The Spousal Sponsorship program, encompassing both Inland and Outland applications, enables Canadian citizens and permanent residents to sponsor their spouse for permanent residency in Canada. However, when the applicant has a criminal charge, such as a DUI (Driving Under the Influence), it complicates the process.
The Spousal Sponsorship program, encompassing both Inland Spousal Sponsorship and Outland applications, enables Canadian citizens and permanent residents to sponsor their spouse for permanent residency in Canada. However, when the applicant has a criminal charge, such as a DUI (Driving Under the Influence), it complicates the process. This article examines the implications of a DUI charge for applicants, the process for addressing potential inadmissibility, and relevant legal precedents in Canada.
Understanding Criminal Inadmissibility Under IRPA
Under the Immigration and Refugee Protection Act (IRPA), criminal inadmissibility is a critical factor for applicants seeking permanent residency in Canada. Section 36 of the IRPA outlines the conditions under which a person may be deemed inadmissible:
Serious Criminality (Section 36(1)): Inadmissibility arises if the person has been convicted of an offense punishable by a maximum term of imprisonment of at least 10 years in Canada or for which they were sentenced to more than six months in prison.
Criminality (Section 36(2)): Inadmissibility applies if the person has been convicted of an offense that, if committed in Canada, would be considered a summary conviction or indictable offense.
The Spousal Sponsorship program, encompassing both Inland and Outland applications, enables Canadian citizens and permanent residents to sponsor their spouse for permanent residency in Canada. However, when the applicant has a criminal charge, such as a DUI (Driving Under the Influence), it complicates the process. This article examines the implications of a DUI charge for applicants, the process for addressing potential inadmissibility, and relevant legal precedents in Canada.
Understanding Criminal Inadmissibility Under IRPA
Under the Immigration and Refugee Protection Act (IRPA), criminal inadmissibility is a critical factor for applicants seeking permanent residency in Canada. Section 36 of the IRPA outlines the conditions under which a person may be deemed inadmissible:
Serious Criminality (Section 36(1)): Inadmissibility arises if the person has been convicted of an offense punishable by a maximum term of imprisonment of at least 10 years in Canada or for which they were sentenced to more than six months in prison.
Criminality (Section 36(2)): Inadmissibility applies if the person has been convicted of an offense that, if committed in Canada, would be considered a summary conviction or indictable offense.
Evaluating DUI Charges for Spousal Sponsorship
In Canada, DUI offenses are prosecuted under the Criminal Code. As of December 18, 2018, impaired driving offenses are considered serious criminality due to an increase in the maximum penalty to 10 years imprisonment. This change impacts the evaluation of equivalent offenses committed outside Canada, such as in the United States.
For spousal sponsorship applicants with a DUI charge, Canadian immigration authorities assess the equivalency of the foreign offense under Canadian law. If the DUI meets the threshold of serious criminality, the applicant may be deemed inadmissible.
Steps to Address a DUI Charge in Spousal Sponsorship Applications
Declaration of Criminal History
The applicant must disclose the DUI charge in their application. Failure to declare criminal history may result in a finding of misrepresentation, leading to inadmissibility for five years.
Completion of Sentence
Canadian immigration authorities consider whether the sentence associated with the offense has been completed. This includes community service, probation, or any other court-mandated requirements.
Rehabilitation
Individual Rehabilitation: Applicants may apply for rehabilitation if at least five years have passed since the completion of their sentence. Approval is discretionary and depends on evidence of rehabilitation, such as completion of programs, letters of reference, and proof of a law-abiding lifestyle.
Deemed Rehabilitation: For less serious offenses, applicants may be deemed rehabilitated after a prescribed period if no further offenses have been committed.
Temporary Resident Permit (TRP)
If the applicant’s sentence is ongoing or they are not eligible for rehabilitation, they can apply for a TRP. This allows them to overcome inadmissibility temporarily and enter Canada while their spousal sponsorship application is processed.
Case Law and Precedents
Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3
This Supreme Court case emphasized the importance of assessing the humanitarian and compassionate grounds in cases involving inadmissibility. For spousal sponsorship applications, the best interests of the Canadian sponsor and their family are relevant factors.
Canada (Minister of Citizenship and Immigration) v. Tran, 2017 SCC 50
This case clarified the interpretation of “serious criminality” and its application under Section 36 of IRPA. The court ruled that the maximum penalty at the time of conviction, not sentencing, determines serious criminality.
Mbuyamba v. Canada (Citizenship and Immigration), 2018 FC 963
The Federal Court emphasized the need for transparency in applications and the significance of rehabilitation evidence when assessing inadmissibility.
Practical Considerations
Legal Counsel
Applicants with criminal charges should consult an immigration lawyer to evaluate their case and develop a strategy for overcoming inadmissibility.
Supporting Documents
Provide comprehensive documentation, including court records, proof of sentence completion, and evidence of rehabilitation efforts (e.g., alcohol education programs).
Impact on Sponsorship Approval
While the applicant’s inadmissibility is a concern, the sponsor’s eligibility and genuine relationship with the applicant are also critical factors in the overall assessment of the application.
A DUI charge adds complexity to Spousal Sponsorship applications, whether Inland or Outland. By understanding the legal framework, addressing inadmissibility proactively, and providing thorough documentation, applicants can improve their chances of a successful outcome. Transparency, legal guidance, and adherence to IRPA requirements are essential to navigating the process effectively.
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