The 'Best Interests of the Child' as a Factor in Allowing Foreigners with Criminal Records to Enter Canada and in Staying the Deportation of Foreign National Offenders from Canada

• Author: Jamil Ddamulira Mujuzi
• Position: Professor of Law, PhD, Faculty of Law, University of the Western Cape, South Africa
• Pages: 163-185

JURIDICA

163

The “Best Interests of the Child” as a

Factor in Allowing Foreigners with

Criminal Records to Enter Canada and in

Staying the Deportation of Foreign

National Offenders from Canada

Jamil Ddamulira MUJUZI

1

Abstract: The Canadian Immigration and Refugee Protection Act provides that one of the objectives

of immigration is “to see that families are reunited in Canada.” The Act provides further that a foreign

national with a criminal record for having committed an offence in a foreign country may be gr anted

a visa to enter Canada if “it is justified by humanitarian and compassionate considerations relating to

the foreign national, taking into account the best interests o f a child directly affected.” Th e

deportation of foreign nationals who have been convicted of offences in Canada may be delayed or

cancelled if “it is justified by humanitarian and compassionate considerations relating to the foreign

national, taking into account the best interests of a child d irectly affected.” Canada is a State P arty to

the Convention on the Rights of the Child and Article 31(1) of th e CRC requires states to consider the

best interests of the child as a primary consideration in all d ecisions affecting children. Jurisprudence

emanating from Canadian quasi-judicial and judicial bodies shows that although there is not a single

case in which Article 31(1) o f the CRC has been invoked by the courts or the Immigration Appeals

Division, in cases involving children, in assessing whether a person who has been convicted of an

offence should be granted a visa to travel to Canada or should not be deported from Canada, th e best

interests of the child have been considered in these decisions. However, there are numerous cases in

which Article 31(1) of the CRC has been considered, including in cases whether a parent should be

recognised as a refugee in Canada. The purpose of this article is to demonstrate how courts or quasi-

judicial bodies have invoked the best interests of the child in deciding whether or not a visa should be

granted to an adult with a criminal record to enter Canada or the deportation of a foreign national who

has been convicted of an offence to be stayed or cancelled.

Keywords: The Canadian Immigration and Refugee Protection Act; th e Convention on the Rights of

the Child; the Immigration Appeals Division; deportation of a foreign national

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Professor of Law, PhD, Faculty of Law, University of the Western Cape, South Africa, Address:

Private Bag X17, Bellville, 7535, South Africa, Corresponding author: djmujuzi@gmail.com.

AUDJ, vol. 13, no. 1/2017, pp. 163-185

ACTA UNIVERSITATIS DANUBIUS Vol. 13, no. 1/2017

164

1. Introduction

The Canadian Immigration and Refugee Protection Act

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provides for different

categories of foreign nationals or permanent residents who are inadmissible in

Canada. These grounds include security (if the individual poses a security threat to

Canada)

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, violating human or international rights

3

, serious criminality

4

,

criminality

5

, organised criminality

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, health grounds

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, financial reasons

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, or

misrepresentation

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. There are many foreign nationals in Canada

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. Some of them

have been convicted of offences in Canada. A foreign national convicted of a

serious offence in Canada has either to be deported or transferred to serve part of

his sentence in his country of nationality.

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Deporting a foreign national who has

children in Canada may mean leaving those children behind. Denying a foreign

national who has children in Canada a visa to enter Canada may also mean that he

will not be able to live with his children in Canada. However, the Canadian Federal

Court held that “[s]erious criminals are subject to removal without discrimination

no matter their race, national or ethnic origin, colour, religion, sex, age or mental

physical disability…[T]he removal of those convicted of serious criminality did not

engage section 7 of the Charter…The same holds true with respect to section 15.”

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The Immigration and Refugee Protection Act provides that one of the objectives of

immigration is “to see that families are reunited in Canada.”

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The Act provides

that a foreign national with a criminal record for having committed an offence in a

foreign country may be granted a visa to enter Canada if “it is justified by

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Immigration and Refugee Protection Act S.C. 2001, c. 27.

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Section 34(1). See generally Haqi v. Canad a (Public Safety and Emergency Preparedness), 2014 FC

1246 (CanLII).

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Section 35.

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Section 36(1).

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Section 36(2).

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Section 37. See Venidas Patel v. Canada (Public Safety and Emergenc y Preparedness), 2007 CanLII

70651 (CA IRB) (where the appellant’s deportation was ordered on th is ground because he was

involved in the smuggling of people to the United States).

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Section 38.

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Section 39.

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Section 40.

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Statistics Canada, “Foreign nationals working temporarily in Canada”

http://www.statcan.gc.ca/pub/11-008-x/2010002/article/11166-eng.htm.

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See generally (Mujuzi, 2014, pp. 120-154).

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Monge Monge v. Canada (Minister of Publi c Safety and Emergency Preparedness), (2010) 3 FCR

291, 2009 FC 809 (CanLII) para 36 . See also Martin v. Canada (Minister of Citizenship and

Immigration), 2005 FCA 347 (CanLII) para 4 (the appellant abandoned the human rights argument

under section 7 because it was bound to fail).

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Section 3(1)(d).