What is misrepresentation?
Misrepresentation or document fraud is a serious crime as defined in section 40 of IRPA, the Immigration and Refugee Protection Act.
“Misrep” includes:
- Providing false information
- Omitting relevant information (lies by omission)
- Falsifying supporting documents or evidence
- Making false statements in an interview
These false statements, edited supporting documents, and omissions must lead to an immigration officer making a decision that they would not otherwise make (or putting them in a position to possibly make a decision they would not otherwise make).
The legal definition of misrepresentation is that
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
Is It Misrepresentation To Make a Mistake on an Immigration Application?
That depends. The incorrect information must relate to material (substantively important) facts about the case.
For example, an applicant for spousal sponsorship stated in their application that when they first met their spouse, she was wearing a blue dress. However, in reality she was wearing a red dress. The color of the spouse’s dress is not substantively important (material). It does not impact whether the relationship between the spouses is genuine, or any other meaningful consideration in the case. This is simply an error, but not misrepresentation.
In order to be misrepresentation, in addition to relating to material facts about the case, the error or omission must create the possibility for an immigration officer to misapply the law to that case.
In another example, an applicant for spousal sponsorship said that he was divorced once. In reality he was divorced 2 or 3 times, which could definitely be a case of misrepresentation. The reason it could be misrep is that knowing the true number of previous marriages that ended in divorce could cause IRCC to consider the genuineness of the relationship differently.
The officer may now have doubts about the bona fides of the relationship. Had the officer known the applicant was divorced more than once, they may have convoked a sponsorship interview in person with the applicant, and possibly even refuse the application. Hiding the true number of times the applicant has been divorced is very relevant to a sponsorship application and could likely be considered misrepresentation.
Misrepresentation is rarely black and white. What may be misrep in one application, would not be in another application because the same facts are not as important in those circumstances. While it may be absolutely material that the applicant in a study permit application graduated with their bachelor’s degree in 2014, it may not be material at all in a sponsorship application. The best way to avoid misrepresentation is to tell the entire truth, without leaving out what you may believe is not important.
Have I Misrepresented? Accidental Misrepresentation
It is very possible that someone could misrepresent on their immigration application without having the intention to do so. In fact, the intention is not that important when determining if an error is misrepresentation or not – what is important is whether
- the error related to a material fact relevant to the application
- the error did or could cause an immigration officer to make a mistake in their judgement of the application
Common Types of Misrepresentation
When speaking with clients, certain types of misrepresentation tend to come up regularly, including
Not declaring a common-law partner on an immigration application
Everyone knows whether or not they are legally married. However, not everyone knows whether they and their boyfriend/girlfriend/partner are legally considered common-law partners. Not every country even considers common-law partnership to legally exist. However, common-law partnership in Canada is an applicable legal construct in immigration, tax, and family law.
Even if someone has never made any type of legal declaration of common-law partnership, and regardless of whether the couple lives inside or outside Canada, after living together for 365 days, they are legally considered common-law partners and must be declared on an immigration application. Failure to disclose that you have a common-law partner is 100% misrepresentation.
Not declaring a spouse or child on an immigration application
If an applicant for Canadian immigration has a biological or adopted child, they are required to list them on their application regardless of the application type. If the child is not declared on the application, they will not be “examined” by completing the immigration medical exam. This means that the child can never be considered a member of the family class as the parent’s dependent. In this case, the child can never be sponsored to Canada.
The same applies to a spouse who was not declared. A spouse who was not declared and not medically examined can never be sponsored for permanent residence in Canada.
Not declaring arrests, criminal charges, and criminal convictions
Even if a criminal charge or conviction happened years or decades ago, this has to be declared on an immigration application. A crime that occurred when the applicant was a minor must also be declared. Criminal offences that happened at any time, no matter how long ago, may still make an applicant inadmissible to Canada.
If the conviction would not normally cause the refusal of the application, failure to disclose the conviction still could constitute misrepresentation.
