Removals & Deportation
Persons who do not have status in Canada, who have received a negative decision on an application, or who received a removal order are usually required to leave Canada. Our office has extensive experience helping individuals to navigate all the legal avenues that may be available for them to remain in Canada. We can provide advice about any application that an individual might be able to make or about the option of judicially reviewing or appealing a refused application. We can also assist with requests for the Canada Border Services Agency to defer removal pending other processes. If other options have been exhausted, we can apply for a stay of removal before the Federal Court.
Right to Appeal
A foreign national who holds a permanent resident visa, a permanent resident, or a protected person who has been found to be inadmissible to Canada and received a removal order may appeal to the Immigration Appeal Division (IAD) in limited cases:
- Certain serious criminality cases – persons who have been convicted in Canada of an offense which is punishable by a maximum sentence of 10 years or more, and for which the person received an actual sentence of less than 6 months imprisonment.
- Misrepresentation – persons found to have directly or indirectly misrepresented or withheld material facts relating to a relevant immigration matter.
Protected persons would also have access to the IAD in the following cases:
- Regular criminality – persons convicted of any offence, punishable by less than 10 years imprisonment in Canada, and for which the person was sentenced to 6 months or less.
- Health grounds – persons with a health condition found likely to endanger public health or public safety.
There is no access to the IAD by persons found to be inadmissible on grounds of security, a violation of human or international rights, organized criminality, or serious criminality that occurred outside Canada or carried a sentence of 6 months or more in Canada. The Minister can appeal against any decision by the Immigration Division not to issue a removal order in these cases.
A Notice of Appeal and a copy of the removal order must be filed at the IAD within 30 days after the person receives the removal order. An Appeal Record is then created by either the Minister or the Immigration Division, depending on the type of decision that is being appealed, which is then sent to the Appellant.
A hearing date is scheduled by the IAD, when the Appellant/counsel will appear before a Member of the IAD to argue their case. Twenty days before the hearing, the parties must submit all relevant documents that they wish to rely on and a list of witnesses. The parties then have 10 days to submit any documents in response to the documents submitted by the other party. In the case of a medical refusal, relevant medical reports must be filed and served 60 days before the hearing.
Preparing an Appeal
The Appellant can use witness testimony and physical documentary evidence to prove their case. This can include materials such as support letters from family, friends and colleagues, letters of employment/volunteer work, school certificates and records, photographs or videos, tax assessments, bank statements, pay stubs, title certificates, medical or psychological expert reports, country condition reports and news articles.
Grounds of Appeal
The Appellant will need to establish that the admissibility decision was wrong, that a principle of natural justice was violated or that the appeal should be allowed on humanitarian and compassionate grounds. Most removal order appeals are dealt with on humanitarian and compassionate grounds.
The relevant ‘humanitarian and compassionate’ factors that are considered by the IAD include the best interests of any child directly affected by the decision and other factors, as follows:
- The seriousness of the offence leading to the removal order, where applicable;
- The possibility of rehabilitation, where applicable;
- The length of time the Appellant has spent in Canada and the degree of establishment;
- The Appellant’s family in Canada and the dislocation to the family that the removal of the Appellant would cause;
- The support available to the Appellant from his or her family and from within the community;
- The degree of hardship that the Appellant would face in their country of nationality if removed from Canada, if they can be removed.
In deciding an appeal, the IAD may allow or dismiss the appeal outright, or they may impose a stay of removal for a specified period of time, during which time the Appellant must follow specified conditions. This typically includes reporting to Canada Border Services Agency (CBSA), abstaining from criminality, reporting changes of address and updates in personal circumstances, and possible counseling or rehabilitative program attendance, among other things. This stay is similar to a period of probation under criminal law. If the specified conditions are not followed, the IAD may review the stay and vary or cancel it. If the Appellant receives a new criminal conviction which is considered a “serious criminal offence”, the stay is cancelled automatically by operation of law and the appeal is terminated.
At the end of the stay period, the IAD will reconsider whether to allow the appeal. The Appellant must affirm in writing that they have complied with the stay conditions and CBSA will indicate whether they agree that the appeal should be allowed or whether they request another hearing be held. The IAD will then render a final decision on the appeal or schedule a reconsideration hearing. The appeal is not simply automatically allowed at the end of the stay period. The Appellant must stay engaged with the process until their appeal is finally disposed of in this manner.
