202001.02
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2 or 5 Year Ban for Misrepresentation ?

The current legislation sets the period of inadmissibility to Canada for persons who have been found inadmissible due to misrepresentation to five (5) years. The current law came into effect on November 21, 2014. Prior to that, the period of inadmissibility was 2 years. The Government was enforcing the five year ban on everyone who had been found inadmissible for misrepresentation and whose removal was executed on or after November 21, 2014, even if the removal order had been issued prior to that date.

However, in December, 2019, in the case of Zeng v. Canada (Citizenship and Immigration) – 2019 FC 1586, the Federal Court of Canada found this interpretation by the Government to be wrong. It decided that the inadmissibility period for all those who were found inadmissible prior to November 21, 2014 should be two years, even if their removal was effected after November 21, 2014.

The Federal Court explains:

[21] OB 595 sets out the legislative provisions, and gives procedural instructions for reporting misrepresentation concerns and handling applications. Of particular relevance here, OB 595 states that the applicable length of the period of inadmissibility for those in Canada is determined by the date on which the removal order is enforced:

Period of inadmissibility

For those found inadmissible for misrepresentation in Canada, the period of inadmissibility begins on the date the removal order is enforced. If the removal order is enforced on November 21, 2014, or later, the period of inadmissibility is five years, as is the ban on applications for permanent residence. If the removal order is enforced on November 20, 2014, or before, then the period of inadmissibility is two years and there is no ban on applications for permanent residence.

[Emphasis added; bold in original.]

[22]  OB 595 provides a scenario of transitional cases, one of which describes Mr. Zeng’s situation:

A foreign national in Canada is found by the Immigration Division to be inadmissible for misrepresentation under paragraph A40(1)(a) on November 15, 2014. The removal order is enforced on November 23, 2014.

On or before November 20, 2014: Although the Immigration Division reached its decision prior to November 20, 2014, the removal order was enforced after November 21, 2014. Therefore, the exclusion period is five years.

[23]  The officer reviewing Mr. Zeng’s application concluded that he was inadmissible, and could not apply for permanent residence, based on sections 40(2)(a) and 40(3) of the IRPA and an application of OB 595.


Further, after a detailed analysis, the Court concludes as follows:

[54]  If I were required to decide the issue, I would therefore conclude that the relevant date for assessing the applicable inadmissibility period for misrepresentation is the date of the exclusion order, rather than the date of the misrepresentation. In other words, exclusion orders issued on or after November 21, 2014 impose a consequence of inadmissibility that continues for a period of five years from the date of enforcement; those issued prior to November 21, 2014 impose a consequence of inadmissibility that continues for a period of two years from the date of enforcement.


Therefore, if a removal order was issued prior to November 21st, 2014, the two-year period is applicable, notwithstanding when the removal happens.

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