT STILL A SECRET?

Believe it or not, revealing the “secret" isn’t some self-promoting money grab on my part. Or the part of the other immigration lawyers I know. I find for the most part they’re a pretty self-effacing collegial bunch. It's an area of law that people enter because they want to help others (like criminal law), not because they want to get rich. 

So why then am I sharing the secret with you? Because of the misery I see people suffer on a daily basis because they didn’t know about “the secret” (to be clear, we’re not talking about the bestselling The Secret book, which at 30 million copies sold clearly is no longer anyone’s secret).

These miserable people I encounter weren’t at all trying to be cheap. They’re people who if their water pipes broke in their basement they’d immediately call a plumbing professional to fix them. But they honestly believed - a belief that may be encouraged by the government - that they didn’t need a lawyer for temporary or permanent immigration to Canada.

In figuring out what they needed to do to immigrate, they saw there were a few online forms. There was an instruction guide. Maybe they even paid someone in their community a few hundreds dollars to help fill out the forms. Perhaps even the same person they pay to help with their taxes. 

And the results? Catastrophic!

SO HOW BAD CAN IT GET?

A wife or husband banned for life from Canada because of what is claimed to be a “misrepresentation” due to one box rather than another being checked on one of many forms of a spousal sponsorship application. A student whose longterm study plans are destroyed because the proposed educational program on the study permit application is determined to be “inappropriate.” A software engineer whose dreams of working in Canada are dashed because the wrong National Occupational Classification (NOC) code was used on his work permit application. 

WHY DOES SPENDING LEAD TO SAVING?

And so what’s this all got to do about saving money? The secret is that an immigration lawyer’s fees represent at most a few percent of your annual expenses or earnings in Canada, or the cost of your permanent relocation here, and the services they provide could save you many, many times the amount of money you are spending on legal fees. Don’t believe me? Let’s do the math.

THE SECRET MATH OF STUDY PERMITS WITH IMMIGRATION LAWYERS 

So what’s the math like for adding an immigration lawyer’s fees into the overall mix of international post-secondary education annual costs in Canada? Let’s use the figures for some real schools from the costs posted on their websites (end 2018).

For the University of Toronto (where I went): $68,911 annual undergraduate cost including tuition, residence (at Trinity College, where I went), meals, texbooks and incidentals. 

Or let’s take a community college, like George Brown College (where my wife studied after she graduated at U of T): approximately $26,000 annual costs, including $13,520 base tuition fee for diploma (non-degree) programs. 

Or, let’s go outside of Ontario to a Quebec school, like the McGill Faculty of Law (where I also went): $42,325.66 annual tuition - not including accommodation, food or other expenses - we’ll conservatively call that another $1500/month for 8 months (Montreal certainly remains cheaper to live in than Toronto), so $57,325.66 total

Thus ranging from a low of $26,000 per academic year for community college programs, to a high of almost $70,000 for top university degree programs, these are big numbers for what international students are expected to be spending in Canada every year.

And by comparison, the cost of an immigration lawyer to secure a study permit? About $2,500 plus disbursements. Or about 10 % of the community college annual cost, and under 5% of the university annual costs. Over a four year program basis, this would amount to a cost increase of only 1% to 2.5% of overall education costs. 


THE SECRET MATH OF WORK PERMITS WITH IMMIGRATION LAWYERS

So what about working in Canada? How do immigration lawyer fess figure as a percentage of total annual salary to be earned? Let’s take two examples. 

Software engineers make an average of $90,000 a year in Canada. Farm managers make an average of $48,000 per year. Work permits for foreigners are typically available for a year, and can often be renewed for another one to two years, depending on the program being applied under. So the Software engineer permit could be worth $270,000 and the farm manager permit $144,000. 

The cost of an immigration lawyer helping with the work permit: again about $2500, or in other words under 3% of the software engineer annual salary, and a bit over 5% of the annual salary for the farm manager. 

