Inadmissibility to Canada
Inadmissibility to Canada is decided by what the offence carries under Canadian law, not by what the foreign court did about it. That is why a fine abroad can close the border and a prison term abroad sometimes does not.
About this work
What actually makes somebody inadmissible?
The Act lists the grounds at sections 34 to 42. Security, war crimes and organized crime are on that list and are rare in an ordinary practice. Six grounds account for almost everything that comes through this office, and on each of them the column that matters is the last one.
Who a ground reaches decides whether a matter is survivable. Ordinary criminality at section 36(2) applies to foreign nationals only, and a permanent resident cannot be removed on it at all. Serious criminality at section 36(1) reaches permanent residents as well. The same conviction in the same household is therefore a different problem for a father with status than for a son without it.
Inadmissibility is also not the same as being charged. Section 36 turns on convictions and on committed acts, and a charge that is withdrawn or that ends in an acquittal is neither. A charge outstanding at the time of an application is still a fact that has to be disclosed, and an application will usually be held rather than refused while it is outstanding.
- SectionGroundWho it reaches
- s. 36(1)Serious criminalityPermanent residents and foreign nationals
- s. 36(2)CriminalityForeign nationals only. A permanent resident cannot be removed on it
- s. 38Health groundsForeign nationals. Excessive demand does not apply to a sponsored spouse, partner or child
- s. 40MisrepresentationPermanent residents and foreign nationals
- s. 41Non-compliance with the ActBoth, on different tests. This is what catches overstaying and working without authorisation
- s. 42An inadmissible family memberForeign nationals, other than protected persons
What changed
One impaired driving conviction changed category in December 2018
On 18 December 2018 the maximum penalty for most impaired driving offences rose from five years to ten. Nothing about the driving changed. The immigration consequence changed completely, because inadmissibility is measured against the Canadian maximum rather than against the sentence anybody actually received.
It became serious criminality
Section 36(1) of the Act catches an offence punishable in Canada by a maximum term of at least ten years. Impaired operation now carries ten years on indictment under section 320.19 of the Criminal Code, so it lands inside section 36(1) rather than the lesser section 36(2). That matters because section 36(2) reaches only foreign nationals, while section 36(1) reaches permanent residents as well.
The date of the offence is what governs
For anything committed before 18 December 2018 the department assesses inadmissibility on the penalties in force at the time. An older impaired driving conviction is therefore ordinary criminality, unless a Canadian court imposed a term of more than six months. Two clients with identical records and different dates are in different positions.
Deemed rehabilitation closed for it
Deemed rehabilitation, the route that clears an old single offence with no application at all, requires under section 18(2)(a)(i) of the Regulations that the offence be punishable in Canada by a maximum of less than ten years. A post-2018 impaired driving conviction fails that test permanently. It can still be cleared, but only by applying and paying for it.
The sentence decides whether there is an appeal
Under section 64(2) a permanent resident punished in Canada by a term of imprisonment of at least six months loses the right to appeal a removal order to the Immigration Appeal Division. At least six months, not more than six. A sentence of exactly six months takes the appeal away, which is why the number in the plea matters as much as the plea.
Side by side
Which removal order was issued?
4 routes, each with its own clock
Three orders share the same purpose and carry completely different consequences. The name on the paper decides whether somebody can come back next year, in five years, or only with permission. Read the order before assuming which one it is.
| Departure order | Exclusion order | Deportation order | |
|---|---|---|---|
| What it requires | Leave within 30 days of the order becoming enforceable and confirm the departure with the Canada Border Services Agency | Leave, and stay out for the barred period | Leave, with no date on which the bar ends |
| How long you are barred | No bar at all, if you left in time and confirmed it | One year, and five years where the order was made for misrepresentation | There is no expiry |
| Coming back needs an ARC | No, where the 30 days were met | Only within the barred period | Always |
| If you do not comply | It becomes a deportation order automatically under section 224(2) of the Regulations | The bar runs from the day you actually leave, so staying extends it | Removal costs are added to what has to be repaid before return |
The route
How does the process run?
5 stages, each with its own clock
Every period below is set by the Act or the Regulations, and the provision is named beside it. None of them is the firm's estimate.
A departure order runs for 30 days
IRPR s. 224(2)The clock starts when the order becomes enforceable rather than when it is handed over, and it stops while somebody is detained or while a stay is in place. Leaving inside the 30 days and confirming it with the Canada Border Services Agency is what keeps it a departure order.
An appeal to the Immigration Appeal Division is filed in 30 days
30 daysWhere the right of appeal exists at all. Section 64 removes it for security, human or international rights violations, sanctions, organized criminality, and serious criminality punished in Canada by at least six months.
Individual rehabilitation opens five years after the sentence ends
IRPR s. 17, 5 yearsFive years from completion of the sentence imposed, which includes fines, probation and any driving prohibition, not from the date of conviction. The application costs $246.25 for criminality and $1,231 for serious criminality.
