An inadmissibility hearing can have serious consequences for your ability to enter or remain in Canada. If the Canada Border Services Agency (CBSA) believes that a permanent resident or foreign national is inadmissible under Canadian immigration laws, the matter may be referred to the Immigration Division (ID) of the Immigration and Refugee Board of Canada for a hearing.
The result can affect your immigration status and, in some cases, lead to a removal order requiring you to leave Canada. However, being called to an admissibility hearing does not mean that CBSA's allegations have already been proven. You have the opportunity to review the case against you, present evidence, call witnesses where appropriate, and challenge CBSA's position.
Understanding the admissibility hearing process early can make a significant difference in how you prepare your case.
What Is an Inadmissibility Hearing?
An inadmissibility hearing is a legal proceeding before the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB). Its purpose is to decide whether a permanent resident or foreign national is inadmissible to Canada under the Immigration and Refugee Protection Act (IRPA). The Immigration Division is independent of CBSA.
An admissibility hearing is not simply another immigration interview. It is an adversarial proceeding involving two opposing parties.
On one side is Minister's counsel, usually representing the Canada Border Services Agency. Minister's counsel presents the government's position and explains why CBSA believes the person is inadmissible.
On the other side is the person believed to be inadmissible and his or her counsel, if represented.
The ID member is the independent decision-maker. The member considers the evidence and legal arguments before making an admissibility decision.
Under amendments currently reflected in IRPA, the Immigration Division must not hold an admissibility hearing unless the permanent resident or foreign national who is the subject of the hearing is physically present in Canada.
Why Does CBSA Request an Inadmissibility Hearing?
CBSA may pursue an admissibility hearing when an officer believes there are grounds to conclude that a person has contravened the Immigration and Refugee Protection Act and the matter is referred to the Immigration Division. The hearing allows an independent IRB member to determine whether those allegations have been established.
The process often begins with an inadmissibility report under section 44 of IRPA. Depending on the person's status and the alleged ground of inadmissibility, the matter may then be referred to the Immigration Division for an admissibility hearing. In certain circumstances prescribed by the regulations, a removal order can instead be made without an Immigration Division hearing.
Before the hearing, CBSA should provide a package explaining why it believes the person is inadmissible and setting out the evidence it intends to rely on. The Immigration Division will also issue a Notice to Appear setting out the date and time of the hearing.
Common Reasons Someone May Be Found Inadmissible to Canada
Canadian immigration laws contain several grounds of inadmissibility. The exact legal test depends on the allegation, which is why the evidence and legal analysis in each case can look very different.
Common grounds include:
Criminal inadmissibility or serious criminality, including certain criminal convictions or conduct inside or outside Canada;
national security or other security concerns, including allegations that a person is a security threat;
involvement in organized crime;
violations of human or international rights;
misrepresentation, including providing false information, using fraudulent documents, or withholding material facts;
certain forms of medical inadmissibility;
financial inadmissibility;
failing to comply with requirements of IRPA; and
inadmissibility connected to certain family members.
The consequences depend heavily on the particular provision of the Refugee Protection Act, more accurately called the Immigration and Refugee Protection Act, that CBSA relies upon.
For example, a person with a criminal record should not assume that every criminal offence automatically makes them inadmissible. The nature of the offence, the Canadian equivalent, the sentence, the date of completion and whether criminal rehabilitation is available can all require careful legal analysis.
For more information, see our guide to criminal inadmissibility in Canada.
Similarly, a misrepresentation allegation is not simply about whether a statement was inaccurate. The legal issue includes whether the misrepresentation involved a material fact that induced or could have induced an error in the administration of IRPA. Read more about fighting immigration misrepresentation allegations.
What Happens During an Admissibility Hearing?
When the hearing begins, the ID member will generally introduce the participants, explain the procedure and confirm any interpretation requirements. Minister's counsel then presents CBSA's case, after which the person or their lawyer has an opportunity to respond.
The process typically involves:
The ID member opening the hearing and identifying the issues.
Minister's counsel explaining why the Border Services Agency CBSA says the person is inadmissible.
CBSA presenting documents, testimony or other evidence.
The person and their lawyer responding to the allegations.
Witnesses giving evidence, where necessary.
Questions from Minister's counsel, the person's counsel and potentially the ID member.
Legal submissions from the parties.
The member making an admissibility decision.
Most Immigration Division hearings are open to the public. Evidence, submissions and other information used during a public hearing can form part of the public record.
Although IRB hearings are generally scheduled virtually, the person who is the subject of the admissibility hearing must still be physically present in Canada.
What Evidence Is Used During an Inadmissibility Hearing?
Evidence at an inadmissibility hearing may include government records, immigration applications, criminal records, court documents, immigration forms, correspondence, travel history, previous statements, identity documents and witness testimony. The evidence required depends entirely on the allegation.
For example, a criminal inadmissibility case may involve court records and foreign criminal legislation. A misrepresentation case may focus on what was disclosed in an immigration application, whether information was inaccurate and whether the alleged omission involved material facts.
