Misrepresentation and the IRCC Five-Year Ban: What the Law Says

An IRCC misrepresentation five-year ban is the common name for the period of inadmissibility set out in section 40 of IRPA. A letter that mentions "misrepresentation" is frightening, especially for someone new to Canada. This guide explains what the section says, in plain language. It is general information and not advice about any one file.

What counts as misrepresentation under section 40?

Section 40(1) lists four situations. The one people meet most often is paragraph 40(1)(a). It covers false statements or omissions, made personally or through someone else, about facts that matter to the case. The wording covers false statements, or leaving out important facts, about a relevant matter, where that false or missing information causes, or could cause, the Act to be applied in error (s. 40(1)(a)).

Three points follow from the wording:

• "Withholding" counts. Leaving something out can be treated the same as stating something false.
• "Directly or indirectly" is wide wording. The section does not limit itself to a person's own direct statements.
• "Could induce" is part of the wording. The paragraph refers to an error that is induced or could be induced, so its text does not say an error must actually have occurred.

The other three situations are narrower. Paragraph 40(1)(b) applies to someone who is or was sponsored by a person found inadmissible for misrepresentation. Paragraph 40(1)(c) applies once a decision allowing a refugee claim or protection application is finally vacated. Paragraph 40(1)(d) applies when a person ceases to be a citizen in the circumstances the paragraph lists.

Is an honest mistake treated differently?

This is the question that worries people most. The text of section 40(1)(a) does not itself contain a sentence about honest or innocent errors. It speaks of misrepresenting or withholding material facts. How a given set of facts is assessed, including what a person knew and whether the fact was "material", is a matter for the decision-maker and, on review, the Court. The answer depends on the facts, and a lawyer can advise on how section 40 applies to a particular situation.

A separate rule is also relevant. Section 16(1) of IRPA requires a person who makes an application to answer all questions truthfully and to produce the evidence and documents an officer reasonably requires. That duty is the backdrop against which section 40 is applied.

How long is the IRCC misrepresentation five-year ban, and when does it start?

Section 40(2)(a) says the person continues to be inadmissible for misrepresentation for five years. The start date depends on where the finding was made:

Because the starting point is tied to a "final determination" or to enforcement of an order, the five years do not simply run from the date on a letter in every case. A lawyer can confirm the start date for a specific file.

Section 40(2)(b) adds a limit for sponsored people. A finding based on being sponsored by an inadmissible person (paragraph 40(1)(b)) requires the Minister to be satisfied that the facts of the case justify the inadmissibility (s. 40(2)(b)).

What does a misrepresentation finding block?

Section 40 itself states one effect. Section 40(3) bars a foreign national found inadmissible under this section from applying for permanent residence while the five-year period runs.

For people who leave or are removed, IRCC's published guidance describes a related consequence. Where an exclusion order was issued because of misrepresentation, the person cannot return to Canada for five years after the order is enforced, and returning sooner generally involves applying for an Authorization to Return to Canada (ARC). The regulations also name an exclusion order as the removal order the Immigration Division makes for paragraph 40(1)(a) or (b), unless subsection 229(3) applies (IRPR s. 229(1)(h)). A deportation order is the applicable order for paragraph 40(1)(d) (IRPR s. 229(1)(i)).

How does a misrepresentation finding come about?

The Act does not set out a single step-by-step path, and what happens depends on where the person is and what kind of matter it is. In outline, for a person in Canada:

1. An officer who forms the opinion that the person is inadmissible can write a report of the relevant facts for the Minister (s. 44(1)).
2. If the Minister considers the report well-founded, it may be sent to the Immigration Division for an admissibility hearing or, in the cases the Act and regulations provide, the Minister may make a removal order (s. 44(2)).
3. A resulting finding of inadmissibility for misrepresentation is what brings the five-year period described above into play.

For a determination made outside Canada, section 40(2)(a) refers to a "final determination of inadmissibility", and how that arises depends on the application and the decision made.

Whether a person receives a chance to respond before a decision, and what that chance must look like, depends on the circumstances. The guide to answering an IRCC concern letter describes how these letters are generally approached.

Can a misrepresentation finding be challenged?

Two court-related routes are commonly asked about, plus a question about what happens afterward. Which route exists depends on the type of decision.

Judicial review in the Federal Court. Section 72(1) says a judicial review of a matter under IRPA starts with an application for leave. The statute sets a 15-day period for a matter that arose in Canada and a 60-day period for one that arose abroad; the application must be served and filed within that period, which runs from the date the person was notified or otherwise learned of the matter (s. 72(2)(b)). The Court has discretion to extend it "for special reasons" (s. 72(2)(c)), but how the deadline applies turns on the facts and should be confirmed with a lawyer immediately. Section 72(2)(e) says no appeal lies from the Court's decision on the application, and section 74(d) permits a further appeal only where the judge certifies a serious question of general importance. The judicial review overview for IRCC refusals covers the steps.

An appeal, where the Act provides one. Section 72(2)(a) postpones judicial review until any appeal right under the Act has been used up. Whether a particular finding carries an appeal right is a question for a lawyer.

What happens after the period. Section 40(3) applies during the five-year period described above. What happens with a new application after that depends on the facts and the type of application, and should be confirmed with a lawyer.

A request to the decision-maker to look again is a different thing from court review. For how the two differ, see reconsideration request or judicial review.

What about permanent residents and citizens?

Section 40(1) covers both permanent residents and foreign nationals, so holding permanent resident status does not take a person outside the section. Section 40(1)(d) also links to situations where citizenship ends under the Citizenship Act. That Act separately allows the Minister to revoke citizenship if satisfied, on a balance of probabilities, that the person got, kept, renounced or resumed citizenship through false representation, fraud or knowing concealment of material circumstances (Citizenship Act s. 10(1)). Section 10.2 adds that citizenship is treated as obtained that way where the person got permanent resident status by those means and later obtained citizenship because of that status. These are serious processes with their own procedures, and a lawyer can explain how they apply.

When it is worth talking to a lawyer

People in this situation typically consult a lawyer when:

• a letter or decision uses the word "misrepresentation" or refers to section 40
• there is a date by which something must be filed, including the 15-day and 60-day periods
• a report under section 44, a hearing notice, or a removal order has been received
• an application was prepared by a consultant, agent or relative and the person does not know what it said
• a permanent residence or citizenship file is affected

What to gather

A lawyer would typically ask for:

• the decision or refusal letter, and any earlier concern letter
• the full application as submitted, including all forms and attachments
• all documents that were questioned, with proof of where they came from
• emails, receipts and contracts with any representative who helped
• a timeline of travel, work, study and addresses
• the date and method by which the decision was received