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Can You Sponsor a Spouse with a Criminal Record?

Criminal-Record-spousal-sponsorship

Is your dream to reunite with a loved one through spousal sponsorship Canada? What if your loved one has a criminal record, does this mean that he/she will not be able to enter Canada? Sponsorship applications can be very complex depending on your unique situation. You may not be able to sponsor someone who has been charged or convicted of a criminal offense. In fact, your spouse can be declared inadmissible to Canada due to a criminal record. Once someone is considered inadmissible to Canada, they cannot legally enter the country unless they obtain proper authorization.

Applying for a temporary resident permit

We know that being separated from a loved one can be very disheartening. If your spouse is considered inadmissible to Canada due to a criminal offense, he/she can be given special authorization in the form of a temporary resident permit to enter Canada. A temporary resident permit (TRP) and a temporary resident visa are very distinct documents and shouldn’t be confused.

A TRP allows an individual to overcome inadmissibility for a specific period of time. For the application to be approved, you must prove that you have a specific reason to enter Canada even though it’s only on temporary grounds. However, note that the TRP cannot be used for entry to Canada for you to begin the permanent residency process. To permanently overcome criminal inadmissibility, it is necessary to apply for rehabilitation.

The TRP can help you to visit with a loved one until the criminal inadmissibility is. The inadmissibility can be removed by applying for rehabilitation or when the applicant is deemed rehabilitated. To be eligible for rehabilitation at least five years must have passed since the criminal sentence was completed.

What offense was committed?

To understand the situation that your spouse could be in, let’s go over the three types of offenses that exist in Canada.

  • Summary offenses: These offenses are less serious and could lead to either 6 months imprisonment or a fine of up to $5,000.
  • Indictable offenses: These are serious offenses such as robbery with violence, theft over $5000, assault, and sexual assault. Individuals who commit these offenses usually get maximum penalties and long sentences such as life imprisonment.
  • Hybrid offenses: In this case, the crown counsel will decide how the offense will be handled. It could be handled as a summary or indictable offense. In immigration law, any hybrid offence will automatically be considered indictable for purposes of assessing admissibility.

Therefore, identifying the type of offense and the section of the law where it falls can help determine if your sponsorship application has a high likelihood of success.  Under section 36(2)(a) of the Immigration and Refugee Protection Act, a foreign national is inadmissible to Canada if they have been convicted of an indictable offence or two summary offences in Canada. Other sections make similar provisions for those convicted of crimes in foreign countries. A foreign national can also be found inadmissible for committing a “criminal act”, even if they have not been convicted of a crime. These broad provisions mean that most criminal convictions or actions will result in a foreign national being criminally inadmissible to Canada.

Overcoming inadmissibility based on criminality by appeal

If you apply to sponsor your spouse and your spouse is found to be inadmissible to Canada based on criminal grounds, you may be able to overcome this by appealing the decision to the Immigration Appeal Division. The Appeal Division has the jurisdiction to grant the appeal on humanitarian and compassionate grounds even if the spouse is criminally inadmissible. Immigration appeals are very complex legal situations that should only be handled by a reliable and experienced immigration lawyer. It requires in-depth knowledge of Canada’s criminal law to overcome the inadmissibility which is why you must seek the best legal representation.

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