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Immigration and Refugee Protection Regulations (SOR/2002-227)

Regulations are current to 2022-05-02 and last amended on 2022-04-26. Previous Versions

PART 3Inadmissibility (continued)

DIVISION 1Determination of Inadmissibility (continued)

Marginal note:Application of paragraph 35(1)(b) of the Act

 For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes

  • (a) heads of state or government;

  • (b) members of the cabinet or governing council;

  • (c) senior advisors to persons described in paragraph (a) or (b);

  • (d) senior members of the public service;

  • (e) senior members of the military and of the intelligence and internal security services;

  • (f) ambassadors and senior diplomatic officials; and

  • (g) members of the judiciary.

  • SOR/2016-136, s. 2

Marginal note:Prescribed period

 For the purposes of paragraph 36(3)(c) of the Act, the prescribed period is five years

  • (a) after the completion of an imposed sentence, in the case of matters referred to in paragraphs 36(1)(b) and (2)(b) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act; and

  • (b) after committing an offence, in the case of matters referred to in paragraphs 36(1)(c) and (2)(c) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.

Marginal note:Rehabilitation

  •  (1) For the purposes of paragraph 36(3)(c) of the Act, the class of persons deemed to have been rehabilitated is a prescribed class.

  • Marginal note:Members of the class

    (2) The following persons are members of the class of persons deemed to have been rehabilitated:

    • (a) persons who have been convicted outside Canada of no more than one offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely,

      • (i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

      • (ii) at least 10 years have elapsed since the day after the completion of the imposed sentence,

      • (iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

      • (iv) the person has not been convicted in Canada of any summary conviction offence within the last 10 years under an Act of Parliament or of more than one summary conviction offence before the last 10 years, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (v) the person has not within the last 10 years been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (vi) the person has not before the last 10 years been convicted outside Canada of more than one offence that, if committed in Canada, would constitute a summary conviction offence under an Act of Parliament, and

      • (vii) the person has not committed an act described in paragraph 36(2)(c) of the Act, other than the one for which they have been convicted;

    • (b) persons convicted outside Canada of two or more offences that, if committed in Canada, would constitute summary conviction offences under any Act of Parliament, if all of the following conditions apply, namely,

      • (i) at least five years have elapsed since the day after the completion of the imposed sentences,

      • (ii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

      • (iii) the person has not within the last five years been convicted in Canada of an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (iv) the person has not within the last five years been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (v) the person has not before the last five years been convicted in Canada of more than one summary conviction offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (vi) the person has not been convicted of an offence referred to in paragraph 36(2)(b) of the Act that, if committed in Canada, would constitute an indictable offence, and

      • (vii) the person has not committed an act described in paragraph 36(2)(c) of the Act; and

    • (c) persons who have committed no more than one act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely,

      • (i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

      • (ii) at least 10 years have elapsed since the day after the commission of the offence,

      • (iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

      • (iv) the person has not been convicted in Canada of any summary conviction offence within the last 10 years under an Act of Parliament or of more than one summary conviction offence before the last 10 years, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (v) the person has not within the last 10 years been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

      • (vi) the person has not before the last 10 years been convicted outside Canada of more than one offence that, if committed in Canada, would constitute a summary conviction offence under an Act of Parliament, and

      • (vii) the person has not been convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.

Marginal note:Prescribed class

  •  (1) The class of foreign nationals who are inadmissible solely on the basis of having been convicted in Canada of two or more offences that may only be prosecuted summarily, under any Act of Parliament, is a prescribed class for the application of paragraph 36(2)(a) of the Act.

  • Marginal note:Exemption

    (2) A member of the class prescribed in subsection (1) is exempt from the application of paragraph 36(2)(a) of the Act if it has been at least five years since the day after the completion of the imposed sentences.

  • SOR/2004-167, s. 8

Marginal note:Transborder crime

 For the purposes of paragraph 36(2)(d) of the Act, indictable offences under the following Acts of Parliament are prescribed:

  • SOR/2018-170, s. 1

Marginal note:Inadmissibility on health grounds

  •  (1) An officer shall determine that a foreign national is inadmissible on health grounds if the officer determines that the foreign national’s health condition is likely to be a danger to public health or public safety or, except for a foreign national referred to in subsection 38(2) of the Act, might reasonably be expected to cause excessive demand.

  • Marginal note:Danger to public health or public safety

    (2) Before determining that the foreign national’s health condition is likely to be a danger to public health or public safety, the officer shall consider any opinions of an officer who is assessing the foreign national’s health condition.

