Inadmissibility because of non-compliance with immigration law

Erik, a Citizen of Sweden, recently travelled to Canada as a visitor. While staying in Canada, he managed to secure a job. However, Erik never applied for a work permit and worked for a Canadian employer without authorization. He eventually left Canada when he realized his actions could result in inadmissibility because of non-compliance with immigration law. Erik wonders if leaving Canada could resolve his non-compliance.

What is non-compliance?

Generally speaking, non-compliance means breaking the Immigration Act (IRPA) and Regulations (IRPR) [Ref: A41]. Nonetheless, immigration authorities mainly consider the following issues as non-compliance [Ref: R228 & R229]:

• Not leaving Canada at the end of the authorization period as a temporary resident (not applicable to maintained status)
• Working or studying in Canada without authorization (not applicable if exempt from the requirements of work or study permit)
• Failing to appear for an admissibility hearing
• Trying to enter Canada while under a travel ban and not applying for an Authorization to Return to Canada
• Trying to enter Canada without a visitor visa or an eTA (depending on the exemptions from a TRV)
• Failing to comply with the restrictions as a designated foreign national
• Being subject to infractions of the Emergencies Act or the Quarantine Act
• Disobeying an order to attend an interview or presenting themselves for examination (the process for entering Canada)
• Failing to establish their purpose for entering Canada is to become a permanent resident (if they claim so)
• Failing to meet the residency obligations as a permanent resident

Other than the last bullet point, the issues only affect foreign nationals. Moreover, an officer may consider a person non-compliant for other reasons. However, they must show the matter is relevant to IRPA or IRPR.

The Standard and Burden of Proof

The Burden of Proof explains who must prove the non-compliance. In most cases, the burden of proof is on the enforcement or migration officer. The Standard of Proof means how strong the evidence must be to consider non-compliance. In these cases, the standard of proof is the “balance of probabilities.” I have explained these concepts in another article.

Where could the non-compliance occur?

Generally, non-compliance with the IRPA or IRPR occurs inside Canada or at a port of entry. Of course, many other reasons for inadmissibility could affect people both inside and outside Canada. However, we do not call them non-compliance as they have specific provisions—criminal or medical inadmissibility.

What are the consequences of non-compliance?

Non-compliance could result in a removal order. I have another article focusing on removal orders, but here is a brief reminder:

• Departure order: You must leave Canada but will not face a ban for returning to Canada because of this order. A departure order becomes deportation if you do not leave Canada within 30 days from the day of enforcement or do not report your departure to CBSA [Ref: R224].
• Exclusion order: You must not only leave Canada but face a travel ban to Canada for up to five years. Should you travel back during the travel ban, you must apply for an Authorization to Return to Canada (ARC) [Ref: R225].
• Deportation order: You will face an indefinite travel ban to Canada unless an officer approves your ARC application [Ref: R226].

The entities that mainly issue removal orders are IRB and CBSA. However, IRCC may rarely issue removal orders as well. The most common form of removal order for non-compliance is an exclusion order.

It is noteworthy that non-compliance could rarely result in jail time and fines. The provisions of IRPA that govern these circumstances are paragraph 124(1)(a) and section 125.

What if a person leaves Canada before facing the consequences of non-compliance?

Sometimes a non-compliant person leaves Canada before the authorities pursue them. Since the direct consequence of non-compliance is a removal order, this group usually won’t face any consequences. However, if they try to travel to Canada, receive a work or study permit, or immigrate to Canada, they could face one of the following complexities.

• Misrepresentation: An officer may conclude they have misrepresented in the past and make them inadmissible to Canada for five years.
• Refusal of the application: Despite not being inadmissible, the officer may still refuse their application for reasons such as potential non-compliance.
• Scrutiny of the application: The officer may eventually approve the application, but they may request more documents, invite the applicant to an interview, or delay the processing of the application.

In other words, although leaving Canada could resolve immediate inadmissibility, it doesn’t offer a risk-free solution. Please consult with a professional for official advice, though.

Let us help!

If you face non-compliance, inadmissibility or other issues, please complete the following form. We will likely ask you to book a consultation with me to investigate your matter further and offer potential solutions.