Other types of employment-related immigration legal services can cost more, like Labour Market Impact Assessments or Intra-Company Transfers, but these are paid by employers in order to create positions for foreign workers in Canada. And even those higher costs could be considered a pittance compared to a business lost productivity and profits due to not being able to find Canadian workers. 

THE SECRET MATH OF PERMANENT RESIDENCY WITH IMMIGRATION LAWYERS

Permanent residency math can be a bit trickier. Here you are both spending and making money on the Canadian dream. But you if just look at it from the spending perspective of selling all of your possessions, travelling with your family perhaps half-way round the world, needing to reacquire all the possessions you just sold - like home, car, personal items - and generally spending considerable time and resources becoming established in Canada.

It’s hard to know with precision how much that permanent relocation is going to cost, but it would seem at least $60,000 is a fair estimate when you consider potential costs of selling a home, selling vehicles with depreciation (because it isn’t worth importing them due to safety regulations), selling and buying new furniture or hiring a sea container to ship personal goods, flight costs for the entire family, and educational and job search transitional costs.

Really, you could spend a whole lot more, but I base this low end estimate in part on the very unscientific data of how much it cost my family to simply move from Halifax to Vancouver (a distance of 6050 kilometres, in case you were wondering), once all costs had been taken into account. And that was within the same country!

Here permanent residency immigration legal services cost a bit more than temporary study or work permits, because a lot more effort is required, often over a one to two year period. But your costs still might only be in the $5500 plus disbursements range. Thus the lawyer cost adds less than 10% to the total permanent residency costs. 

IMMIGRATION LEGAL SERVICES BY THE FINAL NUMBERS

Now you might be thinking, how do these immigration lawyers actually “save” me money? If I just do the immigration application myself, or pay someone a few hundred dollars to do it for me, and I fail, I won’t be out all that money on fees and tuition. Or on moving. I’ll just stay put. 

But the cases I personally see every day have involved a huge opportunity cost when failures happen. People who have invested lots back home in education or work or family plans with the goal of coming to Canada, only to see all of that washed away, often for very minor, stupid reasons. 

It’s true immigration lawyers can’t guarantee results. In fact, you should run the other way from anyone who does offer a guarantee; that’s a sign they don’t know what they are talking about. But immigration lawyers can maximize prospects for success. In some ways, they’re like an insurance policy. Something you hope you don’t really need, but which will help you out if things go wrong - like if the Government of Canada comes back questioning the information you provided, and demanding you respond within seven days!

So do the math for yourself. Is that insurance worth an increase of between 1% to 10% in your costs?  It doesn’t need to be a secret anymore.

Gordon S. Campbell is an immigration and citizenship lawyer practicing throughout Canada who has served as legal counsel to the IRCC and CBSA, and argued public law cases as high of the Supreme Court of Canada. 

Citizenship Law in Canada: (Almost) Everything You Need to Know in 500 Words

Citizenship Law in Canada: (Almost) Everything You Need to Know in 500 Words

Since my (almost) everything you need to know about Canadian immigration law in 500 words post was so popular, I thought I'd follow it up with a companion citizenship law post.

Don't make the mistake of thinking just because the Citizenship Act is so much slimmer than the Immigration and Refugee Protection Act, that citizenship law in Canada is somehow simpler than immigration law. If anything, citizenship is more complex and more is at stake because you may need to dig through a patchwork of shifting repealed or amended legislation dating back to 1947, and people may be very well established in Canada by the time they run into citizenship problems. 

But there are a few core principles one can pull from the historic fog which can be a great aid in figuring out any citizenship conundrum. Here's my take on Canadian citizenship law in 500 words.

1. IF YOU WERE BORN IN CANADA YOU’VE GOT IT MADE

Canada confers citizenship merely by being born in Canada. Birthright citizenship is being eroded elsewhere, like in Ireland which changed its laws in 2005 to require a "genuine link to Ireland."

