The inadmissibility system — overview
Overview
Canada's Immigration and Refugee Protection Act (IRPA) sets out several grounds on which a foreign national or permanent resident may be found inadmissible — that is, not permitted to enter or remain in Canada. The main grounds are: security (s 34), serious criminality (s 36), organised criminality (s 37), health (s 38), misrepresentation (s 40), and non-compliance with the Act (s 41). A finding of inadmissibility may result in a removal order.
Inadmissibility is one of the central concepts in Canadian immigration law. Unlike a visa refusal — which simply declines to grant status — a finding of inadmissibility has active consequences: it can prevent entry at the border, result in an admissibility hearing before the Immigration Division (ID) of the IRB, and ultimately lead to a removal order.
Different inadmissibility grounds apply differently to foreign nationals and permanent residents. Some grounds apply to both; others are more or less onerous depending on the person's immigration status in Canada.
Legal basis
- IRPA s 33 — the general interpretation provision: rules of interpretation for the inadmissibility provisions
- IRPA s 34 — security inadmissibility (terrorism, espionage, subversion, etc.)
- IRPA s 35 — human or international rights violations
- IRPA s 36 — serious criminality and criminality
- IRPA s 37 — organised criminality
- IRPA s 38 — health grounds (excessive demand)
- IRPA s 39 — financial reasons
- IRPA s 40 — misrepresentation
- IRPA s 41 — non-compliance with the Act
- IRPA s 42 — inadmissibility of family members
- IRPA ss 44–46 — the admissibility hearing process
How it works
The inadmissibility report (s 44)
When a Canada Border Services Agency (CBSA) or IRCC officer has reasonable grounds to believe a foreign national or permanent resident is inadmissible, they may prepare an inadmissibility report under s 44(1). The report is sent to the Minister's delegate for review.
Referral to the Immigration Division
Following a s 44 report, the Minister's delegate may:
- Issue a removal order directly (for less serious matters or at the border)
- Refer the matter to the Immigration Division (ID) for an admissibility hearing (for more complex cases or permanent residents)
Admissibility hearing before the ID
The Immigration Division holds a hearing to determine whether the person is inadmissible. The hearing is adversarial — the Minister is a party represented by the CBSA; the person may be represented by counsel. The ID applies the civil standard of "reasonable grounds to believe" for most inadmissibility grounds.
If the ID finds the person inadmissible, it issues a removal order (departure order, exclusion order, or deportation order, depending on the ground).
Consequences of inadmissibility findings
- Departure order: the person must leave Canada within 30 days; if they comply, there is no prohibition on re-entry unless there is a separate bar
- Exclusion order: the person is excluded from Canada for 1 year (or 2 years for misrepresentation)
- Deportation order: the person is removed and requires written authority from the Minister to return to Canada at any time in the future
Remedies
An inadmissibility finding can be challenged by appeal to the Immigration Appeal Division (IAD) (for permanent residents and in some family class cases), or by judicial review in the Federal Court. Permanent residents subject to a serious criminality finding under s 36(1) may have their right of appeal to the IAD restricted.
Criminal rehabilitation
Persons inadmissible for criminality may be able to overcome inadmissibility by obtaining deemed or individual criminal rehabilitation. Deemed rehabilitation applies automatically after sufficient time has passed since the sentence was completed. Individual rehabilitation requires a formal application to IRCC.