Why overstay in UK is considered as criminal offense fo spouse visa to Canada ?

[Vaish00]

Why overstay in UK is considered as criminal offense for spouse visa to Canada ?

 

[Bs65]

You might need to provide a few more details for anyone to comment like what type of visa was the individual on in the UK, did the person have any formal dealings with UK immigration re the overstay or did they just overstay and leave voluntarily without any interaction with UK immigration ?

 

[Vaish00]

He was a student in U.K. from Sep 2008-oct 2011)

In October 2011, he has applied bridging visa because his final exams will conclude in November 2011 and results will arrive in January 2012 unfortunately that bridging visa got refused in December 2011 due to missing documents

So He has applied for appeals in December 2011 with missing documents.

In January 2012, he got his final bachelor results and eligible to apply for Post study work (PSW) visa before that routes closed down in April 2012.

So his solicitor put Another fresh application for PSW on 7th February 2012 ( after sending notification to court via fax that we are withdrawing the appeal) unfortunately court doesn't noticed and send the appeal refusal letter on 22nd February 2012.

After the appeal refusal we didn't take any action against it though we had a chance. We believed the new application might save us!!

In the main time, the new application (PSW) took a lot time for the reply

New applications (PSW) results arrived in June 2012, states that your new application is not considered because you have outstanding appeal in process..(Appeal chapter is finished in February 2012 )

he was so fed up and depressed at the time no avail for spending so much money to solicitors. His only intention was to take little work experience in U.K. But unfortunately that didn't work out...

He finally came down to his country within 28 days of appeal statuary period that means in July 2012. (Own voluntary return /own flights tickets /no deportation/ no warning or remarks)

 

[Vaish00]

This exactly He received from Canadian embassy from Srilanka

I am in the process of assessing your application and it appears that you may not qualify for Immigration to Canada as a member of the family class.

You have provided copies of your UK visa and entry/exit stamps to and from the UK. In the letter that you have provided you had status in the UK only until Oct 11. However, you have left the country in july 2012. You have also stated that your student visa is refused in dec 11 and appeal was refused in feb 12. As per section 24(1) (b) (1) of UK’s immigration act 1971 it is an offence to remain in the UK beyond the time limited by leave.

Section ​29 (2) of the IRPA stipulate that a temporary resident must comply with any condition imposed under the regulation and act and must leave Canada by the end of the period authorized for their stay. Under section 41 (a) a person is inadmissible for failing to comply with this act in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this act.
Under section 124 (1) (a) of IRPA, every person commits an offence who contravenes a provision of this acts for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this acts.

As per section 125 (a) a person who commits an offence under subsection 124 (1) is liable on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years or to both. It appears, therefore, you are inadmissible on grounds of criminality under S36 (2) (c) of IRPA for committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, Would constitute an indictable offence under an Act of Parliament.
I would like to provide you with the opportunity to respond to this information. You will have 30 days from the date of this letter to submit additional information in this regard. If you do not respond to this request within 30days, your application will assessed based on the information currently on the file any may result in the refusal of your application.

Now He has sent tbe additional documents with personal statement in March 2016...No reply till now
Medical got expired in June 2016 / no remedial request or no updates yet

 

[profiler]

This exactly He received from Canadian embassy from Srilanka

I am in the process of assessing your application and it appears that you may not qualify for Immigration to Canada as a member of the family class.

You have provided copies of your UK visa and entry/exit stamps to and from the UK. In the letter that you have provided you had status in the UK only until Oct 11. However, you have left the country in july 2012. You have also stated that your student visa is refused in dec 11 and appeal was refused in feb 12. As per section 24(1) (b) (1) of UK’s immigration act 1971 it is an offence to remain in the UK beyond the time limited by leave.

Section ​29 (2) of the IRPA stipulate that a temporary resident must comply with any condition imposed under the regulation and act and must leave Canada by the end of the period authorized for their stay. Under section 41 (a) a person is inadmissible for failing to comply with this act in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this act.
Under section 124 (1) (a) of IRPA, every person commits an offence who contravenes a provision of this acts for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this acts.

As per section 125 (a) a person who commits an offence under subsection 124 (1) is liable on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years or to both. It appears, therefore, you are inadmissible on grounds of criminality under S36 (2) (c) of IRPA for committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, Would constitute an indictable offence under an Act of Parliament.
I would like to provide you with the opportunity to respond to this information. You will have 30 days from the date of this letter to submit additional information in this regard. If you do not respond to this request within 30days, your application will assessed based on the information currently on the file any may result in the refusal of your application.

Now He has sent tbe additional documents with personal statement in March 2016...No reply till now
Medical got expired in June 2016 / no remedial request or no updates yet

So, the letter states clearly why. It's the same situation if someone got a DUI and tried to enter Canada.

