June 23, 2023
Considerations for Removal Order Appeals involving Criminality
If a Permanent resident, Convention refugee, protected person, or a foreign national with a permanent resident visa in Canada has been issued a removal order on the basis of being found inadmissible for criminality, they may have the option to appeal the removal order under subsections 63(2) and 63(3) of the Immigration and Refugee Protection Act (IRPA). However, s. 64 of the IRPA precludes certain individuals from appealing their removal order, specifically those who have been found inadmissible to Canada due to:
- serious criminality punished by a sentence of six months or more of imprisonment;
- organized criminality;
- security grounds; or
- violations of human or international rights.
In addition, the following persons may not appeal a removal order:
- claimants whose refugee protection claim has been rejected;
- foreign nationals without a permanent resident visa; and
- individuals found inadmissible on the ground of misrepresentation, unless they are the spouse, common law partner or child of a sponsor.
The appeal of a removal order must be made, in most cases, within 30 days of receiving the decision that issues the removal order. When a removal order, made following a finding of inadmissibility by the Immigration Division (ID), is appealed to the Immigration Appeal Division (IAD), and the legal validity of the removal order is not being challenged, the IAD can consider humanitarian and compassionate (H&C) reasons as to why the individual should not be removed from Canada. The following factors, referred to as the Ribic factors, may be considered by the IAD Member tasked with the decision-making:
- The seriousness of the offence leading to the issuance of a removal order. Considerations involve: Did the offence involve violence or was it of a sexual nature? Was it an isolated incident or repetitive in nature? Are/is the crime(s) motivated by material gain? How severe was the impact on the victim? Was the victim part of a vulnerable group?
- Possibility of rehabilitation. This is important, as it is not essential for the individual concerned to prove that they are already rehabilitated, but rather demonstrate that they are capable of rehabilitation and that there is potential for them to become rehabilitated. This can be demonstrated through “credible expressions of remorse, articulation of a genuine understanding as to the nature of and consequences of criminal behaviour, and demonstrable efforts to address the factors that gave rise to such behaviour.”
- Length of time spent in Canada and the degree of establishment. Considerations involve: When did the individual first arrive in Canada, and how old were they at the time? Their degree of establishment will look at whether the concerned individual: has been employed or educated in Canada; has any assets in Canada; and has any memberships or involvement in local organizations or their community. Establishment based on fraudulent conduct may also minimize the weight given to this factor (i.e., if their establishment in Canada was only based upon misrepresentation on their previous immigration application(s)).
- Family in Canada and the dislocation caused by removal. Having a large number of immediate family members in Canada can be a strong H&C factor that may aid the concerned individual in an appeal. Further, whether the individual makes a significant financial contribution to their household, if they are actively involved in providing care to any minor children, particularly Canadian citizen children, as well as the closeness of the familial relationships may also be considered.
- Family and community support. Evidence of a strong support network can also be a positive H&C factor in an appeal, not just amongst family members but also within an individual’s broader community. This is particularly important where the individual appealing may be subject to continuing rehabilitation efforts involving counselling, medical treatment, following terms of probation, etc.
- Hardship of return to country of nationality. Considerations include: Does the individual have family or any other support network in the country of return that would be able to assist in resettlement? Does the individual have any medical conditions, and if so, whether any treatment would be available in the country of return? What are the general conditions in the country of return? Are there any exceptional hardships that would result from the individual being uprooted from Canada?
In most cases where the IAD determines there are sufficient H&C factors in favour of the individual appealing their removal order, a stay of removal, or a temporary pause on removal, will be implemented for a specific period of time established by the IAD, for example, three years. During the period of the stay, the IAD also sets out a number of conditions by which the individual subject to the stay of removal must abide, such as reporting to the CBSA every six months, keeping the CBSA and IAD updated of any change in personal circumstances (such as employment, marital status, living conditions, address), and a number of optional conditions depending on the nature of the underlying criminality (such as attending Alcoholics Anonymous, participating in anger management, counselling, psychotherapy, etc.). At the end of the period implemented for the stay, the IAD will review the individual’s circumstances as well as their compliance with the conditions, and determine whether the appeal will be allowed, setting aside the removal order, whether the stay should be extended for an additional period of time (with the same or different conditions), or whether the appeal will be dismissed, making the removal order enforceable.