Deportation / Removal Orders/ PRE-Removal Risk Assessments
Facing removal is an unbelievably stressful time for foreign nations. To make matters worse, individuals can be taken advantage of and be given dishonest advice about filing inappropriate applications and spend thousands in legal fees. Knowing your options, being informed and understanding what is realistic are critical at this stage of the process. Here at Bellissimo Immigration Law Group PC, we have decades of experience working on these types of challenging cases. Responding takes energy, focus, and candid conversations regarding the best way to proceed. Mr. Bellissimo and our team are leaders in this area of law. We have taught and written several books to assist other lawyers and consultants to navigate this area of law. Please click here for our Publications page to obtain more in-depth information.
In terms of general background information get informed, please consider the following:
Have you been issued an Immigration Removal Order?
Types of Removal Orders and their Consequences
- Departure Order
- Exclusion Order
- Deportation Order
In Canada, Removal Orders may arise in the following circumstances – including after the issuance of a Section 44 Report speaking to the grounds for removal and bans from Canada:
- The Immigration Division (ID) or Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) determines that a Removal Order should be issued after a hearing, and issues an Order
- A Canada Border Services Agency (CBSA) Officer issues a Removal Order after an examination, or
- An individual submits a refugee claim, and receives a conditional Removal Order that will come into effect shortly after any refusal or abandonment of said refugee claim
If you have received a Removal Order, it is important to understand the type of Removal Order you have received, its consequences to your present time in Canada and any future time, as well as whether you can challenge the decision. In all cases, time is of the essence.
Types of Removal Orders and their Consequences
- Departure Orders
Departure orders carry the least amount of consequences. You may be given a departure order for a variety of reasons. For example, you may receive a departure order if you lose your permanent residence status and any appeals you made were refused.
A departure order requires that you leave Canada within 30 days and confirm your departure with the CBSA upon exit from the country. For Refugee/Protected Person claimants, a “conditional departure order” will be issued upon making a claim. Where the refugee claim fails (as well as following a negative decision of any appeals made), the conditional departure order becomes enforceable. If the individual/claimant does not leave Canada within the 30 days and/or does not inform CBSA of their departure from the country, in nearly all cases, the departure order will become a deportation order. If an individual seeks to enter Canada after being deported, they will be required to apply for an “Authorization to Return to Canada” (ARC) as will be explained below.
- Exclusion Orders
Similar to Departure orders, an exclusion order requires the foreign national to leave Canada, confirming departure with the CBSA upon exit from the country. However, exclusion orders include a time period for which a foreign national is barred from entering Canada. Depending on the reasons for which the exclusion order was issued, the foreign national will be barred from making an application to return to Canada for one or five years depending on the circumstances. Exclusion orders can be issued by CBSA officers at a port of entry and as a consequence of a hearing at the IRB. Exclusion orders can be issued for violating immigration law, for example, arriving to Canada without a proper visa, overstaying after the expiration of a visa or working and/or studying without proper authorization. These breaches often result in exclusion orders for a time period of one year. However, where a misrepresentation finding is made, the ban from entering Canada is for five years among other consequences.
It is important to note that if the exclusion order is made within Canada, the exclusion period begins from the date the foreign national leaves the country whereas if the exclusion order is made from outside Canada, the exclusion order begins from the date on the exclusion order. If a foreign national seeks to return to Canada during the restricted period an application for ARC is required.
*NOTE* Prior to November 2014, an exclusion order made on the grounds of misrepresentation would hold a penalty of 2 years as opposed to 5.
- Deportation Orders
Deportation orders carry lasting consequences. Deportation orders often arise when a departure order is issued but the foreign national does not leave within 30 days of the Order and/or does not inform CBSA of voluntary departure. Where a deportation order is made, the foreign national is barred permanently from entering Canada. The recipient of a deportation order will require an “Authorization to Re-Enter Canada” (ARC) to return to Canada. For more information on ARCs, click here.
What Happens if You Fail to Appear for Removal?
