A removal order is a piece of paper, but the type of order on that paper determines whether you can return to Canada next year, in five years, or only with special permission.
This post explains the three kinds of removal order, what each does to your ability to come back, and the two mechanisms, deferral requests and stay motions, that can delay removal once it has been scheduled.
The three types of removal order
Canadian immigration law uses three removal orders. They are issued by the CBSA, by the Immigration Division after an admissibility hearing, or automatically when a refugee claim fails.
Departure order: The least serious. You must leave Canada within 30 days of the order becoming enforceable and confirm your departure with the CBSA at the port of exit. If you do both, you can return to Canada in future without special permission, subject to meeting the ordinary entry requirements.
If you do not leave within 30 days, or you leave without confirming departure, the departure order automatically becomes a deportation order. This conversion catches many people who assumed that simply leaving was enough. Failed refugee claimants typically receive a departure order that becomes enforceable when their claim is finally rejected.
Exclusion order: You must leave Canada and cannot return for one year without an Authorization to Return to Canada (ARC). If the exclusion order was issued for misrepresentation, the bar is five years. Exclusion orders are common at ports of entry and for people found to have worked or studied without authorization.
Deportation order: The most serious. You are permanently barred from returning to Canada unless you obtain an ARC. Deportation orders are issued for serious criminality, security and human rights grounds, organized crime, and, as noted above, when a departure order is not complied with.
Authorization to Return to Canada
An ARC is a written authorization from IRCC allowing a person subject to an exclusion or deportation order to re-enter. It is a discretionary application.
The officer considers the reason the removal order was issued, how much time has passed, whether the person has since complied with immigration law, why they want to return, and whether they paid the cost of their own removal if the CBSA escorted them.
An ARC is not a visa. A person who obtains an ARC still needs to qualify for a temporary resident visa, eTA, or permanent resident visa in the ordinary way, and any inadmissibility that led to the original order (a criminal conviction, for example) will still need to be addressed separately.
Once removal is scheduled
Section 48 of the Immigration and Refugee Protection Act requires the CBSA to enforce a removal order “as soon as possible.” An enforcement officer’s discretion to delay removal is narrow. There are two tools for delaying removal, and they are usually used together.
Deferral requests
A deferral request is a written request to the CBSA enforcement officer asking that removal be postponed. Because the officer’s discretion is limited, the request must identify a specific reason removal should not proceed now, rather than argue the merits of the person’s immigration situation generally.
The Federal Court of Appeal has described the kinds of factors that can justify deferral: a pending application that was filed in a timely way and that is close to a decision; a short-term impediment such as a medical condition or a child’s school year; or new evidence of risk that has arisen since the last risk assessment. Establishment in Canada, on its own, is not a ground for deferral.
A deferral request should be filed as early as possible after removal is scheduled, with supporting documents, and with a clear request for a written decision. A refusal, or a failure to decide before the removal date, is what triggers the next step.
Stay motions at the Federal Court
If the deferral is refused, the person can file an application for leave and judicial review of the refusal and bring an urgent motion asking the Federal Court to stay removal until the judicial review is decided. The stay motion is heard on short notice, often within days.
The Court applies a three-part test. The applicant must show:
- a serious issue in the underlying judicial review, which in the case of a deferral refusal means a somewhat elevated standard, because a stay would give the applicant the very relief the officer denied;
- irreparable harm if removal proceeds, meaning harm that cannot be undone by a later favourable decision; and
- that the balance of convenience favours the applicant over the Minister’s interest in enforcing the order.
Stay motions are won and lost on evidence. Affidavits, medical reports, evidence of risk, and documents showing the status of pending applications must be assembled quickly and presented in a form the Court can act on.
Filing the stay motion alongside a judicial review of a refused PRRA, H&C or other decision, rather than only the deferral refusal, often gives the Court a stronger serious issue to work with.
Other stays
A few situations produce a stay of removal automatically: being invited to apply for a Pre-Removal Risk Assessment suspends removal until the assessment is decided; some appeals to the Immigration Appeal Division carry a statutory stay; and the government periodically suspends removals to specific countries under an administrative deferral or temporary suspension. None of these should be assumed to apply without checking.
Timing is everything
Once a removal date has been set, the window for action is short and the sequence matters: deferral request first, then judicial review and stay motion if the deferral is refused. People who wait until the week of removal to seek advice leave very little room for any of this to work.
If you have received a removal order, or a direction to report for removal, contact us immediately. We prepare deferral requests and stay motions on an urgent basis.
You can book a consultation here.