BAAS

ARE UK REHABILITATION OF OFFENDERS ACT 1974 SPENT CONVICTIONS RECOGNIZED FOR PURPOSE OF IMMIGRATION?

Poppit

For Canada, yes!

Poppit

BAAS

And so no need for rehab?

BAAS

Hi Poppit,

So the rules are a little different for UK citizens? If my convictions are spent under ROA 1974 and although I have to declare them when applying for PR, will I be admissible because of ROA 1974 and if so, being admissible I do not need rehab?

Many thanks

Jim Humphries

The ROA will not have any effect on the immigration officer's decision. The same sort of decision may happen though, depending on the nature of the offenses. The ROA is UK law and not binding upon Canada.

BAAS

Hi Jim, can you shed any light in this then please


High Commission of Canada
Immigration Section
38 Grosvenor Street
London W1K 4AA
United Kingdom

30th April 2010

Dear Mr. Xxxxxxx

This is in reply to your application for criminal rehabilitation under Canada's Immigration and Refugee Protection Act. I am pleased to inform you that your application has been approved.

As your criminal conviction and sentence was incurred in the United Kingdom your case has been assessed under the UK Rehabilitation of Offenders Act 1974 in accordance with the Burgon case dated February 21, 1991 in the Federal Court of Appeal in Canada. The Rehabilitation of Offenders Act 1974 enables some criminal convictions to become 'spent'. or ignored, after a statutory time period. As per the Rehabilitation of Offenders Act 1974, no documentary evidence that the conviction is spent is issued by British authorities. As a result of the Canadian decision, you ceased to be inadmissible to Canada after the expiry of the statutory British waiting period following the date of the conviction........................................

Jim Humphries

This shows something that makes my point but of which I was unaware. There is now a Canadian precedent-setting Federal Court judgement that states that results of the UK ROA should be accepted. Prior to that judgement being set down the ROA had no effect, except as information. I like it because too many people get bogged down in their application for minor matters long passed. Thanks for posting that letter.

BAAS

Thanks Jim,

So given that this is the case, do you feel that as my convictions are spent under ROA 1974 (and confirmed as being so by a solicitors letter) and that Canada recognizes them as such and as set down above by the Canadian High Commission Immigration Section in London, I have ceased to be inadmissible after the statutory British waiting period following the date of my convictions?, and therefore;

1- I am admissible to Canada
2- There is no need for me to apply for Criminal Rehabilitation

Also, I am aware that I should still declare my convictions, do you think my ACPO and an official solicitors letter should suffice?

I should add that this letter was not addressed to me, but I have a facsimile of it and it is genuine and on official headed paper.......


Regards.

Poppit

Hi BAAS

My understanding is that you need to apply 'for information only', your convictions will be assessed and as long as they are deemed spent you will receive a letter similar to the one you posted.

My son's conviction was spent but we still had to complete the 'for info only' application in and provide all the necessary documentation; however, no cost is involved.

Poppit

BAAS

Thanks Poppit,

Is that 'need to' or only if im unsure?

Many thanks

PMM

Hi


One of the problems is that Burgon was decided under the previous Act, as she was reported under 19(1)(c). Here is what the Federal Court stated in Saini in regards to Burgon.

"C. The Burgon Case & Subsequent Jurisprudence

[10] With respect, we are of the view that the Motions Judge misinterpreted the principle established in Burgon. That case did not hold that Canadian immigration law is bound by any pardon in any foreign land with a legal system "somewhat similar" to ours. Before we proceed, we should review the Burgon case.

[11] Ms. Burgon was a British citizen who was sentenced to two years' probation following a plea of guilty to conspiracy to supply controlled drugs. Although she herself was involved in the conspiracy to a minor extent under the influence of her former husband and his associates, she co-operated with the police and helped to convict a ring of drug dealers. Soon after that, she remarried to a Canadian citizen, later came to Canada and eventually sought admission to Canada as a permanent resident. Immigration authorities declared that Ms. Burgon was an inadmissible person under paragraph 19(1)(c) of the Immigration Act, which was similar in effect to its successor, subparagraph 19(1)(c.1)(i), in that it denied admission to persons convicted of serious offences outside of Canada.


[12] However, under subsection 13(1) of the United Kingdom's Powers of Criminal Courts Act, 1973, U.K., 1973, c.62, a person sentenced to probation is expressly deemed not to be convicted:

13.(1) ... a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the preceding provisions of the Act [emphasis added].

There are several important points to emphasize here. First, Burgon unequivocally declared that "this Court is not required to go so far as to ‘attorn' to the law of all foreign jurisdictions" (at paragraph 40). The decision explicitly quoted and agreed with Justice Bora Laskin's comments in Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850 at 863, where he stated that the law of another country cannot be "controlling in relation to an inquiry about criminal convictions to determine whether immigration to Canada should be permitted". Thus, it is clear that Canadian immigration law governs whether a foreign discharge or pardon will be recognized, not any foreign law.


Ms Burgon received 2 years probation and so under UK law was not considered convicted. But if she had received a sentence of lets say one week, then she would have been considered convicted, and then could have been reported under the Immigration Act, if I read Burgon correctly.

BAAS

Hmm,

The letter I am referencing was issued to a guy who had a chrge of "Assualt" which normally but for the fact the crime was commited in the UK, would make him inadmissible to Canada under Section 36(1)(b) which is, on the grounds of serious criminality and; having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of of imprisonment of at least ten years.

On the other hand; Ms. Burgon was a British citizen who was sentenced to two years' probation following a plea of guilty to conspiracy to supply controlled drugs. Although she herself was involved in the conspiracy to a minor extent under the influence of her former husband and his associates, she co-operated with the police and helped to convict a ring of drug dealers. Soon after that, she remarried to a Canadian citizen, later came to Canada and eventually sought admission to Canada as a permanent resident. Immigration authorities declared that Ms. Burgon was an inadmissible person under paragraph 19(1)(c) of the Immigration Act, which was similar in effect to its successor, subparagraph 19(1)(c.1)(i), in that it denied admission to persons convicted of serious offences outside of Canada.

Two completely different cases and contraventions of the Immigration and Refugee Protection Act.

I take the letter to read that as per Burgon (but not solely pertaining to crimes and convictions of that kind), as stated a criminal conviction and sentence incurred in the United kingdom will be assessed under Rehabilitation of Offenders Act 1974, but also as stated, in Rehabilitation of Offenders Act 1974 only some criminal convictions can become spent (under the 5 year rule) and they are convictions of a jail term of 30 months or less and/or disposal of a sentence by means of probation/community service etc..................

Regards.

BAAS

Poppit,

Can you tell me what documentation you had to supply?

Thanks.

BAAS

Jim, can you give me more info on the Federal Court judgement.

Thanks.