The CBSA has given you a date. You have a plane ticket you did not buy and a list of things to bring to the airport. You may also have an application still in process, children in school here, or a risk you believe was never properly assessed. A stay of removal from the Federal Court is the last legal step that can stop the removal while those issues are decided.
Start with a deferral request
Before going to court, the usual first step is a written request to the CBSA officer to defer removal. Officers have limited discretion. They can defer for reasons such as a pending application that is close to a decision, a medical problem that makes travel unsafe, or a short delay to let a child finish a school term. They generally cannot reassess risk or humanitarian factors that another decision-maker has already considered.
A refused deferral request is itself a decision that can be challenged in the Federal Court, and it often becomes the basis for the stay motion. Our post on removal orders explains the deferral process in more detail.
A stay needs an underlying case
The Federal Court can only stay removal as part of a case already in front of it. That underlying case is usually an application for leave and judicial review of:
- a negative PRRA or H&C decision,
- a refusal of the deferral request, or
- another decision that bears on your removal.
If there is no underlying application, there is nothing to attach the stay to. That is why the timing of the leave application matters. Our post on judicial review at the Federal Court walks through the general process.
The three-part test
To get a stay, you must show all three of the following:
- A serious issue in the underlying case. For most cases, this means an issue that is not frivolous. Where the underlying case is a refused deferral request, the bar is higher: you must show the challenge is likely to succeed.
- Irreparable harm if you are removed before the case is decided. This means harm beyond the ordinary consequences of removal, such as a real risk to your safety, serious harm to a child’s interests, or a medical condition that cannot be managed in the destination country. It must be supported by evidence, not assertion.
- Balance of convenience in your favour. The Court weighs the harm to you against the public interest in carrying out removal orders promptly. Past compliance with immigration requirements helps. Missed interviews and delays in coming forward weigh against you.
How fast it moves
Stay motions are decided in days, not weeks. The motion record, including a sworn affidavit, the evidence and written argument, must be served and filed quickly after the removal date is set. The hearing is usually by video or phone, and decisions often come the day before, or the morning of, the scheduled removal.
Waiting until the last moment makes a stay harder to get. The Court expects people to act as soon as removal is scheduled.
Situations with automatic protection
In some situations, removal is stayed by law without a court motion, for example while certain appeals are pending or after a PRRA application is properly made in response to an offer from the CBSA. Whether one applies depends on the exact procedural position of your case, so check before assuming. Our post on PRRA applications explains how PRRA timing works.
If the stay is refused
A refused stay means removal can proceed. The underlying judicial review can continue after you leave, and a successful outcome may still matter, but it will not bring you back automatically. If you are removed under a deportation order, you will need an Authorization to Return to Canada before coming back.
How we can help
At Kabir & Alam, we prepare deferral requests and Federal Court stay motions on short timelines, and we handle the underlying judicial review. If a removal date has been set, contact us immediately. Read more about our immigration litigation practice or book a consultation with us.
This post is general information about Canadian immigration law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.