A negative determination at an IAD hearing results in loss of permanent resident status and/or removal. This decision is final unless an application for leave and judicial review at the Federal Court is successful.
CBSA is required to enforce removal orders as soon possible after they become enforceable. A person may request CBSA defer removal where there are “special circumstances” that may justify a deferral. If the deferral request is refused, a person can bring a motion to the Federal Court to stay their removal.
An individual facing removal from Canada may apply to Federal Court to stay (i.e. to stop) their removal. Once an individual is aware of an impending removal, they should act as quickly as possible to work with counsel to prepare a stay motion.
An application asking the Federal Court to judicially review a specific immigration decision must first be filed before the Federal Court will consider a stay motion. By making a stay motion, the Applicant is asking that the removal be stopped until the Federal Court judicially reviews the underlying negative immigration decision.
To obtain a stay, an Applicant will need to demonstrate:
- that there is a serious legal issue to be tried in the underlying application;
- that they would suffer irreparable harm if they were removed from Canada; and
- the balance weighs in favour of granting the stay rather than in favour of the Minister seeking the removal.
Depending on their situation, the Applicant will need to provide as much evidence as possible to document:
- The physical, psychological or other harm they or others may suffer if they were removed from Canada; and
- The best interest of any child impacted by the Applicant’s removal.
There are three types of removal orders which can be issued by immigration authorities or the Immigration and Refugee Board. Some individuals may have a right to appeal a removal order to the Immigration Appeal Division and in other cases, leave may be sought to judicially review the removal order in Federal Court. We can provide advice and assistance to individuals who are seeking to understand how to comply with a removal order or how to have it set aside.
A Departure Order is the removal order with the least severe consequences. If the person subject to a departure order complies with the order within 30 days of when it comes into force, then the person will not face exclusion from Canada and could seek to return at any time as long as they comply with the normal visa requirements for nationals of their country. However, after 30 days the departure order will automatically become a deportation order with the very severe consequences set out below. It is crucial that individuals subject to departure orders get competent advice to understand when the order might come into force and to understand the consequences of failing to confirm departure before that date.
A conditional Departure Order is usually issued to refugee claimants upon initiating their claim and generally comes into force once the claim has been denied unless the claimant has access to the Refugee Appeal Division. Departure orders are also issued in certain cases involving permanent residents who have not complied with conditions such as their residency obligation or protected persons who are losing their status by way of cessation.
A person subject to an Exclusion Order will be excluded from Canada between one and five years after confirming their departure, depending on the reason for the exclusion. Most breaches of immigration obligations, such as arriving without a proper visa, remaining without status, working or studying without authorization will often result in exclusion. A finding of misrepresentation will result in a five-year exclusion during which the person is also barred from applying for permanent residence. While many exclusion orders will be issued after a hearing before the Immigration and Refugee Board, the majority of exclusion orders are issued directly by immigration officers.
Deportation Orders are the removal orders with the most severe consequences. A person who is removed under a Deportation Order will never be allowed to return to Canada without first obtaining an Authorization to Return to Canada (ARC). Deportation Orders are issued upon findings of inadmissibility for various forms of criminality, national security concerns or upon loss of status through processes such as vacation. Deportation Orders are also issued in certain cases where a person could be subject to multiple exclusion orders or if they have failed to leave Canada during the relevant period a Departure Order was in force.
Confirmation of Departure
Compliance with a removal order requires that the person confirm their departure from Canada. Simply leaving Canada without confirming departure does not comply with the removal order, and it will remain in force. Generally, compliance will involve meeting with a removals officer from the Canada Border Services Agency (CBSA) who will provide instructions for departure from Canada. Upon departure, an officer will provide a Confirmation of Departure. This document is very important and will provide proof of compliance with the removal order. Any applicable period of exclusion will begin from the date on the Confirmation of Departure.
Removal orders should not be confused with “voluntary” departure. In many cases, an officer will make it clear that they do not intend to allow someone to enter or remain in Canada but will choose to allow the person to leave without making them the subject of a removal order. In many cases, this can be a significant benefit to the person concerned, as it provides the opportunity to leave Canada and return when the officer’s concerns have been addressed. If an individual is being offered “voluntary” departure but does not want to leave Canada, it is likely in their interest to seek competent advice before rejecting the offer from the officer.
