Acta Universitatis Danubius. Juridica, Vol 13, No 1 (2017)

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 D. Mujuzi

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 granted 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 of a child directly affected.’ The 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 directly affected.’  Canada is a state party to the Convention on the Rights of the Child and Article 31(1) of CRC requires states to consider the best interests of the child as a primary consideration in all decisions 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) of the CRC has been invoked by 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, the best interests of the child have been considered in these decisions. However, there are numerous cases in which Article 31(1) of 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.

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