They look at criminal past, and if they find anything, try to liken the crime(s) to laws of Canada. If there is a connection (same laws) then they assess the penalty.

You(r friend) committed a crime, which if happened in Canada would result in an indictment. That's serious and therefore he was refused.

 

[Vaish00]

So, the letter states clearly why. It's the same situation if someone got a DUI and tried to enter Canada.

They look at criminal past, and if they find anything, try to liken the crime(s) to laws of Canada. If there is a connection (same laws) then they assess the penalty.

You(r friend) committed a crime, which if happened in Canada would result in an indictment. That's serious and therefore he was refused.

That's my question is?? Why Canadian Embassy considered that its an over stay??
he has applied the application prior to expiry of his original visa expires...so he is technically not an over stayer!!! Same rules in Canada too Eg- implied status

So why UkBA never accept any application before the visa expiry date !!!!

 

[Bcboundboy]

That's my question is?? Why Canadian Embassy considered that its an over stay??
he has applied the application prior to expiry of his original visa expires...so he is technically not an over stayer!!! Same rules in Canada too Eg- implied status

So why UkBA never accept any application before the visa expiry date !!!!

Because the information you've provided to them is that he illegally overstayed (which is a criminal offence, and even if it weren't a serious offence, failure to meet immigration requirements isn't a good sign to an immigration department).

You've told CIC that he had status until Oct 2011, appealed, was refused in Feb 2012, and exit stamp says he left in July 2012.

If you want CIC to not think he committed an immigration offence, you'll need to prove to them that he had status during the 5-9 months that it looks to them like he was in the country illegally.

 

[Buletruck]

You've told CIC that he had status until Oct 2011, appealed, was refused in Feb 2012, and exit stamp says he left in July 2012.

You also withdrew your appeal in February, which I would assume would negate his "implied status" from the date on the letter of withdrawal. Your re-submission in February would have been done after his status expired in October. Even with the new application, he was out of status and thus illegal in the UK at the time he applied.

 

[Aquakitty]

Hmm, this is interesting to me. Is he applying to Canada under family class? Because there are many people who live in Canada illegally but still get their PR, so why is it worse in this situation? If he was not arrested and deported, why does Canada consider this an offence? Is it on his record?

I won't comment on the UK issues as I have little knowledge of their processes.

 

[Buletruck]

Because there are many people who live in Canada illegally but still get their PR, so why is it worse in this situation?

Interesting point. Does IRCC giving him the opportunity to respond indicate they are "on the fence" with the decision, or is that just standard fare?

 

[Ponga]

This doesn't make sense.

The rules are supposed to be that if the same offense/crime translated to Canadian law would make the foreign national inadmissible, it would be a problem. While a DUI is certainly something that would apply, an overstay should NOT, since many people here have applied while being out of status in Canada (overstay) and been approved.

 

[profiler]

This doesn't make sense.

The rules are supposed to be that if the same offense/crime translated to Canadian law would make the foreign national inadmissible, it would be a problem. While a DUI is certainly something that would apply, an overstay should NOT, since many people here have applied while being out of status in Canada (overstay) and been approved.

My $0.05 here is that Public Policy is a courtesy to the sponsor I think...

 

[canadianwoman]

Try ordering your GCMS notes to see what is going on. They should have replied by now with a rejection or acceptance letter, which makes me wonder if it was lost in the mail, or email system.

It is possible that you could have answered the visa officer's concerns by pointing out that he had an application for a PSW during the time in question, and so while waiting for the answer was under implied status. Or that he thought he was under implied status.

I really think you need an immigration lawyer to help with this. Even if he is rejected for criminality, he can still be sponsored - but he may have to wait.

 

[Vaish00]

Try ordering your GCMS notes to see what is going on. They should have replied by now with a rejection or acceptance letter, which makes me wonder if it was lost in the mail, or email system.

It is possible that you could have answered the visa officer's concerns by pointing out that he had an application for a PSW during the time in question, and so while waiting for the answer was under implied status. Or that he thought he was under implied status.

I really think you need an immigration lawyer to help with this. Even if he is rejected for criminality, he can still be sponsored - but he may have to wait.

He had order GCMS note in August 2016,

Sponsored- Passed (Spouse Canada)

Applicant Eligibility- Passed
Medical- Passed
Criminality- Pending
Security- pending

 

[Vaish00]

Hmm, this is interesting to me. Is he applying to Canada under family class? Because there are many people who live in Canada illegally but still get their PR, so why is it worse in this situation? If he was not arrested and deported, why does Canada consider this an offence? Is it on his record?

I won't comment on the UK issues as I have little knowledge of their processes.

There is no exit stamp as such UK Airport normally do to people!!!

There is only prove that his home country arrival stamp in July 2012!