Birthright citizenship can't be revoked, so you're good for life so long as you don't explicitly renounce by sending in paperwork to the Government of Canada. Merely taking an oath of other citizenship to a country that doesn't recognize dual citizens will not void your Canadian citizenship. 

2. DESCENDANTS OF CANADIANS MAY ALSO BE CANADIAN

Canada also recognizes citizenship for children of Canadians who are born outside Canada, though year of birth is as important as place of birth, as at various times foreign births needed to be registered with a Canadian consulate (which almost no one did), or children needed to claim citizenship by 28 years of age (which most didn't realize was required). Since 2009 (based on birth date) there is an absolute prohibition on second generation citizenship (children born outside Canada of children born outside Canada) acquiring citizenship by descent, with very limited exceptions. 

Previously, second (or subsequent) generation citizenship was possible, but any ancestor claimed through must at least have been a "British Subject" in 1947 (the year the first Canadian Citizenship Act came into force). So don’t think that because your great-great-great-great grandmother was born in Winnipeg, and moved to Mississippi when she was two years old, that you’re a Canadian.

3. PERMANENT RESIDENTS MUST DEVELOP CITIZENSHIP STRATEGIES UPON RECEIVING PR

Because Canada is increasingly challenging PR card holder over their right to citizenship or even to maintain their PR, PRs need to develop a citizenship (and PR maintenance) plan as soon as they land that meticulously tracks their days in Canada through documentary proof, like passport stamps, airline ticket, and credit card receipts. To either gain citizenship or maintain a PR there are usually two core requirements: 

a. a minimum period of residency in Canada (currently 3 years out of last 5 years for citizenship, and 2 out of 5 years for PR);

b. not becoming inadmissible (usually through criminality). 

Citizenship will usually have a third core component:

c. minimum language and knowledge skills (subject to testing).

4. CITIZENSHIP CAN BE REVOKED FOR MISREPRESENTATION

Even after you obtain citizenship, the government is now going after an increasing number of people to revoke citizenship based on “misrepresentations” on citizenship applications. Coming clean before being flagged should be considered. With some luck, a voluntary disclosure might earn humanitarian and compassionate points sufficient to stay in Canada.

5. APPEAL ROUTES EXIST FOR CITIZENSHIP

A denial of citizenship is usually appealed to the Citizenship Commission. If you lose there or don't have an appeal route there (just because the government makes a decision against you, doesn’t mean you get an automatic right of appeal), seeking leave to bring a judicial review to the Federal Court may be your only option. Be aware JRs can have very short leave filing limitation periods.

Immigration Law in Canada: (Almost) Everything You Need to Know in 500 Words

Immigration Law in Canada: (Almost) Everything You Need to Know in 500 Words

 

Lawyers like words. And have a reputation for being wordy. My published law books are about 250,000 words each! But I believe it’s possible to condense an area of law down to 500 words for (almost) everything you need to know. That’s no more than a short magazine article. Here’s my top 500 words on immigration law in Canada. 

1. KNOW YOUR STATUS

There are four immigration classes of people in Canada: Citizens, Permanent Residents, Temporary Residents, and those with No Status. It’s possible to slide up and down through the classes, sort of like social mobility, by applying for different status and meeting technical requirements. The higher your class, the harder it is to slide down. The lower your class, the harder it is to pull yourself up. 

2. GUARD YOUR STATUS

It’s very important to do whatever the law requires you to do to retain your immigration status, because you’re at huge risk of being kicked out of Canada if you lose all status. If you’ve got 182 days in Canada as a Visitor, make sure you renew before 183 days. If your study permit doesn’t let you work, make sure you don’t do anything that might be construed as work - even volunteering. 

3. AVOID MISREPRESENTATIONS

Making a “misrepresentation" to the Government of Canada is probably the biggest common immigration sin, leading to the most dire consequences. It’s far better to come clean over past immigration indiscretions - overstaying a visitor visa, illegally working, being convicted of a criminal offence - than lying about them when asked on a form or by an officer. It may be possible to absolve yourself of many types of indiscretions if you ask really nicely and get lucky. But actual misrepresentations are rarely forgiven, and could get your citizenship revoked. A misrepresentation can even be accidental. 

