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When a Canadian Citizen or Permanent Resident intends to sponsor their spouse for permanent residency, any criminal charges or convictions in the spouse’s background should be addressed with care. The Immigration, Refugees and Citizenship Canada (IRCC) conducts thorough background checks, evaluating all needed documentation and facts to determine whether a foreign individual poses an inadmissibility risk. However, even with a history of inadmissibility, there are strategies to overturn such obstacles. These strategies vary depending on the gravity of the offence, the amount of time elapsed, and the incidence of offences.
Disclosure Requirements for Charges without Conviction
In instances where charges were dismissed without a conviction, it is still mandatory to declare such occurrences. Full disclosure, including all pertinent details and corresponding legal documentation, is essential. Neglecting to provide this information when initially applying for sponsorship could result in a considerable processing delay, potentially extending upwards of six months. A clear Police Background Check does not negate the requirement to divulge all charges—dropped or not. Clear and transparent disclosure is crucial, as any omission of facts can lead to a refusal of the application for misrepresentation. Should misrepresentation be determined, the implicated party might face a five-year prohibition on submissions. At PL Immigration, handling such cases of misrepresentation is familiar territory; we assist clients in navigating through and correcting the resulting bans.
When it comes to a singular, non-severe criminal violation, and a decade has lapsed since completing any related obligations such as sentences, probation, community service, or fines, individuals are eligible to proceed with a spousal sponsorship petition. In these circumstances, it is advisable to complement the application with persuasive documentation and substantiations advocating for Deemed Rehabilitation, effectively addressing the matter of non-serious criminality.
In scenarios where multiple infractions are recorded, or if any include grave criminal violations, and five years have elapsed since fulfillment of all judicially mandated duties, the spousal sponsorship process remains accessible. Nevertheless, it necessitates the submission of a Criminal Rehabilitation request accompanied by a fee (either $200 or $1,000), bolstered by well-crafted legal arguments and evidence aimed at resolving the criminal inadmissibility.
It is not uncommon for immigration advisors to provide misguided direction in these complex circumstances due to a lack of experience in representing such nuanced cases. A conservative approach often suggests a waiting period of five years post-iction to seek Criminal Rehabilitation or a formal exoneration, which is a misconception. Foreign exonerations do not equate to automatic resolution of inadmissibility under Canadian law. Additionally, securing a Canadian Pardon for offences within Canada could be a protracted ordeal.
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The Humanitarian and Compassionate (H&C) provisions under section 25(1) of the Immigration and Refugee Protection Act (IRPA) can serve as a robust tool in counteracting all forms of inadmissibility, including those related to convictions both foreign and domestic. At PL Immigration, this particular facet of legislation is frequently employed to help clients navigate through the complexities of inadmissibility.
In each Permanent Resident (PR) submission, it is crucial to have the expertise of a seasoned law firm capable of invoking H&C statutes to contest ineligibility or inadmissibility. The success of these submissions hinges on the delivery of compelling arguments and robust evidence, a task for which an adept lawyer’s expertise is indispensable.
Having a focus on intricate immigration challenges, PL Immigration stands witness to a substantial number of declined cases. Around 30% of our clientele reach out to us post-initial rejection, commonly after seeking assistance from other immigration professionals. A recurring error observed is the misstep where separate Criminal Rehabilitation filings are coupled with an H&C request within the same application – this is not permissible and often leads to subsequent refusals, including related spousal sponsorship petitions.
Section 25 (1) mandates that the Minister must review the case of a foreign national residing in Canada who wishes to obtain permanent residency but faces inadmissibility—except under sections 34, 35, or 37—or fails to meet the conditions set forth by the legislature. Additionally, this prerogative extends to the Minister for foreign nationals residing outside of Canada, again, with the exception of those inadmissible under sections 34, 35, or 37, who seek a permanent residency visa.
In such situations, the Minister is empowered to evaluate the individual circumstances for each applicant, and is authorized to confer permanent resident status or grant a waiver for any requisite criteria or conditions under the law. This decision-making process is driven by humanitarian and compassionate grounds related to the applicant, inclusive of considerations for the welfare of any children directly impacted by the decision.
PL Immigration is committed to ensuring fair and humane policies are in place to help those foreign nationals who may find themselves ineligible under certain provisions of the immigration act, but who have compelling circumstances warranting special consideration. The outlined policy reflects an understanding that certain cases merit a compassionate evaluation, thereby potentially allowing for exceptions to the regular immigration requirements on the basis of significant humanitarian or familial factors.
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