Deemed rehabilitation is 10 years, and only for lesser offences
IRPR s. 18, 10 yearsOne conviction outside Canada equivalent to an indictable offence punishable here by less than ten years, and ten years elapsed since the day after the sentence was completed. Two or more summary equivalents need five years. No application, but no confirmation either.
Misrepresentation runs five years, from a date most people get wrong
IRPA s. 40(2), 5 yearsThe five years run from the final determination where it was made outside Canada, and from the day the removal order is enforced where it was made inside Canada. Somebody who stays and fights has not started the clock.
Before the meeting
What to bring to the first meeting
6 things to bring
Bring what you have and say what is missing. A meeting with the papers in front of it settles in one sitting what two telephone calls will not.
- ✓The court record: the charge, the plea, the sentence and the date of each
- ✓Any police certificate you hold, from every country you have lived in
- ✓Your immigration status document, and everybody in the household's
- ✓Every letter from the department, including any fairness letter and its deadline
- ✓Any removal order, with the date and the type written on it
- ✓Any pardon, record suspension or expungement, and the paper that grants it
Our approach
A clear path forward
The same four steps on every matter, whether it is a refusal at the Federal Court or a ticket at the Provincial Offences court.
Book a consultationUnderstand
We take the full history and read the documents before offering an opinion. Most bad advice comes from acting on half the facts.
Assess
You get a candid read on strength, timeline and cost, including when the honest answer is that you do not need to hire anyone.
Act
We prepare the application, the defence or the appeal properly the first time, because fixing a weak record later is harder and dearer.
Report
You hear from us at each stage, and you hear what a wait actually means rather than a date chosen to sound better.
Reported decisions
What has this work produced?
7 allowed of 22 reported since 2023
Public judgments of the Federal Court with Kapil Rathod as counsel of record, each checkable by citation on the court's own site. The rest were dismissed and are listed with these ones.
Super visa, parents and grandparents
Sharifi v Canada (Citizenship and Immigration)
2026 FC 99Docket IMM-23381-24
Application allowedWork permit, Temporary Foreign Worker Program
Sing v Canada (Citizenship and Immigration)
2026 FC 105Docket IMM-18690-24
Application allowedTemporary resident visa
Rehman v Canada (Citizenship and Immigration)
2026 FC 805Docket IMM-20802-24
Application allowedPermanent residence, Express Entry
Goel v Canada (Citizenship and Immigration)
2025 FC 275Docket IMM-1797-24
Application allowedWork permit, job offer
Sharma v Canada (Citizenship and Immigration)
2024 FC 1928Docket IMM-6445-23
Application allowedStudy permit
Tandel v Canada (Citizenship and Immigration)
2024 FC 1487Docket IMM-3700-23
Application allowedTemporary resident visa
Gill v Canada (Citizenship and Immigration)
2024 FC 1453Docket IMM-10337-23
Application allowed
Where to go next
Inadmissibility to Canada is worked out from the Canadian equivalent of the offence, the date it was committed and the sentence that was imposed, and each of those three can point a different way.
It is worth establishing which ground actually applies before deciding what to file, because the routes out of them are not interchangeable.
Common questions
What do people ask about inadmissibility?
10 answered here
Written to be read once and acted on rather than to be rung about. Each answer is complete where the law allows a complete answer.
How is a conviction from another country assessed?
By equivalency. The officer identifies what the foreign offence would be under Canadian law and then reads the Canadian maximum for that offence. The sentence the foreign court imposed is close to irrelevant. Somebody who paid a small fine abroad for an offence equivalent to one carrying ten years here is inadmissible for serious criminality. Somebody who served real time abroad for something equivalent to a summary offence here may not be inadmissible at all.
Two convictions change the arithmetic even where each is minor. Section 36(2)(a) catches two offences not arising out of a single occurrence, whatever their individual seriousness, so a pair of unrelated minor matters can do what neither would do alone.
This is why the paperwork matters more than the memory of it. The court record, the charging document and the sentence imposed are what allow the equivalency to be worked out. A client's description of what happened, however honest, is not enough to tell whether the border is closed.
How do you clear criminal inadmissibility?
There are four routes and they do different jobs. Deemed rehabilitation clears an old, lesser matter automatically: one conviction equivalent to an indictable offence punishable here by less than ten years, with ten years elapsed since the day after the sentence was completed, or two or more summary equivalents with five years elapsed. Nothing is filed and nothing is issued, which means nothing confirms it either. An officer at the border can take a different view, and many people ask for a formal opinion rather than arrive and find out.
Individual rehabilitation is the application, available five years after the sentence has been completed. It costs $246.25 where the inadmissibility is criminality and $1,231 where it is serious criminality. Approval is permanent and covers the offences it names.
A temporary resident permit is the route when there is no time to wait. Section 24 lets an officer issue one to somebody who is inadmissible where the need to enter outweighs the risk, for up to three years, and it costs $246.25. It is discretionary, it is a permission rather than a fix, and the underlying inadmissibility survives it.
