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. Once a refugee claim is made, an automatic removal stay is put in place. However, there are exceptions and circumstances where a removal stay may be lifted or where removal may proceed before a claim is processed.
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 removal stay is a legal mechanism that prevents Canada from removing a person from the country. When a refugee claim is filed, a removal stay is automatically put in place. This stay remains in effect while the claim is being processed through the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB).
How the Automatic Stay Works
According to the Immigration and Refugee Protection Act (IRPA), when a refugee claim is made at a port of entry or within Canada, the Canada Border Services Agency (CBSA) cannot remove the claimant while the claim is being processed. This automatic stay applies from the moment a claim is made and continues throughout the entire processing period.
Duration of the Stay
The removal stay remains in effect until one of the following occurs: the refugee claim is decided by the RPD, the claim is abandoned, the claimant withdraws the claim, or the individual voluntarily leaves Canada. If a claim is allowed, the person becomes a protected person and cannot be removed. If a claim is dismissed, the stay typically expires, though rights to appeal or apply for other forms of protection may exist.
Exceptions to the Automatic Stay
While the automatic stay generally protects claimants from removal, there are limited circumstances where the CBSA may seek to remove someone despite a pending refugee claim. These exceptions are rare and require court approval or are based on specific grounds related to security or criminality.
Automatic Protection When You Claim
The automatic removal stay is triggered the moment you make a refugee claim. This protection is available whether you claim at a port of entry upon arrival in Canada or at an IRCC office within Canada after entering the country.
At a Port of Entry
When an individual arrives at a Canadian port of entry (airport, land border, or ocean port) and indicates the wish to make a refugee claim, the removal stay is immediately activated. Information about the claim and the claimant's rights is provided. An eligibility interview may be scheduled, but removal cannot occur while a claim is being processed.
After Arriving in Canada
If an individual enters Canada and later makes a refugee claim at an Immigration, Refugees and Citizenship Canada (IRCC) office or at a CBSA office, the removal stay is automatically put in place from the moment the claim is filed. This protection applies regardless of the manner of entry, though the manner of entry may affect other aspects of the case.
What the Stay Means
- The CBSA cannot force removal from Canada while a claim is being processed
- Legal permission to remain in Canada exists during the processing period
- Application for a work permit and access to social benefits is available while a claim is pending
- Time to gather evidence and prepare a case is provided
Understanding Removal Orders
A removal order is an official CBSA document that directs a person to leave Canada by a specific date. Removal orders exist before a refugee claim is made, and understanding when and how they apply is important for claimants.
Types of Removal Orders
There are three types of removal orders in Canada: voluntary departure orders, departure orders, and deportation orders. Each has different implications for your ability to return to Canada in the future. A voluntary departure order gives you time to leave Canada on your own. A departure order means you have been found inadmissible and must leave. A deportation order is the most serious and is issued for security reasons, criminality, or human rights violations.
Removal Orders and Refugee Claims
If a removal order was issued before a refugee claim is made, the automatic stay that accompanies the claim will typically prevent enforcement of the removal order. The stay suspends execution of the order while the claim is processed. However, if a claim is dismissed and there is no successful appeal, the removal order may be enforced.
Protecting Yourself
If a removal order is received before making a refugee claim, filing the refugee claim as soon as possible is crucial. This activates the removal stay and prevents enforcement of the order. Obtaining legal representation to help file a claim properly and on time is advisable in these situations.
Applying for a Stay of Removal
In limited circumstances where you may face removal despite your refugee claim or where the automatic stay does not apply, you may need to apply for a stay of removal. This requires demonstrating serious issues to be decided in your case and that you would suffer irreparable harm if removed.
Serious Issue to be Decided
To obtain a stay of removal, demonstration of a serious issue to be decided is required. This typically means showing that a refugee claim or other application raises important legal questions or factual issues that have not yet been resolved. The decision-maker will consider whether the issues raised are serious and not frivolous.
Balance of Convenience
Demonstration that the balance of convenience favors granting a stay is also required. This means showing that the harm from removal outweighs the inconvenience to the government of allowing the person to remain while the case is decided. Evidence that removal would cause irreparable harm that cannot be remedied by money damages or other means is necessary.
Who Can Grant a Stay
Stays of removal are granted by the Federal Court of Canada. If removal appears imminent and legal protection is needed, contacting an immigration lawyer immediately is important, as applying to the Federal Court requires proper legal procedures and documentation.
When Removal Risk Increases
While the automatic removal stay provides protection during the claim process, there are circumstances where your risk of removal increases. Being aware of these situations helps you take protective action.
After Claim Dismissal
Your risk of removal increases significantly if your refugee claim is dismissed. Once the IRB has made a negative decision on your claim, the removal stay expires. If you do not have other applications pending or approved, the CBSA may move to enforce any removal order that was previously issued.
Security or Criminality Issues
If you are deemed to be a security risk or are convicted of a crime, your removal stay may be affected. In cases involving security concerns or serious criminal convictions, you may be subject to different rules that do not provide the same automatic removal protections as standard refugee claims.
Appeal or Further Applications
If your claim is dismissed, you may be able to appeal to the Refugee Appeal Division (RAD) or apply for a Pre-Removal Risk Assessment (PRRA) or Humanitarian and Compassionate (H&C) application. Filing these additional applications before your claim dismissal becomes final can maintain your protection from removal and prevent the stay from expiring.
Your Rights During the Process
Throughout your refugee claim process, you have important rights that protect you from removal and ensure fair treatment. Understanding these rights helps you make informed decisions about your case.
Right to Stay in Canada
Your primary right is the right to remain in Canada while your claim is being decided. The automatic removal stay ensures that you can remain in Canada legally throughout your claim process without fear of deportation.
Right to Legal Representation
The right to be represented by a lawyer or authorized immigration consultant at a hearing and throughout a claim exists. Legal representation significantly improves chances of success and helps protect rights.
Right to Appeal
If a claim is dismissed, the right to appeal to the Refugee Appeal Division within 30 days of receiving the decision exists. A stay of removal may also be requested while an appeal is pending.
Right to Information
The right to receive clear information about a case, responsibilities, and what to expect throughout the process exists. Both IRCC and the IRB have obligations to provide information in a language the individual understands.