4. AVOID APPLICATION ERRORS

The government focusses on the most minor of inconsistencies, discrepancies and errors in immigration applications. Photo size off by a millimetre: rejection! Documents professionally translated but not accompanied by precisely the right certification affidavit: rejection! Listed all your nine brothers and sisters, but left off a step-brother because you don’t know where he lives and you ran out of space on the form: rejection and possible allegations of misrepresentation!

5. PROCESSING TIMES VARY GREATLY

How greatly? Try from one day to five years! Processing speed depends on where you apply, when you apply, what you apply for and who is applying. So before applying, consider all those factors to determine your fastest route. And if the process seems to be taking a ridiculously long time, consider a government nudge, and in the worst cases consider a Federal Court mandamus judicial review application to expedite things. 

6. FIND OUT WHY YOU FAILED

An Access to Information Act or Privacy Act request could obtain internal government notes better explaining why your application was rejected, so that you can fix the issues on a resubmission. 

7. CHALLENGE WACKY DECISIONS

Sometimes government decisions are just wacky. You don’t need to put up with them. But get a lawyer to challenge them. Don’t try to do it yourself or you could dig yourself into an even bigger hole. Decisions might be challengeable at the Immigration and Refugee Board or before the Federal Court, in part on grounds of violation of procedural fairness and natural justice. 

And if you don't think that's 500 words on the nose, you can take it up with wordcounter.net

Gordon S. Campbell is an immigration and citizenship lawyer practicing throughout Canada who has served as legal counsel to the IRCC and CBSA, and argued public law cases as high of the Supreme Court of Canada. 

 

THE IMMIGRATION & CITIZENSHIP LAW REPORT CBA 2018 CONFERENCE ISSUE

THE IMMIGRATION & CITIZENSHIP LAW REPORT CBA 2018 CONFERENCE ISSUE

THE CANADIAN BAR ASSOCIATION IMMIGRATION LAW 2018 CONFERENCE ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation & IRCC policy. Edited by Gordon S. Campbell, Barrister; compleximmigration.ca. 

This month we delve into the unwritten insider tips that you only hear at live conference immigration law panels. I’ve attended a lot of panels in different area of law over the years, and some have been real yawners. But the CBA National Immigration Law Section's annual conference is the best place in the world to find out the real scoop on what goes on behind the closed doors of the Canadian immigration and citizenship application review world. Only at these conferences will senior government mangers from the CBSA, IRCC, and IRB as well as immigration lawyers from private practice and the Department of Justice give you the real goods. The following are summary highlights of selected panel comments from the conference that may be useful in day to day practice.

DEALING WITH PORT OF ENTRY ISSUES (ACCORDING TO THE CBSA)

There is no right to counsel at a Port of Entry if a person is only being examined for the purposes of determining their admissibility to Canada, but there will be a right to counsel if that person is "detained." 

An "enforcement flag" within CBSA's data systems will usually result in the referral of a person to secondary examination upon every entry into Canada. Border Services Officers have discretion to modify enforcement flags upon request, though they might choose to not exercise that discretion.

Information on immigration documents issued by the CBSA that does not match the personal information in the entry passport of a person constitutes an error that must be fixed. Errors can be (1) fixed immediately if a person is still at the port of entry, (2) fixed inland or at another port of entry, but only if that office has the required secure paper to reissue the document, (3) fixed by completing a Request to Amend Record of Landings, Confirmation of Permanent Residence or Valid Temporary Residence Documents and sending it to the CBSA Operations Support Centre in Ottawa.

Flagpoling (leaving & immediately reentering Canada) to fix immigration issues can be very risky, as (1) it will kill implied status to work or study while the IRCC processes an inside Canada extension application, (2) reentry may be refused, (3) even if readmitted, it might be without a work or study permit and possibly with a removal order condition attached. 