A Canadian record suspension from the Parole Board removes the conviction from the police database and resolves the inadmissibility that came with it. A pardon or expungement from another country generally does not, unless it can be shown to be equivalent to a Canadian one. Clients arrive with foreign pardons believing the matter closed more often than with any other single misunderstanding on this page.
What does medical inadmissibility actually cover?
Three things, at section 38(1). A condition likely to be a danger to public health. A condition likely to be a danger to public safety. And a condition that might reasonably be expected to cause excessive demand on health or social services. The third is the one that produces almost all of the letters.
Excessive demand is measured against a published threshold set at three times the average Canadian per person cost of health and social services, which was tripled by a policy change in 2018 and is revised, so the current figure is worth reading rather than assuming. The assessment is individual: no condition is automatically disqualifying, and the question is the projected cost rather than the diagnosis.
Section 38(2) then removes the excessive demand ground entirely for a group of people. A spouse, common-law partner or child sponsored in the family class. Convention refugees and people in similar circumstances. Protected persons. And prescribed family members of those people. A sponsored spouse or child cannot be refused for excessive demand at all, which is the answer to a question this office is asked constantly and one that no amount of worrying changes.
Where the ground does apply, the answer to a fairness letter is a mitigation plan: evidence of who will pay, what the treatment actually costs, and why the projection in the letter is higher than the reality. It is an evidence exercise, and the deadline in the letter is real.
Why does misrepresentation catch people who were not lying?
Because section 40(1)(a) has no intention in it. The wording is directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act. Could induce. The error does not have to happen, and the person does not have to have meant anything by it.
What the section does require is materiality. A fact is material where it bears on the decision, which is why an omitted earlier refusal, an undisclosed former spouse or an unmentioned prior visa application are the recurring cases. All three feel private to the applicant and all three go to a relevant matter.
The consequence is five years, and the start date decides how bad it is. Where the finding is made outside Canada the five years run from the final determination. Where it is made in Canada they run from the day the removal order is enforced, so somebody who stays and litigates has not begun serving it. Section 64(3) removes one appeal against a misrepresentation finding, the sponsor's appeal under subsection 63(1), and keeps even that where the person refused is the sponsor's spouse, common-law partner or child.
Where a procedural fairness letter arrives before any of that, it is the whole opportunity. The answer explains the discrepancy and puts the documents behind it, and it is worth far more at that stage than any argument made afterwards.
Where does a criminal charge meet an immigration file?
At the sentence, and usually before anybody has thought about it. The two numbers that decide the immigration outcome are both set in the criminal court. Whether the offence carries a Canadian maximum of at least ten years, which puts it into section 36(1) and reaches permanent residents. And whether the term imposed is at least six months, which removes the appeal to the Immigration Appeal Division under section 64(2).
That second number is negotiable in a way the first is not. A sentence of five months and a sentence of six months are close to identical for the person serving them and completely different afterwards, because one leaves an appeal and the other does not. A conditional discharge is not a conviction, and a plea to a lesser included offence can move the matter out of section 36(1) altogether.
None of that is available once the sentence has been imposed. It has to be raised while the Crown is still deciding what it will accept, which means whoever is running the criminal matter has to know the client's status and what the plea will do to it. Where the defence and the immigration file sit with two different firms, that conversation frequently does not happen.
This firm runs both, in the same office. That is the reason the criminal side and the immigration side of a file are read together here rather than in sequence.
I had one impaired driving conviction years ago. Do I need to do anything?
It depends on the date of the offence rather than the date you were convicted. Committed before 18 December 2018, it is assessed on the penalties in force then, which means ordinary criminality and a possible clearing by deemed rehabilitation ten years after the sentence ended. Committed on or after that date, it is serious criminality and deemed rehabilitation is closed to it permanently, so it takes an application.
My country pardoned the conviction. Is that the end of it?
Usually not. A Canadian record suspension from the Parole Board resolves the inadmissibility that came with the conviction. A foreign pardon or expungement only helps if it can be shown to be equivalent to the Canadian process, and most are not. The conviction is still there for Canadian purposes until something Canadian deals with it.
Can I come to Canada while a rehabilitation application is pending?
Not on the strength of the application. Filing it does not lift the inadmissibility, and nothing about it entitles anybody to enter while it is being decided. Where there is a real reason to travel in the meantime, the route is a temporary resident permit, which is decided separately and is discretionary.
My husband has a serious health condition. Can I still sponsor him?
Yes, so far as excessive demand is concerned. Section 38(2) removes that ground entirely for a spouse, common-law partner or child sponsored in the family class. The other two health grounds, danger to public health and danger to public safety, still apply, and the medical examination is still required.
I got a date wrong on a form. Is that misrepresentation?
It can be, which is the uncomfortable answer. Section 40 has no intention requirement and reaches anything material that could induce an error. Whether a wrong date is material depends on what it bears on. A typo in a postcode is not the same as an omitted refusal or an undisclosed former marriage. Correct it in writing as soon as it is noticed rather than hoping it passes.
Speak to someone this week
Bring the court record and any letter from the department. Inadmissibility to Canada is assessed on the charge, the date and the sentence before anything else.