  • Marginal note:Excessive demand

    (3) Before determining that the foreign national’s health condition might reasonably be expected to cause excessive demand, the officer shall consider

    • (a) any opinions of an officer who is assessing the foreign national’s health condition; and

    • (b) any relevant non-medical factors, including

      • (i) the foreign national’s intent and financial ability to mitigate any excessive demand, and

      • (ii) the feasibility of a mitigation plan, if any, submitted by the foreign national.

Marginal note:Financial reasons

 Protected persons within the meaning of subsection 95(2) of the Act are exempted from the application of section 39 of the Act.

Marginal note:Misrepresentation

 Persons who have claimed refugee protection, if disposition of the claim is pending, and protected persons within the meaning of subsection 95(2) of the Act are exempted from the application of paragraph 40(1)(a) of the Act.

Marginal note:Application of paragraph 41(a) of the Act

 For the purpose of determining whether a foreign national is inadmissible under paragraph 41(a) of the Act for having failed to comply with the condition set out in paragraph 43(1)(e) or 183(1)(d) of these Regulations, if the foreign national has been convicted for having contravened an order or regulation made under the Emergencies Act or the Quarantine Act, the facts on which the conviction is based shall be considered to be conclusively established.

Marginal note:Prescribed circumstances — family members

 For the purposes of paragraph 42(1)(a) of the Act, the prescribed circumstances in which the foreign national is inadmissible on grounds of an inadmissible non-accompanying family member are that

  • (a) the foreign national is a temporary resident or has made an application for temporary resident status, an application for a permanent resident visa or an application to remain in Canada as a temporary or permanent resident; and

  • (b) the non-accompanying family member is

    • (i) the spouse of the foreign national, except where the relationship between the spouse and foreign national has broken down in law or in fact,

    • (ii) the common-law partner of the foreign national,

    • (iii) a dependent child of the foreign national and either the foreign national or an accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law, or

    • (iv) a dependent child of a dependent child of the foreign national and the foreign national, a dependent child of the foreign national or any other accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law.

  • SOR/2014-269, ss. 1, 6

Marginal note:Exception

  •  (1) The exception set out in paragraph 38(2)(a) of the Act does not apply to a child who is not a dependent child of the sponsor.

  • Marginal note:Prescribed family members

    (2) The following family members of a foreign national referred to in paragraph 38(2)(a) of the Act are prescribed for the purpose of paragraph 38(2)(d) of the Act:

    • (a) the dependent child of the sponsor’s spouse or common-law partner;

    • (b) the dependent child of the dependent child referred to in paragraph (a); and

    • (c) the dependent child of the sponsor’s dependent child.

  • Marginal note:Exception

    (3) Paragraph 38(1)(c) of the Act does not apply to a foreign national who is a member of the family class and is

    • (a) the conjugal partner of a sponsor;

    • (b) the dependent child of the conjugal partner referred to in paragraph (a);

    • (c) the dependent child of the dependent child referred to in paragraph (b); or

    • (d) a person referred to in paragraph 117(1)(g).

DIVISION 2Application for Declaration of Relief Under Subsection 42.1(1) of the Act

Marginal note:Application

  •  (1) A foreign national may apply for a declaration of relief under subsection 42.1(1) of the Act if a decision has been made to refuse their application for permanent or temporary resident status, or a removal order has been issued against them, on the basis of a determination of inadmissibility under section 34, paragraph 35(1)(b) or (c) or subsection 37(1) of the Act.

  • Marginal note:Judicial review

    (2) However, if the foreign national has filed an application for leave to commence an application for judicial review under subsection 72(1) of the Act with respect to a decision or removal order referred to in subsection (1), the foreign national may only make an application under subsection (1) after the earliest of the following:

    • (a) the Federal Court refuses the application for leave,

    • (b) if the application for leave is granted, the Federal Court refuses the application for judicial review and no question is certified for the Federal Court of Appeal,

    • (c) if a question is certified for the Federal Court of Appeal,

      • (i) an appeal to the Federal Court of Appeal is not filed within the time limit, or

      • (ii) the Federal Court of Appeal dismisses the appeal and an application to the Supreme Court of Canada for leave to appeal from that decision is not filed within the time limit,

    • (d) if an application is filed with the Supreme Court of Canada for leave to appeal,

      • (i) the application is refused,

      • (ii) the application is granted and an appeal is not filed within the time limit, or

      • (iii) the Supreme Court of Canada dismisses the appeal, and

    • (e) the foreign national discontinues their application for leave to commence an application for judicial review, application for judicial review, appeal to the Federal Court of Appeal, application to the Supreme Court of Canada for leave to appeal or appeal to the Supreme Court of Canada, as the case may be.

  • SOR/2017-38, s. 3
 
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