Understanding Removal During a Refugee Claim
When a refugee claim is filed in Canada, protections are put in place to prevent removal while the claim is being processed. However, understanding these protections and the circumstances under which they may be affected is important for refugee claimants. This article explains the legal framework that governs removal during the refugee claim process and what rights claimants have.
The question of whether someone can be deported while their refugee claim is being processed has a clear answer under Canadian immigration law: in most circumstances, no. When a refugee claim is made, a removal order is issued but it is conditional: under section 49(2) of the Immigration and Refugee Protection Act (IRPA) it does not come into force until the claim is found ineligible, rejected, withdrawn or abandoned. Under section 48, a removal order can only be enforced once it has come into force and is not stayed. However, there are circumstances where the order comes into force early, or where a stay does not apply.
Knowing your rights and protections is essential to maintain your status in Canada throughout your claim process. This knowledge also helps you understand what actions might affect your protection status and what to do if your circumstances change.
What is a Removal Stay?
A stay is a legal mechanism that prevents a removal order from being enforced. For a refugee claimant the protection works slightly differently: the removal order issued when the claim is made is conditional and simply does not come into force while the claim is before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). A separate set of stays, set out in IRPA section 50 and in the Immigration and Refugee Protection Regulations (IRPR), applies at later stages such as judicial review and the Pre-Removal Risk Assessment.
How the Automatic Stay Works
Under IRPA section 49(2), the removal order made against a refugee claimant is conditional. It comes into force only on a listed event: when the claim is found ineligible for referral, 15 days after notice that the RPD has rejected the claim where there is no right of appeal, when the time to file and perfect an appeal to the Refugee Appeal Division (RAD) expires without an appeal, 15 days after the RAD rejects the claim, or when the claim is withdrawn or declared abandoned. Until one of those events happens, the Canada Border Services Agency (CBSA) has no enforceable order to act on.
Duration of the Stay
The protection lasts until the claim is finally decided, withdrawn or declared abandoned. If a claim is allowed, the person becomes a protected person, and IRPA section 115(1) provides that a protected person is not to be removed to a country where they would be at risk of persecution, torture or cruel and unusual treatment or punishment, subject to the exceptions in section 115(2) for certain persons inadmissible on grounds of serious criminality, security, human or international rights violations or organized criminality. Protected person status is not permanent residence; permanent residence is a separate application that a protected person may make. If a claim is rejected, the conditional removal order comes into force on the timetable in section 49(2), although an appeal to the RAD, filed and perfected within the time limits in the Regulations, keeps it from coming into force until the appeal is decided.
Exceptions to the Automatic Stay
The protection depends on the claim being referred to the RPD. Under IRPA section 101, a claim is ineligible for referral in listed situations, including where the person already has refugee protection, made an earlier claim in Canada that was rejected, withdrawn or abandoned, came to Canada from a country designated under the Safe Third Country Agreement without qualifying for an exception, or has been found inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. When a claim is found ineligible, section 49(2) provides that the removal order comes into force on the day notice is given (for Safe Third Country ineligibility) or seven days later (for other grounds). A person in that position may be able to apply for a Pre-Removal Risk Assessment under section 112, which the Regulations (section 232) provide stays removal while it is pending.
Automatic Protection When You Claim
The conditional removal order and the protection that comes with it arise as soon as an eligible refugee claim is made. Under IRPA section 99(3), a claim inside Canada is made in person to an officer, whether at a port of entry on arrival or at an Immigration, Refugees and Citizenship Canada (IRCC) or CBSA office after entry.
At a Port of Entry
When an individual arrives at a Canadian port of entry (airport, land border, or seaport) and indicates the wish to make a refugee claim, an officer determines under IRPA section 100 whether the claim is eligible to be referred to the RPD. At a land border, the Safe Third Country Agreement applies along the entire border, and a claim by a person arriving from the United States is ineligible unless one of the Agreement's four exceptions applies (a family member in Canada, an unaccompanied minor, the holder of certain documents such as a valid Canadian visa, or the public interest exception). Where the claim is eligible and referred, the removal order remains conditional while the claim is processed.
