Removal Orders

Overview

A removal order is a legal order under the Immigration and Refugee Protection Act (IRPA) that requires a person to leave Canada. An officer who believes a person in Canada is inadmissible may write a report to the Minister (IRPA s.44(1)); the Minister may then refer the report to the Immigration Division of the IRB for an admissibility hearing or, in prescribed circumstances, make the removal order directly (s.44(2)). Removal orders are enforced by the Canada Border Services Agency (CBSA), not by IRCC.

A right of appeal exists only for some people (IRPA s.63), and other remedies such as judicial review, a pre-removal risk assessment or a humanitarian and compassionate application depend on the person's status and history. Understanding the type of order and the available options is the starting point.

Types of Removal Orders

The Immigration and Refugee Protection Regulations (IRPR) s.223 provide for three types of removal order:

• Departure order: the person must leave Canada and confirm their departure with an officer within 30 days after the order becomes enforceable. If that is not done, the departure order becomes a deportation order (IRPR s.224(2)). The 30-day period is suspended while the person is detained or the order is stayed (s.224(3)). A departure order that is complied with does not require an authorization to return (s.224(1)).
• Exclusion order: the person needs written authorization to return to Canada during the one year after the order is enforced, or five years where the order was made for misrepresentation (IRPR s.225). Exclusion orders are made, for example, for failing to appear for examination, staying beyond an authorized period, or not complying with conditions of temporary residence (IRPR s.228(1)).
• Deportation order: the person needs written authorization from an officer to return to Canada at any time after the order is enforced (IRPA s.52(1); IRPR s.226(1)). Deportation orders are made, for example, for serious criminality or criminality, certain misrepresentation, or returning to Canada without authorization after an earlier removal (IRPR s.228(1)).

A removal order made against a refugee claimant is conditional and comes into force only on the events listed in IRPA s.49(2), such as a final rejection of the claim. The type of order depends on the ground of inadmissibility, as set out in IRPR s.228 and s.229.

Grounds for Removal

Removal orders can be made on several grounds, including:

• Inadmissibility: You do not meet the requirements to enter or stay in Canada (e.g., you lack valid documentation, have health concerns, or pose a security risk).
• Security: engaging in espionage, subversion, terrorism, or being a danger to the security of Canada (IRPA s.34).
• Violating human or international rights: including war crimes and crimes against humanity (IRPA s.35).
• Criminality: convictions in or outside Canada meeting the thresholds in IRPA s.36 (serious criminality and criminality).
• Misrepresentation: withholding or misrepresenting material facts (IRPA s.40).
• Non-compliance: failing to comply with the Act, for example overstaying or breaching conditions (IRPA s.41).

The Removal Process

Under IRPA s.48, a removal order is enforceable once it has come into force and is not stayed; the person must then leave Canada immediately and the order must be enforced as soon as possible. Enforcement is the responsibility of the CBSA. In general terms:

1. The order comes into force on the day it is made if there is no right of appeal, the day after the appeal period expires if no appeal is filed, or the day an appeal is finally decided against the person (IRPA s.49(1)).
2. Some steps trigger a stay of the order by operation of law (see below); a stay may also be sought from the Immigration Appeal Division or the Federal Court.
3. A person under a departure order who leaves and confirms departure within 30 days avoids the order becoming a deportation order (IRPR s.224(2)).
4. Where the order is enforceable and not complied with, the CBSA may arrest and detain the person (IRPA s.55) and carry out removal.

The time between an order being made and its enforcement varies with the case. Remedies with short deadlines, such as an appeal or an application for leave for judicial review, run from the decision date.

Stays of Execution

A stay suspends enforcement of a removal order for a period; it does not cancel the order. IRPA s.50 provides that a removal order is stayed, among other cases, for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction, for the duration of a stay imposed by the Minister, and while a foreign national is serving a sentence of imprisonment in Canada.

The Regulations also create automatic stays in defined situations. A removal order is stayed when a person is notified that they may apply for a pre-removal risk assessment, until the application is decided or the person does not apply in time (IRPR s.232). A removal order is also stayed when the person applies for leave for judicial review of a Refugee Appeal Division decision rejecting their claim, subject to the exceptions in IRPR s.231(2) to (4), which include people found inadmissible for serious criminality.

Outside these automatic stays, a person may bring a motion for a stay to the Federal Court alongside an application for leave for judicial review, or to the Immigration Appeal Division where an appeal is pending. The evidence and arguments a court weighs on such a motion are a matter for legal advice.

Appeals and Reviews

Under IRPA s.63(2) and (3), a permanent resident, a protected person, or a foreign national who holds a permanent resident visa may appeal a removal order made under s.44(2) or at an admissibility hearing to the Immigration Appeal Division (IAD) of the IRB. Other foreign nationals, including refugee claimants whose claims have been rejected, have no appeal to the IAD.

IRPA s.64 removes the right of appeal where the person has been found inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality (a crime punished in Canada by at least six months of imprisonment, or described in s.36(1)(b) or (c)) or organized criminality.

Under the Immigration Appeal Division Rules, 2022, a notice of appeal of a removal order must be filed within 30 days after the day the appellant receives the removal order (rule 16). The IAD may allow the appeal, dismiss it, or stay the removal order with conditions (IRPA s.66 to s.68). In an appeal the IAD may consider humanitarian and compassionate considerations, including the best interests of a child directly affected (IRPA s.67(1)(c)).

Judicial Review

Judicial review by the Federal Court of any decision under IRPA is commenced by an application for leave (IRPA s.72(1)). Leave cannot be sought until any right of appeal under the Act has been exhausted (s.72(2)(a)). Judicial review is a more limited remedy than an appeal: the Court examines whether the decision was lawful and reasonable and whether the process was fair, rather than deciding the case afresh.

The application for leave must be filed and served within 15 days after the person is notified of the decision if the matter arose in Canada, or within 60 days if it arose outside Canada (IRPA s.72(2)(b)). A judge may extend the time for special reasons (s.72(2)(c)). There is no appeal from the decision on the leave application (s.72(2)(e)).

Filing for leave does not itself stay removal except in the situations set out in IRPR s.231; in other cases a separate motion for a stay is needed.

Other Legal Options

Even if you have exhausted appeals and judicial review, other legal options may be available, particularly if your circumstances have changed significantly.

• Humanitarian and compassionate (H&C) application: a foreign national in Canada may ask the Minister for permanent resident status or an exemption from requirements of the Act on humanitarian and compassionate grounds, taking into account the best interests of any child directly affected (IRPA s.25(1)). Some people are barred from applying, including those with a pending refugee claim or a claim rejected within the previous 12 months (s.25(1.2)). An H&C application does not by itself stay removal.
• Pre-removal risk assessment (PRRA): a person subject to a removal order that is in force may apply to the Minister for protection (IRPA s.112(1)). A PRRA is not available where fewer than 12 months (36 months for some countries) have passed since a refugee claim was rejected, withdrawn or abandoned, or since a previous PRRA decision (s.112(2)(c)). When the CBSA notifies a person that they may apply, removal is stayed while the application is pending (IRPR s.232).
• Authorization to return: a person who has been removed under a deportation order, or under an exclusion order still within its one-year or five-year period, needs written authorization from an officer to return to Canada (IRPA s.52(1); IRPR s.225 and s.226). Any later application, including family sponsorship, is subject to that requirement.

Legal advice from an experienced immigration lawyer is essential if you are facing removal from Canada.