Spouses with Criminal Records or Offences
In case you are a Canadian Citizen or Permanent Resident looking to sponsor your spouse for PR in the country, special measures have to be taken if they have previously been charged with (or convicted of) a criminal offence. To be convinced a foreign national is not inadmissible to Canada, IRCC performs a complete background check, and review all required documents and facts. However, there are ways to overcome the inadmissibility even if a spouse is inadmissible. The method used to overcome an inadmissibility is based on the number of offences, their nature, and the time that has passed since they were committed.
Only charged with an offense, but never convicted
Even if all charges have been dropped and a conviction has never occurred, the charges still have to be disclosed, with all facts presented – including the relevant court documents. If you fail to present these documents in the application upon submission the application can be delayed by up to 6 months. IRCC needs to get all relevant information in order to perform a proper assessment. The fact that a charge is not appearing on a Police Background Check does not absolve the applicant from giving all the necessary information. All charges have to be disclosed (even those dropped), otherwise the application may be refused for Misrepresentation, even if a person is found to be not Criminally Inadmissible.
Only one offence (non-serious criminality); plus, 10 years have passed since the most recent of the following occurrences: the offence, fine being paid, end of sentence, parole, community service
The non-serious criminality can be overcome by requesting Deemed Rehabilitation along with written arguments and evidence (in which case a spousal sponsorship application can be submitted).
One or more offence(s), including serious criminality; plus 5 years have passed since the most recent of the following occurrences: the offence, fine being paid, end of sentence, parole, community service
The non-serious criminality can be overcome by requesting Criminal Rehabilitation along with written arguments and evidence (as well as the corresponding fee of $200 or $1,000) – in which case a spousal sponsorship application can be submitted.
Less than 5 years have passed, and your spouse is NOT eligible for Criminal Rehabilitation or Deemed Rehabilitation
Interestingly, numerous immigration firms offer the wrong advice in cases like this; the main reason being that most practitioners are reluctant to take on complex cases as they do not have the experience representing such clients. Therefore, most consultants will advise individuals that they need to wait until the 5-year waiting period is over to be eligible to apply for Criminal Rehabilitation, which is incorrect. In fact, Visa Time Immigration helps overcome different type of inadmissibility by relying on section 25(1) of IRPA – the Humanitarian and Compassionate (H&C) section of the law.
It is said that in any PR application, the applicant can request relief in order to overcome either an ineligibility or inadmissibility. It is critical to retain a reputable consulting firm that has substantial experience to overcome inadmissibility. To be successful using H&C law, the arguments should be well structured and enough evidence needs to be given.
A common mistake that immigration firms make, is that they submit a separate Criminal Rehabilitation application and request H&C within this application to overcome the ineligibility, which is not permitted and results in the refusal of the application, usually with the separate spousal sponsorship application refused shortly thereafter.