Everything possible should be done to support the legitimate appearance of documents in a client’s possession, as there are no official CBSA standards on what are legitimate and what are fraudulent foreign travel documents. The CBSA might even just use Google to check document legitimacy, so having corroborating documents, having official document certification, and having affidavits in support of authenticity should all be considered if coming from a region with a reputation for document fraud. It only takes one CBSA officer to doubt document authenticity for entry to Canada to be refused.

YOUR MP HAS A DIRECT BACKDOOR TO IMMIGRATION STATUS UPDATES

Did you know that the majority of citizen demands for help from local Member of Parliament constituency offices involve immigration and citizenship issues? The demands are so numerous that the IRCC has set up a special backdoor telephone and email contact line for those MPs. Sort of like a Canadian Express Ultra Platinum Immigration Card. 

You and I submit questions to IRCC through normal channels, and maybe it takes weeks or months to hear back, if we can get the information at all. The MPs submit questions, and they get answers the same day! They don’t have direct access to IRCC computer systems, but they get concierge service from IRCC helpers who will dig around electronic files and make internal enquiries to figure out where things stand. 

As an immigration lawyer or consultant, you can’t directly access this MP highway to IRCC information riches. But your clients can. So have them make an appointment with the constituency assistant. Give them something in writing for what questions you want answered. And prepare to be amazed. 

GLOBAL CASE MANAGEMENT SYSTEM (GCMS) HAS ALL THE NOTES YOU NEED

Although governments are never too quick off the mark in developing modern nimble electronic information management systems, most departments eventually get around to doing something, and then connecting it to the Internet. IRCC now has a GCMS system that replaced (or at least supplements) several older non-online systems. But the only way for lawyers, consultants and immigrants to access its contents seems to be through Access to Information and Privacy Act (ATIP) requests. 

In fact, the immigration process seems to be one constant ATIP poke according to some practitioners. One can make an Access to Information request for $5 and a Privacy Act request for free. Privacy Act gets you your own information, Access to Information gets you other government information. The problem with both requests is that they can take a long time for a response, and lead to extensive redacted information so that you then need to appeal, which in turn might go nowhere.

But refusal letters you might receive from IRCC could be so cryptic and brief that it is impossible to figure out what went wrong. And if you don’t know what went wrong, then it will be impossible to fix it in a new submission. Thus access to information and privacy requests are the only option to compel government disclosure of details, with Federal Court judicial review being a last resort if information requests and appeals are unsatisfactory. 

CBSA officers are directed to make GCMS notes that are (1) case relevant, (2) complete, (3) factual and (4) detailed enough so a reader can conclude what transpired during an interaction with a client, what directives were provided to a client, and what are the next steps. However, while previous non-online systems depended on narrative notes to describe steps and interactions, GCMS depends more on attached documents to be self-explanatory as to steps, with narrative notes to be kept to a minimum. 

In addition to the IRCC's GCMS system, the Integrated Customs Enforcement System (ICES) is where you will find records of seizures, other enforcement actions, lookouts, intelligence and investigation cases, and information from external sources relating to enforcement. Though because of exemptions, externally accessing that information may be challenging. 

IMMIGRATION APPEAL DIVISION MOVING TO SKYPE MODEL

When government departments get desperate, it's impressive what they can accomplish. My experience of two decades in government was that it was staffed by smart, hard working people who were sometimes held back from implementing innovative ideas that could result in great efficiencies, because of bureaucratic red tape and inertia. But when government Ministers wade in at the highest levels with orders to make things happen, red tape can get cast aside. 

Thus the IAD of the IRB is casting aside that darling of the 1980s the fax machine, in favour of email hearing scheduling. It’s also going to run hearings by Skype (or other video app) rather than in person, with telephone as a backup, so that witnesses don’t need to travel long distances within Canada, or face the impossibility of travelling from abroad. Indeed, IAD total inventory case backlogs are falling as overall IAD applications rise, so something is being accomplished.