After Arriving in Canada
If an individual enters Canada and later makes a refugee claim at an IRCC office or a CBSA office, the same conditional removal order is issued once the claim is found eligible. IRPA section 99(3) provides that a claim inside Canada cannot be made by a person who is already subject to a removal order; for such a person the Pre-Removal Risk Assessment under section 112 is the route to a risk assessment. The manner of entry may affect other aspects of the case.
What the Stay Means
- The CBSA has no enforceable removal order to act on while the claim is before the RPD
- The claimant may remain in Canada while the claim is decided
- IRCC issues an open work permit, at no fee, once the claim is found eligible for referral and the medical examination has been passed
- Time to gather evidence and prepare the case is available while the claim is pending
Understanding Removal Orders
A removal order is a legal order, issued by an officer or by the Immigration Division of the IRB, that requires a person to leave Canada. A removal order is also issued when a refugee claim is made, but that order is conditional and only comes into force on the events listed in IRPA section 49(2).
Types of Removal Orders
Section 223 of the Regulations provides for three types of removal orders: departure orders, exclusion orders and deportation orders. Each has different implications for returning to Canada. Under section 224, a person under a departure order who leaves within 30 days of the order becoming enforceable and confirms their departure does not need special authorization to return; if they do not leave within 30 days, the departure order becomes a deportation order. Under section 225, an exclusion order requires written authorization to return during the year after it is enforced (five years where it was issued for misrepresentation). Under section 226, a deportation order requires written authorization to return at any time. Section 229 sets which order applies to which ground of inadmissibility; a deportation order is the order for security, human or international rights violations, serious criminality and organized criminality.
Removal Orders and Refugee Claims
IRPA section 99(3) provides that a refugee claim inside Canada cannot be made by a person who is already subject to a removal order. A person in that position who fears return may instead be eligible for a Pre-Removal Risk Assessment (PRRA) under section 112. Under section 232 of the Regulations, the removal order is stayed once the person is notified that they may apply for a PRRA, and the stay lasts until the application is rejected or the time to apply passes without an application. A positive PRRA decision confers refugee protection under section 114(1).
Protecting Yourself
Because the availability of a refugee claim, a PRRA and the related stays depends on timing and status, legal advice at the earliest stage is valuable. IRPA section 167(1) provides that a person in proceedings before the IRB may be represented by counsel at their own expense; legal aid is a provincial program and its availability for immigration matters varies by province.
Applying for a Stay of Removal
Where a removal order has come into force and no statutory or regulatory stay applies, a person may bring a motion to the Federal Court for a stay of removal. The Federal Court decides such motions using the three-part test for interlocutory relief set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) and confirmed in R. v. Canadian Broadcasting Corp., 2018 SCC 5: a serious issue to be tried, irreparable harm, and the balance of convenience.
Serious Issue to be Decided
The first part of the test asks whether the underlying application, usually an application for leave and judicial review under IRPA section 72, raises a serious issue. Judicial review requires leave of the Federal Court, and section 72(2)(b) sets the time to file at 15 days after the person is notified of the matter where the matter arose in Canada and 60 days where it arose outside Canada.
Balance of Convenience
The second part of the test is irreparable harm: harm that could not be repaired if the person were removed and later succeeded in their case. The third part is the balance of convenience, which weighs the harm to the person from removal against the public interest in enforcing removal orders as soon as possible, which IRPA section 48(2) requires.