The person facing the allegation can also present evidence and call witnesses.
Under the Immigration Division's current guidance, documents generally must be provided to both CBSA and the ID at least five days before the hearing and must be in English or French. CBSA must likewise disclose the evidence it intends to use at least five days before the hearing. Witness information must generally also be provided at least five days in advance.
A lawyer should review all the evidence, not just the documents that initially appear damaging. Sometimes the real issue is whether CBSA can prove a particular element of the statutory test.
What Are the Possible Outcomes of an Inadmissibility Hearing?
The two central possible outcomes are that the ID finds the person inadmissible or finds that CBSA has not established inadmissibility. If the person is found inadmissible, the Immigration Division may make the applicable removal order. If CBSA does not establish its case, the person receives a favourable or positive decision on the inadmissibility allegation.
There are three main types of removal orders under Canada's immigration framework:
a departure order;
an exclusion order; and
a deportation order.
Which removal order applies depends on the person's status and the ground of inadmissibility. A deportation order, for example, can arise in cases involving serious criminality, criminality, organized criminality and certain other grounds.
A finding of inadmissibility can have consequences far beyond the immediate hearing. It can affect a person's ability to remain in Canada, pursue another immigration application or later enter Canada again.
Preparation Strategies for Winning an Inadmissibility Hearing
There is no formula that guarantees a particular result at a Canada admissibility hearing. Effective preparation means identifying exactly what CBSA must prove, reviewing its evidence critically and building a response around the actual legal test rather than simply providing a general explanation.
Important preparation steps include:
Identify the exact allegation. Determine the section of IRPA under which CBSA alleges inadmissibility.
Review CBSA's disclosure carefully. Look for factual errors, missing documents, assumptions and inconsistencies.
Understand the legal test. Criminal inadmissibility, misrepresentation, security inadmissibility and medical inadmissibility involve very different legal questions.
Collect the right evidence. More evidence is not necessarily better. The evidence should address the elements that the ID member actually has to decide.
Prepare for testimony. If you will testify, you should understand your documents and be prepared to answer questions clearly and truthfully.
Consider witnesses strategically. A witness should have relevant evidence to offer rather than simply repeating information already contained in the record.
Address procedural issues early. Interpreter requests, disclosure concerns or requests involving how the hearing will proceed should not be left until the hearing date.
Good preparation is particularly important where the allegations involve serious criminal offences, organized crime, security concerns or alleged human rights violations, because the consequences can include loss of permanent resident status and removal from Canada.
Can You Appeal an Inadmissibility Decision?
Sometimes. A person who receives a removal order after an inadmissibility hearing may have a right of appeal to the Immigration Appeal Division (IAD), while others may need to challenge the decision through an application for judicial review at the Federal Court. Appeal rights depend on the person's status and the ground of inadmissibility.
Under IRPA, a permanent resident, protected person or foreign national holding a permanent resident visa may have a right to appeal a removal order to the Immigration Appeal Division IAD. However, section 64 removes IAD appeal rights for findings based on security, violations of human or international rights, sanctions, serious criminality and organized criminality.
Where an IAD appeal is available, the appeal process can be broader than the original admissibility hearing. In appropriate cases, the IAD can consider humanitarian and compassionate factors, including the best interests of a child directly affected, when deciding whether special relief is warranted. Those compassionate factors generally belong to the IAD appeal analysis, not to the ID's initial determination of whether the legal ground of inadmissibility has been established.
Where there is no IAD appeal, or where the issue concerns a reviewable legal or procedural error, the person may be able to seek judicial review in the Federal Court. Federal Court proceedings have strict deadlines, so legal advice should be obtained quickly.
Learn more about Immigration Appeal Division and Federal Court proceedings.
Why Legal Representation Matters at an Inadmissibility Hearing
An inadmissibility hearing can determine whether someone keeps their status in Canada or faces removal. The case may turn on technical statutory language, the interpretation of a foreign criminal offence, the reliability of government evidence or whether CBSA has proven every part of the alleged ground of inadmissibility.
Experienced immigration counsel can review the CBSA report and disclosure, identify weaknesses in the government's case, prepare documentary evidence and witnesses, question witnesses at the hearing and make legal submissions to the ID member.
Just as importantly, counsel can look beyond the hearing itself. If a person is found inadmissible, a lawyer can immediately assess appeal rights, whether an IAD appeal is available, whether to seek judicial review at the Federal Court and what other immigration remedies may remain.
If you have received a Notice to Appear for an inadmissibility hearing, it is important to understand the allegations and your options before the hearing date. You can book a consultation with AKM Law to discuss the evidence, the applicable immigration laws and the best way to prepare.
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 "How an Immigration Lawyer Can Help with a CBSA Removal Order Interview")
 "Grounds for Inadmissibility to Canada")
 "Common Reasons for Temporary Resident Visa Refusals in Canada")