A permanent resident must comply with residency obligations to maintain their status in Canada.
A person who has been a permanent resident for five years or more complies with residency obligations if they can demonstrate to immigration authorities that they have been physically present in Canada for a minimum of 730 days within the past five years.
A person who has been a permanent resident for less than five years complies with residency obligations if they can demonstrate they will be able to meet the minimum of 730 days physical presence in Canada at the five-year mark.
In some limited circumstances, it is possible to count the days that a permanent resident is physically outside of Canada towards the 730 day residency requirement:
- If the permanent resident is accompanying a Canadian citizen spouse, common-law partner or parent (if the permanent resident is less than 19 years of age).
- If the permanent resident is accompanying a Canadian permanent resident spouse, common-law partner or parent (if the permanent resident is less than 19 years of age). During this period, the permanent resident relative must be employed on a full-time basis by a Canadian business or in a federal or provincial public service.
- If the permanent resident is an employee of, or under contract to, a Canadian business or is a member of the federal or provincial public service and is assigned on a full-time basis to a position outside Canada.
Importantly, there are additional requirements for each of these exceptions detailed in the regulations. It is highly advisable to seek legal counsel beforerelying on them to reside outside Canada.
In certain circumstances, immigration officials will consider any compelling humanitarian and compassionate factors if a permanent resident is unable to meet the residency requirements.
Residency obligations to maintain permanent residence should not be confused with the separate matter of residency for the purposes of citizenship. The residency requirements for citizenship are now physical presence for 4 out of 6 years and unrelated to the requirements for maintaining permanent residency.
Residency compliance checks
Residency examinations occur most frequently by border officials upon entry into Canada. They also occur when new or updated travel documents are requested from within Canada. If the immigration officer engages in a thorough examination and is not satisfied the residency obligations have been met, it is within their discretion to issue a removal order, resulting in loss of permanent residency status. This can be appealed to the Immigration Appeal Division (see below).
Residency compliance examinations also occur when applying for a travel document from abroad in order to re-enter Canada. If a determination is made that residency obligations have likely not been met, a temporary travel document may still be issued for the purposes of attending an immigration appeal hearing. The travel document will be issued as long as the permanent resident has been present in Canada for at least one day out of the 365 days prior to applying for a travel document.
Residency obligation appeal
If an officer determines residency obligations have not been met, a permanent resident may apply to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) for an appeal of the decision.
If a permanent resident receives a removal order within Canada at an admissibility hearing or after an examination, they must provide a Notice of Appeal along with a copy of the removal order to the IAD no later than 30 days after receiving the removal order.
If a permanent resident wants to appeal a negative residency obligation decision made outside Canada, they must provide a Notice of Appeal and written decision to the IAD registry office for the region in Canada where they last resided no later than 60 days after receiving the written decision.
An Appeal Record is then created by the Minister which is then sent to the Appellant.
A hearing date is scheduled by the IAD, when the Appellant/counsel will appear before a Member of the IAD to argue their case. Twenty days before the hearing, the parties must submit all relevant documents that they wish to rely on and a list of witnesses. The parties then have 10 days to submit any documents in response to the documents submitted by the other party.
At the hearing, an IAD Member will first decide whether or not the 730 day residency obligation has been met. If the Appellant is found not to have met residency obligations, the Member will then decide whether there are sufficient humanitarian and compassionate considerations to justify the retention of permanent resident status and overcome the breach of the residency obligation. The IAD Member will consider factors such as the following:
- the extent of the non-compliance with the residency obligation;
- the reasons for the departure and stay abroad;
- the degree of establishment in Canada, initially and at the time of hearing;
- family ties to Canada;
- whether attempts to return to Canada were made at the first opportunity;
- hardship and dislocation to family members in Canada if the Appellant is removed from or is refused admission to Canada;
- hardship to the Appellant if removed from or refused admission to Canada; and
- whether there are other unique or special circumstances that merit special relief.
A negative determination at an IAD hearing results in loss of permanent resident status. This decision is final unless an application for leave and judicial review at the Federal Court is successful.