Who Can Grant a Stay
Court-ordered stays of removal are granted by the Federal Court. Separately, some stays are automatic: under section 231 of the Regulations, filing an application for leave and judicial review of a RAD decision that rejects a claim stays the removal order until the court process ends, except for designated foreign nationals and persons removable for serious criminality. IRPA section 50 also stays removal where a court decision would be contravened, where the person is serving a prison sentence in Canada, and where the Minister or the Immigration Appeal Division has imposed a stay. Under section 233 of the Regulations, the Minister may stay removal on humanitarian and compassionate or public policy grounds. Because Federal Court motions have their own procedures and short timelines, legal representation is usually involved.
When Removal Risk Increases
The conditional removal order provides protection during the claim process, but there are points at which the risk of removal increases.
After Claim Dismissal
The risk of removal increases significantly once a refugee claim is rejected. Under IRPA section 49(2), the conditional removal order comes into force 15 days after notice of an RPD rejection where there is no right of appeal, when the time to file and perfect a RAD appeal expires without one, or 15 days after the RAD rejects the claim. Under section 48(2), an enforceable removal order is to be enforced as soon as possible. Section 232 of the Regulations stays removal while a PRRA is pending, but section 112(2)(b.1) of the Act bars a PRRA application for 12 months after a claim is rejected, withdrawn or abandoned.
Security or Criminality Issues
A finding of inadmissibility on grounds of security, violating human or international rights, serious criminality or organized criminality makes a claim ineligible for referral under IRPA section 101(1)(f), and section 101(2) defines serious criminality for this purpose by reference to a conviction for an offence punishable by a maximum term of at least ten years. Under section 231(3) of the Regulations, the automatic stay during judicial review of a RAD decision does not apply to persons removable for serious criminality.
Appeal or Further Applications
If a claim is rejected, most claimants may appeal to the RAD under IRPA section 110. Section 110(2) lists the exceptions, including claims by designated foreign nationals, claims declared withdrawn or abandoned, claims the RPD found to have no credible basis or to be manifestly unfounded, and claims made under an exception to the Safe Third Country Agreement. A RAD appeal filed and perfected within the time limits in section 159.91 of the Regulations (a notice of appeal within 15 days of receiving the written reasons and the perfected appeal within 30 days, both extendable) keeps the removal order from coming into force. A PRRA is barred for 12 months after the rejection under section 112(2)(b.1). An application on humanitarian and compassionate grounds does not stay removal, and under section 25(1.2) it cannot be made while a refugee claim is pending or during the 12 months after the claim is rejected, withdrawn or abandoned, subject to the exceptions in section 25(1.21).
Your Rights During the Process
Throughout the refugee claim process, the Act and the Refugee Protection Division Rules provide rights that protect a claimant from removal and support a fair hearing.
Right to Stay in Canada
The primary protection is the ability to remain in Canada while the claim is being decided, because the removal order issued with the claim is conditional under IRPA section 49(2) and cannot be enforced until it comes into force.
Right to Legal Representation
IRPA section 167(1) provides that a person who is the subject of proceedings before any Division of the IRB may, at their own expense, be represented by legal or other counsel. Under section 91(2), counsel who charge a fee must be a lawyer or paralegal who is a member of a provincial or territorial law society, a member of the Chambre des notaires du Quebec, or a licensee of the College of Immigration and Citizenship Consultants. Under section 167(2), the Division designates a representative for a claimant under 18 or unable to appreciate the nature of the proceedings.
Right to Appeal
If a claim is rejected and none of the exceptions in IRPA section 110(2) applies, the claimant may appeal to the RAD. Section 159.91 of the Regulations sets the time limits: a notice of appeal within 15 days after receiving the written reasons, and the perfected appeal within 30 days, each of which the RAD may extend. While an appeal filed and perfected in time is pending, the conditional removal order does not come into force.
Right to Information
Under IRPA section 170(e), the RPD must give the claimant a reasonable opportunity to present evidence, question witnesses and make representations, and under section 169 the IRB gives reasons for its decisions. Rule 19 of the Refugee Protection Division Rules provides for an interpreter at the hearing where the claimant identifies the language and dialect needed, and the IRB's Claimant's Guide states that the interpreter is provided at no cost.