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International Students, Criminality, and Immigration Status – a Few Points and Pointers

In the past year, one of the areas in which I have received the most inquiries and run the most consultations involves international students who have found themselves facing either criminal charges or dealing with the consequences arising from immigration investigations following charges/convictions.

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A Little Background – Crimigration Generally

I would be remiss if I did not point out first that my piece below will cover mainly practice/practical experience and tips that I would take if I were an international student or international adviser giving a talk to students on criminality and it’s possible consequences. I won’t be going into the details of the foundations of immigration consequences of criminality generally as I couldn’t do the topic full justice in one most.

I would strongly recommend reading this paper from my mentor Peter Edelmann, which subject to a few developments in the law around conditional sentence orders being held by the SCC not to be terms of imprisonment in the criminal admissibility context is still very valid today (http://pblsask.ca/imm_consequences_at_sentencing.doc).

Peter’s brilliant memos on criminality have helped a good number of criminal lawyers in their negotiations with Crown and their Court matters. I strongly encourage you reach out to him (peter@edelmann.ca) if you would like more advice on this.

I would also recommend reading the case he argued in front of the Supreme Court of Canada – R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 – with respect to sentence appeals and informed consent of immigration consequences.

The SCC held that  the accused must be aware of the nature of the allegations made against them, the effect of their plea and the consequences of their plea which include immigration consequences.

International Students – Things to Be Aware Of

Unlike other permanent residents and even temporary residents, there are several factors that make international students unique in the context of criminality and have direct impacts on their larger immigration status issues.

The Role of Studies Before, During, and After the Criminal Process

First, their studies heavily factor in. International students are required to actively-pursue studies and remain enrolled during the duration of their time on a study permit in Canada (R. 220.1 IRPR). The considerations for this are highly subjective, yet gratefully have been clarified recently by IRCC – see my past post on this issue.

From my experiences, individuals who come to the attention of IRCC through criminal charges are highly scrutinized for their past educational efforts (or lack thereof). Indeed, I have come across several Officer’s section 44 reports that flag this for review, even where charges were eventually resolved by way of discharge or a peace bond (i.e. where criminal admissibility cannot be made out).

Students who are having issues with the law should do what they can to stay in school. The criminal proceedings will inevitably have an affect on their ability to attend classes, but communication needs to be established with professors, instructors, and international student advisers to try and accommodate.

Even the conversion to part-time classes for one semester that is not a final semester or a failed class can be enough to trigger attention. These would seem to be very natural consequences of the stress of facing charges in Canada, particularly for many students who have never been in trouble with the law before.

At worst, an exclusion order can be issued for not actively-pursuing studies. At best, an international student’s eligibility for a post-graduate work permit which require full-time study throughout (other than last semester) gets thrown into the deep water.  Also, for international students not engaged as a full-time students when facing charges, it is not advisable to work as doing so may be in violation of your study permit conditions, another violation that could lead to an individual’s exclusion from Canada.

I find many international students are also not aware of some of the possible outs. Exceptions to actively-pursuing studies for family members (common-law partners/spouses) of study permit and work permit holders is not adequately canvassed. In fact, the practice of updating IRCC on changes in family make up during the time after a study permit is approved is not posted anywhere on the IRCC website nor done in practice by anyone, but a select few.

Similarly, applying for a visitor record while holding a study permit can be done in cases of leave yet I would argue that IRCC has not yet made clear how the simultaneous holding of both these permits affects the active-pursuing studies requirement.

Second, applications/efforts to seek re-entry or extend stays in Canada will come under increased scrutiny. I generally recommend individuals who are facing charges in Canada and/or are in the process of fighting those charges to stay in Canada and stay enrolled. Once a flag is placed on a file, the individual can be subject to deeper looks into their immigration histories when seeking re-entry, for example on a day trip to Seattle or a Spring Break trip back home.

What were accepted as mistakes and/or missed by visa offices on past applications can now become open ground for misrepresentation investigations. The breadth in which s.40 of IRPA is applied makes a mistaken question about whether you have been previously arrested or charged, refused an application, or even the organizations you were involved with in the past  is now an open season search effort. In my ideal world, every student who is currently charged with an offense and/or was recently acquitted would seek legal advice and review before filing their subsequent applications, especially if the proximity of time between the two is very short.

Another issue to flag is that communication and contact with IRCC/CBSA becomes even more important post-criminal charges laid. It is not uncommon for CBSA officers to want to interview you in advance of a decision on your criminal matter, as a bit of a check-in and file review. Warrants for arrest, leading to detention have been issued on the basis on failures to update home address properly with relevant authorities.

I am really opposed to the detention of international students for immigration violations, but unfortunately a lot of it spurs from communication issues that are entirely avoidable. It is much more advisable for both Client and the CBSA to have an interview and go through the admissibility process when the Client is not detained.

Putting international students who have never been arrested in their life, into cuffs and with general population can have scarring and traumatic effects. I have had to make more than a few referrals to psychologists on this basis. I think there is much more that can be done to create better and more accessible portals for home address changes, especially when students do not have access to their own MyCIC application accounts (an issue I have addressed many-a-times on this blog).