It is also worth noting that an applicant does not need to have been convicted of a crime in order to be inadmissible to Canada. An immigration officer having reasonable grounds to believe that an illegal act has been committed can be enough to make someone inadmissible to Canada, per section 36 of IRPA:
(2) A foreign national is inadmissible on grounds of criminality for
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament;
Not declaring previous immigration application refusals
As part of any permanent or temporary status application, all applicants are required to disclose if they have been refused any type of application to any country. This includes
- visitor visa
- permanent residence
- work permit
- study permit
- refugee claim
- any other type of application
Failure to disclose a prior immigration or refugee refusal is considered misrepresentation because officers consider applications differently for applicants who have prior refusals vs. those who have no prior refusals.
Not declaring additional passports/citizenships
Sometimes having dual or triple citizenship can help an immigration application, increasing the chances of approval. This can happen especially when an applicant holds a citizenship to a country which is similar to Canada in socio-economic development.
However, sometimes applicants will fail to disclose that they hold an additional passport or citizenship, fearing that this might have negative consequences. This issue comes up frequently with permanent residents who travel outside Canada on a passport they believe IRCC is not aware that they have. Failure to disclose holding an additional passport or citizenship can be considered misrepresentation.
Not declaring a representative on an immigration application
It is considered misrepresentation when an applicant for Canadian immigration does not disclose that someone has assisted them with their application. Assistance can come from a licensed immigration lawyer or immigration consultant, but it could also come from an unlicensed person such as a friend or family member. In either case, if anyone helps an applicant with their immigration application, this person is required to be listed on the Use of Representative (IMM 5476) form.
To be clear, assistance does not only mean preparing the entire immigration application on the applicant’s behalf. It can also mean:
- completing application forms
- compiling supporting documents
- interpreting application instructions
- interpreting law and regulations
- creating an online portal
- uploading documents
- submitting the application
- contacting IRCC
Only a licensed immigration consultant registered with the College of Immigration and Citizenship Consultants or Canadian immigration lawyer is legally allowed to charge fees for assistance with immigration applications or immigration legal advice.
Punishment for Misrepresentation
Misrepresentation is a crime, which means that it carries a penalty when an applicant is caught. Someone who is found to have misrepresented is barred from entering Canada for a period of 5 years.
Per section 40(2) of IRPA,
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;
Also, during this 5 year bar, the applicant is ineligible to become a permanent resident of Canada:
(3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).
If someone has been found to have misrepresented by an immigration officer, any future application they submit to IRCC will be treated with extreme suspicion and is very likely to be refused. It is exceptionally difficult to overcome a previous finding of misrep, even when the 5-year bar has expired.
What to Do if You Have Misrepresented
If an applicant realizes they have made a mistake or provided incorrect information, they should immediately inform IRCC and provide the correct information. This is generally viewed more favorably than intentionally providing false information or trying to cover up a mistake.
If an applicant knows that IRCC has incorrect information about them, they should correct it right away and do not complete a permanent resident landing until the information has been corrected.
Procedural Fairness Letter
If IRCC believes that an applicant has misrepresented on their immigration application, the application may be refused right away or the applicant may receive a letter outlining the officer’s concerns. This letter is called a Procedural Fairness Letter (PFL).
When an applicant receives the PFL, they will be given a limited amount of time to respond to the officer’s concerns with explanations, documentation, and new evidence. If the officer is satisfied with the new information, the application can still be approved. If the officer believes that misrep has occurred, they will impose the 5-year bar on the applicant.
It is extremely important to seek assistance if you receive a procedural fairness letter – an incomplete or incorrect response can result in
- refusal of the application
- 5-year bar from entering Canada
- refusal of all future immigration applications
Misrepresentation and Canadian Citizenship
Misrepresentation is the most serious violation of Canadian immigration law. It is worse than working illegally, overstaying on a visa, or any other immigration issue.
The only reason that a person’s Canadian citizenship can legally be revoked is misrepresentation. This risk of losing citizenship not only applies to false information in a Canadian citizenship application.
If misrepresentation occurred at any stage of the applicant’s immigration process to come to Canada, such as
- applying for their first temporary status such as a study permit
- applying for permanent residence
- applying to become a Canadian citizen
IRCC can take action to revoke the person’s Canadian citizenship. Further, there is no statute of limitations – the risk of having citizenship never goes away once misrepresentation has occurred.
Contact us if you are worried about possible misrepresentation or if you have received a finding of misrepresentation.
