Federal court: visa officers do not need to consider if applicant is criminally rehabilitated

The visa officer refused Ms. Bello’s application for permanent residence. (File photo: Lumi W/Unsplash)

Canada’s federal court has ruled that Immigration, Refugees and Citizenship Canada (IRCC) visa officers do not have to consider if someone with a criminal record is deemed rehabilitated if the applicant does not specifically ask them to.

In the case of Bello v. Canada (Citizenship and Immigration), the applicant, Ms. Bello, was a Nigerian citizen who used a falsified passport to enter England. In 2010, she was arrested, charged, and convicted in the United Kingdom for the use of forged documents.

In 2017, Ms. Bello claimed refugee protection in Canada, accompanied by her two minor children. In 2019, a report was written setting out Ms. Bello’s inadmissibility to Canada based on serious criminality.

In 2021, while her refugee claim was pending, Ms. Bello applied for permanent residence, acknowledging that she was inadmissible to Canada but stating that she was “seeking an exemption” from her inadmissibility based on humanitarian and compassionate (H&C) grounds.

The visa officer refused Ms. Bello’s application for permanent residence. Justifying the decision, the visa officer stated that she was not eligible on the grounds of serious criminality for being convicted of an offence outside Canada, that if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.

In cases such as this, the issue before the Court is to determine whether the IRCC officer’s decision was reasonable.

Ms. Bello argued that the officer erred because he failed to consider whether she was deemed rehabilitated. However, the court ruled that the “deemed rehabilitated’ argument was not before the officer. Ms. Bello conceded that she was inadmissible to Canada in her application. The point of her submission to the officer was to ask for an “exemption” or “waiver” from her inadmissibility, not whether she was deemed rehabilitated and therefore not inadmissible to Canada based on serious criminality.

The implications of Ms. Bello’s case are that if an applicant is deemed criminally inadmissible to Canada based on serious criminality, it is not up to the visa officer to determine if the individual has been rehabilitated unless their application specifically requests this determination to be made.

Therefore, if an applicant is criminally admissible to Canada, they should make sure to include possible rehabilitation in their application if they believe they would be eligible for deemed rehabilitation and it will help their application, otherwise it will not be considered.

How to overcome criminal inadmissibility to Canada

A foreign national who has been arrested or convicted of a criminal offence may be considered criminally inadmissible to Canada. Foreign convictions and arrests are compared to Canadian laws in determining an individual’s criminal inadmissibility, and an equivalent will be found under the Criminal Code of Canada.

If the offense is equivalent to an indictable offence in Canada, which is defined as serious criminality, you may be considered inadmissible to Canada and denied entry into the country.

There are three main ways to overcome inadmissibility to Canada:

• A Temporary Resident Permit application
• A Criminal Rehabilitation application
• A Legal Opinion Letter

A Temporary Resident Permit (TRP) grants temporary access to Canada. A TRP is primarily used in situations where a foreign national has a valid reason for entering Canada and the benefits of their entry outweigh any risks to Canadian society.

A TRP application can be granted for up to three years, depending on the reason for entry. A person can apply for a TRP at any time, as it does not require the completion of a criminal sentence.

A foreign national can also choose to submit a criminal rehabilitation application, which will permanently clear past criminal history for the purposes of entering Canada. The criminal rehabilitation application is a one-time solution that does not require renewal. If approved for criminal rehabilitation, the applicant is no longer considered inadmissible and would not require a TRP for entry into Canada.

In order be eligible for criminal rehabilitation, the applicant must meet the following criteria:

• Must have committed an act outside of Canada that would be equivalent to an offence under the Canadian Criminal Code,
• Must have been convicted of or admitted to committing the act, and
• Five years must have passed since the sentence has been completed. This includes jail time, fines, community service or probation.

Another option is to submit a legal option letter, which would be drafted by a Canadian immigration lawyer. This is used pre-emptively by a person convicted of a crime to avoid being found inadmissible to Canada. The letter will include the consequences of a conviction for Canadian immigration purposes, the relevant sections of Canadian law to help the official decide how to respond to the charges and how different outcomes (conviction, sentencing, etc.) would affect their ability to come to Canada. The letter is taken into consideration by the judicial authority hearing the case.