CIMM - Admissibility - Mar 10, 2021

Key Messages

• Visitors holding Hong Kong Special Administrative Region or British National Overseas passports are visa-exempt and need an electronic travel authorization before travelling to Canada.
• Under the Immigration and Refugee Protection Act, foreign nationals charged or convicted of a crime may be inadmissible to Canada and may be refused a visa, electronic travel authorization or entry to Canada.
• However, foreign nationals who are charged or convicted of an offence outside Canada are not automatically barred from entering or remaining in Canada.
• Inadmissibility decisions are made on a case-by-case basis. Foreign convictions are examined to see whether the act committed would have been an offence under Canadian laws if they had occurred in Canada.

Supplementary Messages

• Generally speaking, for crimes committed outside Canada, an immigration officer must determine whether that same act—if it occurred in Canada—would be considered a crime in Canada. For example, a person who was arrested or charged for peacefully demonstrating or being at a protest would not be inadmissible as these actions are not crimes in Canada.
• However, if the demonstrations were violent or there is evidence of damage or injury, such acts would be a crime under Canadian law and the person could be found inadmissible for criminality under the Immigration and Refugee Protection Act.
• A foreign national who was charged or convicted for subversion outside Canada would be examined for possible inadmissibility on both criminality grounds as well as security grounds. However, simply being charged or convicted for subversion may not, in itself, constitute sufficient evidence to meet the threshold to be inadmissible on security grounds due to subversion.
• Immigration officers must examine the circumstances and base their inadmissibility decision on evidence, such as police reports, newspaper clippings, court records or statutory declarations.
• The visa exemption for Hong Kong passport holders is not currently under review. British National Overseas and Hong Kong Special Administrative Region (HKSAR) passports continue to be recognized travel documents for entering Canada.

Supporting Facts and Figures

Visa Policy

• Holders of HKSAR passports and British National Overseas passports must obtain an electronic travel authorization (eTA) before flying to Canada.
• In 2020, IRCC issued 11,116 eTAs to holders of HKSAR passports and holders of British National Overseas passports. This compares to 63,070 eTAs issued to the same population in 2019.
• Between July 1, 2020 (i.e. after the National Security Law came into effect) and January 31, 2021, IRCC issued over 2,400 eTAs to holders of HKSAR passports, compared to over 33,200 eTAs issued between July 1, 2019 and January 31, 2020 (roughly 93% decrease).
  • Note: COVID-related travel restrictions meant current inability for eTAs to be used by many individuals while border and travel restrictions remain in place.

Foreign travel documents

• British National Overseas (Hong Kong) passport
  • These are issued by the Government of the United Kingdom to permanent residents of Hong Kong before the United Kingdom’s handover of the city to China on 30 June 1997.
• Hong Kong Special Administrative Region (HKSAR) passport
  • These are issued by the Immigration Department of the Government of Hong Kong under the authorization of the Central People’s Government of the People’s Republic of China to permanent residents of Hong Kong and who hold Chinese citizenship.
  • Mainland Chinese nationals must reside in Hong Kong for seven years to become permanent residents of Hong Kong.

Background

National Security Law

• On June 30, 2020, China passed the controversial “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region,” generally referred to as the National Security Law. The broadly-worded law criminalizes secession, subversion, terrorism and colluding with foreign forces. The law also granted jurisdiction over some cases to mainland authorities, meaning some cases may be tried and sentences served in the mainland.
• While offences similar to subversion, terrorism and colluding with foreign forces also exist in Canada, these laws exist within the Canadian context. The activities in question are always assessed from a Canadian perspective and informed by our laws and our Charter of Rights and Freedoms.
• According to reporting, since the law was passed, authorities have conducted several waves of arrests of opposition activists, human rights defenders and members of the media.

Criminal inadmissibility outside Canada

• Canadian immigration officers consider applications on a case-by-case basis. Being part of the previously mentioned mass arrests in Hong Kong would not automatically lead an immigration officer to approve or refuse an application to Canada.
• Foreign nationals are inadmissible to Canada if:
  • they were convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or convicted of two offences from separate occurrences, that, if committed in Canada would constitute offences under an Act of Parliament; or
  • they commit 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 (pursuant to section 36 of the Immigration and Refugee Protection Act).
• Permanent residents would be inadmissible if they were convicted or committed an act outside Canada that is an offence where it was committed if the underlying act would constitute an offence in Canada under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years (pursuant to subsection 36(1) of the Immigration and Refugee Protection Act).
• A person may also be ineligible to claim asylum in Canada due to serious criminality outside Canada. This means that a person is ineligible to make a refugee claim if convicted of an offence that, if the act were committed in Canada, would be an offence under an Act of Parliament punishable by a term of imprisonment of at least 10 years (pursuant to paragraph 101(1)(f) of the Immigration and Refugee Protection Act).

Criminal inadmissibility due to subversion

• Where there are some similarities between the foreign law and Canadian law, a person would only be inadmissible if the underlying action is considered an offence in Canada. [Redacted] Acts that are considered subversion in Hong Kong but do not equate to an offence if committed in Canada would not render an individual inadmissible pursuant to section 36 of the Immigration and Refugee Protection Act.
• However, a person who used force to achieve a government change outside Canada might be inadmissible for serious criminality as such an act is an offence both in Canada (under sedition section 59 of the Criminal Code) and under the Hong Kong National Security Law (under subversion article 22).

Subversion and inadmissibility on security grounds

• A permanent resident or foreign national is inadmissible to Canada on security grounds for engaging in or instigating the subversion by force of any government, or engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada (pursuant to subsections 34(b) and (b.1) of the Immigration and Refugee Protection Act).
• There is no precise definition of “subversion” in the Immigration and Refugee Protection Act. Jurisprudence indicates that using force or the threat to use violent means with the goal of overthrowing any democratic government amounts to subversion by force. Subversion by force includes coercion or compulsion by violent means, coercion or compulsion by threats to use violent means, and reasonably perceived potential for the use of coercion by violent means.

Temporary resident permits

• Temporary resident permits may be issued to an inadmissible foreign national when an officer is of the opinion it is justified in the circumstances. Such permits may be cancelled at any time.
• A temporary resident permit carries a $200 processing fee, can be valid for up to three years but is usually issued for the length of a person’s intended stay in Canada.

Visa policy

• Individuals holding HKSAR and British National Overseas passports have visa-free access to Canada and have historically been considered low-risk from both a program integrity and a public safety perspective.
  • On January 29, 2021, China and Hong Kong announced they would no longer recognize the British National Overseas passport as a valid travel document or proof of identity, and it can no longer be used for immigration clearance in Hong Kong. It is unclear what these declarations mean in practical terms, as Hong Kong residents may continue to use their HKSAR passport or Hong Kong Permanent Identity Card to enter and leave the territory.
• Since 2015, these visa-exempt individuals can fly to Canada on an electronic travel authorization (a light touch pre-travel screening that is largely automated). They also continue to enter from the U.S. via the land border without pre-travel screening.
• However, mainland Chinese nationals require a temporary resident visa and must provide comprehensive information about themselves and their purpose of travel, and submit their passport and biometrics (photo, fingerprints).
• Canada reserves the right to change the visa requirement if conditions change and the risk of visa-free access is determined to be unsustainable.