Can I Sponsor My Spouse With a Criminal Record?
As you may or may not be aware, Canada has some requirements for both medical and criminal inadmissibility. Inadmissibility occurs when somebody is not able to come to Canada because of criminal or medical inadmissibility. Inadmissibility rules are based on the premise to protect the country and its citizenry from any medical or criminal concerns foreign nationals may bring.
While the topic of inadmissibility is quite complex in a lot of cases, we are going to focus on criminal inadmissibility concerning sponsoring a spouse or partner in this blog.
I want to premise this article by dispelling a myth that I hear quite a bit from very misinformed people. They believe that as a Canadian they have the right to marry whomever they wish and live happily ever after with the love of their life. While “yes” this is true, it neglects a very important point and that is that you can marry whoever you want, but the government has the final say on who can come to Canada. I know that a lot of people confuse this and sadly some are very surprised and taken aback when they have been refused or find out that this is not the case.
The Starting Point for Inadmissibility
Several different things need to be considered whenever we look at any inadmissibility but as a starting point, we need to know if there is even an inadmissibility issue and if so then what it is and how best to deal with it while considering all the factors and context that surround it.
We must investigate what the committed crime was and how it relates to Canadian law. If the crime was committed outside of Canada, there must be an equivalency test on something that might be a crime somewhere else but may not be a crime in Canada. This is a key starting point as you might find that there is no issue. It is important to provide context and reasons to the officer in advance to get ahead of this issue and use your narrative to put that on record.
Secondly, the date and timing when the offence happened must be considered. Depending on when the offence occurred, different scenarios would come into play, and we will delve into some of those right now
Deemed Rehabilitation
There is a term under Canadian immigration law called deemed rehabilitation. As per the link, you can meet this term and be considered deemed rehabilitated depending on several factors, such as:
- Whether you have committed one or more crimes
- If the crime would be punishable in Canada by a maximum prison term of fewer than 10 years
- The type of crime that has been committed
- How serious the crime was and how much time has passed since you completed the sentence imposed for your crime:
- 10 years for one indictable offence
- Five years for two or more summary convictions
A Side Note on the Types of Offences
As a side note and for context, we have different types of offences here in Canada and they can be simply explained as an indictable offence is serious and some jurisdictions call this a felony, and a summary offence is less serious and is equated to a misdemeanour. In Canada, there is also something called a hybrid offence. A hybrid offence can be either a summary or an indictable offence depending on the seriousness of the crime, but for immigration and inadmissibility purposes, you always need to treat the offence equivalent to an indictable offence.
If you are interested to check out some more resources related to this, check out this great YouTube Masterclass, and here is a link to further break down the types of offences in Canada.
Sponsoring a Spouse/Partner with a Criminal Record
So, back to our original question: can you bring a spouse or common-law partner if they have a criminal record? The answer is, maybe.
There are different steps to being able to sponsor a spouse and it all depends on your case, of course. Several factors need to go into this, but the most common way to overcome an inadmissibility issue is through a Temporary Resident Permit.
If it is a committed crime in equivalence to Canadian law, you'll have to file a Temporary Resident Permit (TRP). It will allow you to enter or stay in Canada if it has been less than five years since the end of your sentence or you have valid reasons to be in Canada.
The temporary resident permit is a way for the immigration officer to be able to exercise discretion as the law is the law and while they might want to help you out with the situation, they cannot just arbitrarily do this, but the TRP allows for this discretion. The immigration officer can't just look at your file, say you look like a good person, and give you a pass. What happens for this process is that the immigration officer is going to review your case and issue the TRP with their discretion. You're going to have to apply for this as a Spousal Sponsorship is for both permanent and temporary residency in some iterations of the filing.
To be eligible for a Spousal Sponsorship, if the applicant is in Canada, they must have a valid status. As outlined in the Sponsorship Instruction Guide for Sponsor Obligations, the only cases where they can be sponsored and exempt from this is under a public policy set out in 2005. A person can be sponsored, only if they are inadmissible because they:
- overstayed a visa, visitor record, work, or student permit
- worked or studied without being legally allowed to
- entered Canada without a visa or other document that was required
- entered Canada without a valid passport or travel document (if they have valid documents by the time they are granted the PR)
If they are inadmissible for other reasons, such as a criminal record, then they’re not covered by the public policy. As discussed, the issue that made them inadmissible must be resolved before applying for Sponsorship.
Another option might be adding Humanitarian and Compassionate (or H&C) considerations to the file. This is where the “heart” of immigration is for exceptions that provide hardship, and this allows for the Act to take these into account. It is VERY important to note however that these are for special cases, which can only be applied for PR status in Canada, or a permanent resident visa overseas.
H&C is something to consider, especially if your case has children involved, and the situation has greatly impacted them. I have successfully navigated H&C cases for different clients, some of whom were dealing with serious illnesses, bad representation that has led them to this spot, criminal issues for a spouse, and most often, the hardship that would be placed on a child. These would have resulted in very tragic outcomes, had it not turned out the way it did and had they not been looked at properly and professionally, but they have all worked out well in several different respects.
Final Thoughts
In conclusion, the answer to being able to sponsor a spouse or common-law partner with a criminal record is, maybe, but generally yes but still a maybe as this is a very complex area and should not be attempted without proper professional guidance. The reason I say that is when you're dealing with family relationships, the immigration department does have mechanisms in place to account for past transgressions, but you need to know how to utilize these given your unique situation.
These situations need to be dealt with appropriately and these can be very complicated applications. At the same time, you need to make sure that you're on top of the applications by having the necessary documents to submit and having a strategic plan in place for getting ahead of these issues by articulating them in your favour from the outset.
It is important to think long-term and possible next steps to take for remedies if you are not initially successful. They may include appearing before The Immigration and Refugee Board of Canada or filing an application for leave in Federal Court for a Judicial Review. You want to make sure you have everything in order so that it is presented properly from the outset so that you can be successful at a later stage if this is needed. Again, it all depends on your specific case and your situation but just be prepared to get the appropriate advice should you have a partner/spouse with a criminal record.
These situations are often complex and professional representation is highly recommended to navigate your situation. If you have a similar situation and want to sponsor your spouse that has a criminal record, please reach out to us to get the proper legal advice you require.
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