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Travel to Canada after conviction spent when eTA previously refused

RMUK — Mon, 14 Aug 2023 09:41:05 GMT

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?

RE: Travel to Canada after conviction spent when eTA previously refused

AB2014 — Mon, 14 Aug 2023 09:41:05 GMT

[quote]

[b]RMUK - 11 Aug 23 2:16 PM[/b]

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.

[/quote]

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.

RE: Travel to Canada after conviction spent when eTA previously refused

RMUK — Fri, 11 Aug 2023 14:16:35 GMT

RE: Travel to Canada after conviction spent when eTA previously refused

AB2014 — Wed, 22 Jun 2022 14:03:34 GMT

[quote]

[b]RMUK - 21 Jun 22 4:58 PM[/b]

@AB2014

I have read information from canada website about Deemed Rehabilitation but I cannot figure out if I need to apply for this (or even for the information-only one) if I am trying to claim entry under the UK ROA, or if I should reapply for an eTA and select "yes" to the question of convictions. I have had an eTA refused before so I don't know if is automatically refused in that case.

It's all very confusing.

All the "Deemed Rehabilitation" stuff seems to refer to the canadian process where they assess you under their own criteria, as they do for nationals of every other country. But for UK Nationals, I am confused as to whether this actually applies or if it is bypassed based on the UK legislation.

Any help would be much appreciated.

[/quote]

As I understand it, if you are deemed rehabilitated then you are no longer criminally inadmissible. It depends mostly on whether your convcition is spent, but also partly on what the maximum sentence would have been in Canada. According to Unlock's information, there is a process where you can ask the Canadian High Commission whether you are deemed rehabilitated. If you fill in the application form and tick the box marked "for information only", you won't have to pay the fee but you will still get an answer.

I can't be sure, but I'm guessing that the way these things usually go is that once you're turned down for an eTA, you won't get one, but at some point you might get a visa. So, if they tell you that you are now deemed rehabilitated, then you might still have to apply for a visa.

It has just occurred to me that as you are in Scotland, the Rehabilitation of Offenders Act has been updated/replaced, so your conviction might become spent sooner than it would in England, under the law here, which is the one they specify. That might still be an issue, depending on the details.

RE: Travel to Canada after conviction spent when eTA previously refused

RMUK — Tue, 21 Jun 2022 16:58:36 GMT

RE: Travel to Canada after conviction spent when eTA previously refused

AB2014 — Mon, 10 Jan 2022 14:30:47 GMT

[quote]

[b]RMUK - 9 Jan 22 6:41 PM[/b]

[/quote]

You probably know this already, but Unlock's advice on travel to Canada is very helpful. In addition to the Burgon case, there is the Saini case, which allows Canadian Border Control to disregard the Rehabilitation of Offenders Act when looking at the full facts of the case. Unfortunately, the links from Unlock's page to a couple of letters don't work anymore, but I seem to remember that there was a suggestion that Canadian law refers to the ROA in its original form. In any case, in the section on "Deemed rehabilitation", it says that you can ask the Canadian High Commission whether you are deemed rehabilitated, so you could always follow that process. I don't know if the minimum time period for deemed rehabilitation has passed since your date of conviction.