You served in your country’s armed forces, police, or civil service. You have never been charged with anything. You have a clean record and a strong application. Then IRCC sends a letter saying there are reasonable grounds to believe you may be inadmissible under section 35 of the Immigration and Refugee Protection Act, and asks you to respond.
For applicants from countries whose institutions have been the subject of human rights reporting, this letter has become increasingly common. It is not an accusation that you personally committed a crime. But it is serious, and how it is handled will decide the application.
What section 35 covers
Section 35 makes a person inadmissible to Canada on grounds of violating human or international rights. The three main branches are:
- 35(1)(a): Committing an act outside Canada that constitutes a war crime, a crime against humanity, or genocide. This includes complicity in such acts, which is where most cases involving former officials arise.
- 35(1)(b): Being a prescribed senior official in the service of a government that has engaged in terrorism, systematic or gross human rights violations, genocide, war crimes, or crimes against humanity. This applies to governments that Canada has designated, and to people who held senior positions in them.
- 35(1)(c): Being subject to sanctions imposed by Canada under certain statutes.
Each branch has its own test. The letter should tell you which one is being applied. If it does not, that is the first thing to establish.
Complicity: The question that matters most
Most section 35 concerns raised against former soldiers, police officers, and officials are framed as complicity in crimes committed by the organisation they belonged to. The legal test for complicity has been set by the Supreme Court of Canada, and it is narrower than it is sometimes applied.
Membership in an organisation that committed crimes is not enough. Serving in the same unit, region, or period is not enough. The officer must have reasonable grounds to believe that you made a voluntary, significant, and knowing contribution to the organisation’s crime or criminal purpose. The factors include the size and nature of the organisation, the part of it you belonged to, your rank and duties, how long you served, whether you had a real opportunity to leave, and what you knew about the crimes.
A response that establishes what you actually did, day to day, and shows the distance between your role and the conduct alleged, addresses the test directly. A response that simply denies wrongdoing does not.
Senior officials of designated regimes
The 35(1)(b) branch works differently. If a government has been designated by Canada, then a person who held a listed senior position in it is inadmissible regardless of what they personally did. The regulations set out the categories, which include heads of state, cabinet ministers, senior members of the public service, military and intelligence leadership, and ambassadors. Below those levels, the question is whether the person was able to exert significant influence on the exercise of government power.
The response in these cases is factual: showing that the position held was not in fact senior, that the person did not have the influence the title suggests, or that the period of service falls outside the designated dates.
What the letter is asking for
A procedural fairness letter on section 35 grounds will describe the concern, often by reference to a report about your organisation, and give you a deadline to respond. That deadline can sometimes be extended, but the request must be made early and with reasons. Our post on procedural fairness letters explains the general approach.
Your response should:
- set out your full service history, with documents: appointment letters, postings, discharge or retirement records, rank progression;
- describe your actual duties in each posting, in detail;
- address the specific allegations in the reports the officer is relying on, and explain where you were and what you were doing during the relevant events;
- provide statements from people who can corroborate your account;
- engage with the legal test, so that the officer is applying the right standard.
Where the officer has relied on a country report, obtain and read it. Reports often describe a unit or a period in general terms, and your response can show why those generalities do not apply to you.
If the finding is made
A section 35 finding is permanent inadmissibility. Unlike criminal inadmissibility, there is no rehabilitation and no passage of time that cures it. The remaining routes are a challenge in Federal Court on judicial review, or an application for ministerial relief, which asks the Minister of Public Safety to declare that your presence in Canada would not be detrimental to the national interest. Ministerial relief is discretionary and slow, and it is granted rarely.
That is why the response to the letter is the stage that matters. A finding is far easier to prevent than to undo.
Before you apply
If you served in an organisation that has been the subject of international reporting, address it before IRCC does. A well-documented service history and a clear account of your role, submitted with the original application, reduces the chance of a letter and strengthens the response if one arrives.
For the broader framework, see our inadmissibility and criminal rehabilitation page. If you have received a section 35 letter, or expect one, book a consultation with Kabir & Alam Lawyers.