Pressure to Leave Canada On Own Accord – Either/Or Conundrum

In the inside Canada context, charges are not convictions. Only convictions render an applicant in admissible. Often times I find clients that contact me have not been advised enough of the immigration consequences by their criminal counsel. This is certainly area for continued collaboration between the two legal practices, especially where students and cognitive/mental health vulnerabilities are heightened and the uncertainty can have worse psychological effects. Family overseas often times are entirely kept in the dark, many time purposefully, by international students. Students often borrow money to try and pay for legal fees further creating a whole for themselves.

The other issue I have see is pressure from CBSA who in many cases will try to encourage individuals facing criminal charges to accept a lesser exclusion order and leave Canada. Many times the grounds for this are nefarious, at best, yet remain largely unchallenged administratively.

I personally would love CBSA to take a little more of a hands-off approach and let the Canadian Criminal Justice system play its course before intercepting. However, I can see why it is sometimes deemed beneficial to get a rid of a perceived problem and cost on the system from their perspective. International students are a dime a dozen from the system’s perspective – bad press, media, and lengthy trials – certainly aren’t.

The Value of a Letter to the Court/Crown from Immigration Counsel

One of the lesser known benefits immigration lawyers can provide to criminal counsel is, as discussed earlier, a legal opinion. I mentioned Peter’s opinions are in my biased opinion – the best in the business.

These opinions can set out the immigration consequences of finding an individual guilty. They can be especially crucial for international students where you can tie in the consequences on their inability to study if found inadmissible and their removal order enforceable (R.222(1)(b) IRPR).  In my own practice, I have been able to provide memos that once disclosed by Defense counsel to Crown started the resolution process early. Crown, especially for first time offenders on more minor charges, have been amenable to considering an absolute or conditional discharge, a peace bond, or even a stay – taking into consequences the vulnerability of their student status in Canada.

I am not a criminal lawyer myself and can only provide my ‘afar perspective.’ I tend to find the process more Crown-facing than immigration’s client-facing preparations (maybe if part of it is because we don’t usually have a physical face in immigration to talk to). I would provide some constructive feedback that my crimigration clients, especially those with language barriers, often find themselves a bit in the dark during the initial stages prior to trial. Here a collaborative approach may work and also where the use of interpreters at an additional cost becomes entirely worth the transparency of communication.

A Note on Sexwork

With the cost of tuition for international students rising astronomically and as well with a strong movement of women who are breaking the stigma and taboo of sex work as an illegitimate form of labour, it is not uncommon for international students to engage in this area. I won’t weight into the larger and very Vancouver debate over whether eliminating prostitution, regulating, or deregulating prostitution, is the best path forward but do note that it is very much in the post-Bedford atmosphere here.

Unfortunately, temporary status poses problems in this regard. Section 196.1 places a blanket restriction on foreign national entering into employment agreements with employers who offer sexual services:

Restrictions

 A foreign national must not enter into an employment agreement, or extend the term of an employment agreement, with an employer

  • (a) who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages; 

There is a current silence around self-employment (especially escort work) and occasional sex work and these are the gray areas in which this arguably cruel and unusual law operates. Furthermore, no direct link is made in section to work without a permit while a student which falls under R.186(v) which has no similar sex-work limiting provisions.

For international students, I have seen the actively pursuing studies provision as well as extension refusals targeted at those who engage in this work. The ‘bawdy houses’ are still very much being treated by enforcement officials in the immigration context as human trafficking hubs, somewhat contrary and different

This is an area I am increasingly interested in. Should you have or know of other international students who are struggling with the ways the laws are written and enforced around the ability to perform sex work while on a study permit or even as an international graduate please email me at will@edelmann.ca. I am currently awaiting a few stakeholder directions on where to direct further research in this area.

After Removal…. Coming Back to Canada

Depending on the outcome of the criminal trial, whether one is ultimately found criminally inadmissible and removed, the ability to return to Canada may vary. Rehabilitation may be available, as may deemed rehabilitation after a certain prescribed period has passed.

However, for those students removed on a finding of ‘not actively pursuing studies’ or ‘work without authorization’, the one year mark when the inadmissibility expires is not an automatic green light to return. Previous admissibility findings often lead to increased scrutiny on future temporary.

I would also familiarize myself with the Authorization to Return to Canada (“ARC”) provisions especially for those who are removed on a deportation order for serious criminality or on a five-year exclusion order for misrepresentation. I’ve done a deep dive post here.

Conclusion

In short, it is tough for an international student facing criminal charges. There’s a lot of uncertainty  and a lot of communication issues inherent in the process. Conversations between yourself and your criminal counsel, criminal counsel and immigration counsel, Crown and your criminal counsel, Crown and CBSA, and CBSA and yourself all may occur in this whirlwind of personal uncertainty.

You need good and effective counsel – and thankfully Vancouver has some of the best criminal lawyers in the country. Definitely get on top of things and organize for this process – put your relevant people in touch with each other. Failure to recognize your rights, reliefs, and the interplay of CBSA with the arresting authorities can lead to confusion, and possibly huge immigration consequences for international students.

Feel free to provide to email me if you have any questions arising from this post: will@edelmann.ca