theForum

Travel to Canada after conviction spent when eTA previously refused


https://forum.unlock.org.uk/Topic32116.aspx

By RMUK - 9 Jan 22 6:41 PM

I have just completed a community payback order in Scotland and due to the Rehabilitation of Offenders Act my convictions are now spent.
I am looking to travel to Canada on an eTA. I previously had the eTA refused a few years back when I applied while the convictions were still pending. The letter said I was inadmissible to Canada due to the crimes being Serious Offences under section 36 (b) of the Criminal Code of Canada.
Due to the Burgon case, am I able to reapply for the eTA and be deemed admissible due to the UK ROA? 
I have looked at the information on pages 8-10 of this document on the IRB website (Immigration and Refugee Board of Canada): https://irb.gc.ca/en/legal-policy/legal-concepts/Documents/SpoPar02_e.pdf
I can't find any concrete info on whether this always applies or not.
Does anyone have experience getting their eTA approved after being deemed rehabilitated due to the UK ROA 1974?
I would point out that in Scotland the convictions become spend directly at the end of the community payback/supervision order (which was 3 years), whereas in England the same sentence would require a further 12 months to be spent.

One thing of note, I am still on the SOR for another 2 years. I haven't had any issues with green notices though as I am deemed low risk.

@axel I am wondering if you can help as I saw you posted something similar in another thread? 
By AB2014 - 14 Aug 23 9:41 AM

RMUK - 11 Aug 23 2:16 PM
Just an update for information, in case anyone else is facing this same problem.

I applied for an eTA again this year, sending through a copy of my police certificate but also a copy of my CLEAN DBS certificate (disclosure scotland cert), and a long letter pointing out the relevent parts of canadian and UK legislation, but twice it got knocked back, even though my offence in canadian law amounts to "an offence which has a maximum penalty of  UP TO 10 years imprisonment".

The border officials kept rejecting my eTA under the reason that I have commited an offence which " has a maximum penalty of AT LEAST 10 years imprisonment". This is not correct, but as I reapplied for the eTA (you can do this as many times as you wish, paying the $7 each time and each application will be assessed on its own merit), they immediately knocked it back again with the same reason.

It seems that the eTA border officials are trained to be cautious and not look into the legislation. So I think my only option will be to hire a immigration lawyer and/or apply for a full visa in order to fully explain my situation. Applying for a visa costs $1000CAD so it's not something that I'm trivially going to try my luck with just now.

It might be that the Canadians are still referring to the ROA as it was when they passed their law. It might be that they use the law in England & Wales as that is where their high commission is and they're clearly not afraid of using the law to their advantage. On top of that, according to Unlock's information, they are no longer bound by the ROA, as a result of the Saini case. They can still say no after they have "looked at all the facts of the case", whatever that means.