You applied for permanent residence as a family. One of you is the principal applicant, your spouse is listed as an accompanying family member, and your children are included in the same application.
Months into the wait, your spouse is charged with a criminal offence. It might be an argument that got out of hand, a driving matter, or a dispute at work.
The charge is against one person. The immigration consequences are not.
A charge is not a conviction, but it still matters
For offences committed in Canada, criminal inadmissibility under section 36 of the Immigration and Refugee Protection Act (IRPA) is triggered by a conviction, not by a charge. We explain that distinction in more detail in our post on being charged with a criminal offence as a visitor.
That does not mean the charge can be ignored. IRCC will generally not finalize a permanent residence application while a charge is outstanding against someone included in it. The file waits for the outcome, and the outcome decides what happens next.
Why one person’s conviction affects the whole family
Most Criminal Code offences are “hybrid,” meaning the Crown can prosecute them summarily or by indictment. For immigration purposes, paragraph 36(3)(a) of IRPA deems a hybrid offence to be indictable even if the Crown proceeds summarily. A foreign national convicted in Canada of a single hybrid offence is inadmissible for criminality under paragraph 36(2)(a). The sentence does not change that. A fine has the same effect as a jail term.
To be granted permanent residence, the applicant and their family members, whether accompanying or not, must not be inadmissible. Section 42 of IRPA goes further: a foreign national is inadmissible where their accompanying family member is inadmissible.
The result is that one conviction can lead to the refusal of the application for everyone included in it, including a principal applicant and children who had nothing to do with the incident.
Can we take my spouse off the application?
This is usually the first question, and the answer is usually no. The rule reaches family members who are not accompanying. Under section 23 of the Regulations, a non-accompanying spouse still counts unless the relationship has broken down in law or in fact.
A couple who have genuinely separated are in a different position, and that should be discussed with a lawyer. A separation that exists only on paper is not a solution. It is a misrepresentation under section 40, and it creates a second and more serious problem.
What about our work and study permits?
Here the rule is narrower. For temporary residents, a family member’s ordinary criminality does not make the rest of the family inadmissible. Subsection 42(2) limits that consequence to inadmissibility for security, human or international rights violations, sanctions, and organized criminality.
So a conviction would put the convicted person’s own status at risk, including any extension and the possibility of a removal order, but it would not by itself cancel a spouse’s work permit or a child’s study permit. A family can end up in a difficult middle position: still in Canada on temporary status, with the permanent residence route closed.
You have to tell IRCC
Applicants must answer truthfully and must keep their application accurate while it is being processed. A new criminal charge against anyone included in the application is a material change, and so is its outcome.
Staying quiet and hoping it is not noticed is a mistake. Criminality checks can be repeated before permanent residence is granted, and a fingerprint-based search will show the charge. Failing to disclose it can lead to a finding of misrepresentation, which carries a five-year bar of its own. That bar would apply even if the charge was later withdrawn.
Outcomes that protect the application
What matters is whether the criminal case ends in a conviction. These outcomes do not:
- charges withdrawn or stayed, including after diversion;
- an acquittal;
- a peace bond, with the charges withdrawn;
- an absolute or conditional discharge under section 730 of the Criminal Code.
These outcomes do: a fine, a suspended sentence with probation, a conditional sentence, or a term of imprisonment. We look at that difference in Fine or conditional discharge: why the lighter sentence can cost you your status.
If a conviction is entered in Canada, the usual route to overcoming it is a record suspension from the Parole Board of Canada, and the waiting period before an application can even be made is measured in years.
What to do now
Tell the defence lawyer about the immigration application before anything else happens. A resolution that is sensible for a citizen can be the wrong one for a permanent residence applicant.
Get immigration advice on each proposed resolution. The question to ask about any offer from the Crown is whether it results in a conviction.
Do not plead guilty simply to get it over with. If IRCC is waiting for the outcome in any event, speed usually gains the family nothing, and a quick plea can cost everything.
Follow every release condition. Breaching a release order is a separate hybrid offence, and a conviction for it carries the same consequences as a conviction for the original charge.
Keep everyone’s temporary status valid, and get advice before travelling.
If the person charged is the Canadian sponsor in a family sponsorship rather than an applicant, different rules apply, and you should get advice specific to that situation.
How we can help
At Kabir & Alam, we advise families with pending applications on the immigration consequences of criminal charges, and we work alongside criminal defence counsel so that those consequences are understood before any plea is entered. You can read more on our Inadmissibility & Criminal Rehabilitation page.
If someone in your application has been charged with an offence, book a consultation with us to discuss your situation.
Acting for someone in this situation? We prepare written immigration opinions for criminal defence counsel: see Immigration Opinion Letters for Criminal Defence Counsel.