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

The Canadian Immigration and Refugee Protection Act provides that one of the objectives
\nof immigration is “to see that families are reunited in Canada.” The Act provides further that a foreign
\nnational with a criminal record for having committed an offence in a foreign country may be granted a
\nvisa to enter Canada if “it is justified by humanitarian and compassionate considerations relating to the
\nforeign national, taking into account the best interests of a child directly affected.” The deportation of
\nforeign nationals who have been convicted of offences in Canada may be delayed or cancelled if “it is
\njustified by humanitarian and compassionate considerations relating to the foreign national, taking into
\naccount the best interests of a child directly affected.” Canada is a State Party to the Convention on the
\nRights of the Child and Article 31(1) of the CRC requires states to consider the best interests of the
\nchild as a primary consideration in all decisions affecting children. Jurisprudence emanating from
\nCanadian quasi-judicial and judicial bodies shows that although there is not a single case in which
\nArticle 31(1) of the CRC has been invoked by the courts or the Immigration Appeals Division, in cases
\ninvolving children, in assessing whether a person who has been convicted of an offence should be
\ngranted a visa to travel to Canada or should not be deported from Canada, the best interests of the child
\nhave been considered in these decisions. However, there are numerous cases in which Article 31(1) of
\nthe CRC has been considered, including in cases whether a parent should be recognised as a refugee in
\nCanada. The purpose of this article is to demonstrate how courts or quasi-judicial bodies have invoked
\nthe best interests of the child in deciding whether or not a visa should be granted to an adult with a
\ncriminal record to enter Canada or the deportation of a foreign national who has been convicted of an
\noffence to be stayed or cancelled.

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