Removal Orders require that you leave Canada in all cases. If you fail to appear for a removal interview or fail to appear on the removal date, CBSA will issue a Canada-wide warrant for your arrest. Once arrested, CBSA may detain you and place you in a holding facility or provincial correctional facility before removal. CBSA may also assign an officer to accompany you on your departure to ensure that you leave Canada. If you leave Canada under a Departure Order or an Exclusion Order and the time period for which you are barred from Canada has elapsed, you may be eligible to apply to return to Canada. However, please note that you must ensure that you are not inadmissible under other grounds (criminality, security concerns, etc.)
Reasons for Delays
There are several reasons for which a delay may occur in the enforcement of a removal order.
1. Challenges to Removal Orders
Permanent Residents may have a right to appeal a Removal Order to the Immigration Appeal Division (IAD).
Whether you have a right of appeal as a permanent resident will depend upon why the Removal Order was issued. If it has been determined that you are inadmissible for organised criminality, crimes against humanity, espionage, or other more serious forms of security concerns, there will be no right of appeal. Also, if you are found to be inadmissible for serious criminality (a crime that holds a maximum sentence of 10 years or more) and received a sentence of detention of six months or more in Canada, you will not have a right of appeal. In these circumstances, you may still challenge the decision to the Federal Court of Canada. For more information on the Federal Court, click here.
Foreign Nationals may not appeal their Removal Orders to the IAD. However, the decision to issue a Removal Order may still be challenged to the Federal Court of Canada.
2. Pre-Removal Risk Assessment Applications
If you fear returning to your country of nationality or habitual residence, you may be eligible to make an application for Pre-Removal Risk Assessment (PRRA) to have your risks assessed prior to removal. In order to determine if you can submit a PRRA, the CBSA will assess your eligibility once the removal process has begun. You may not apply for a PRRA unless the CBSA has notified you that you may do so. If you are eligible for a PRRA, a removal generally cannot usually proceed until a final decision has been rendered on this application.
i. Who may apply for a PRRA
A person in Canada, other than a protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned, may apply for a PRRA if they are subject to a removal order that is in force or are named in a security certificate. This includes:
- a person who did not previously seek protection;
- a previous post-determination refugee claimant in Canada class (PDRCC) claimant;
- certain failed refugee claimants;
- an ineligible refugee protection claimant (with exception);
- a person at a port of entry (POE) who claimed protection after a removal order was issued;
- a person inland who claimed protection after a removal order was issued;
- a person named in a security certificate;
- a person who is determined to be in admissible on grounds of security, violating human or international rights or organized criminality or someone who is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or for a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
- a person who made a claim to refugee protection that was rejected by the IRB on the basis of section F of Article 1 of the Refugee Convention; and
- a person named in a security certificate for which the Minister of Public Safety Canada and the Minister of Citizenship and Immigration have signed a certificate referred to in section 77(1) of the IRPA.
ii. Who cannot apply for a PRRA
Generally, the exceptions relate to persons who already have protection or have other means of seeking protection. A person may not apply for a PRRA if they are:
- Protected persons and Convention refugees;
- Persons subject to an authority to proceed (ATP) under the Extradition Act;
- Claimants coming from a safe third country;
- Certain unsuccessful refugee claimants and previous PRRA applicants.
- subject to an authority to proceed issued under section 15 of the Extradition Act;
- have made a claim to refugee protection that has been determined to be ineligible as per the Safe Third Country Agreement under Paragraph A101(1)(e);
- (subject to subsection 112(2.1) of the IRPA)* less than 12 months, or, in the case of a person who is a national of a country that is designated under subsection 109.1(1)[3], less than 36 months, have passed since:
- in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review:
- the day on which their claim for refugee protection was rejected by the Refugee Protection Division, unless:
- it was deemed to be rejected under subsection 109(3) of the IRPA; or
- it was rejected on the basis of section E or F of Article 1 of the Refugee Convention;
- the day on which their claim for refugee protection was determined to be withdrawn or abandoned by the Refugee Protection Division; or
- the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister; or
- the day on which their claim for refugee protection was rejected by the Refugee Protection Division, unless:
- in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review:
-
- in any other case, the latest of:
- the day on which their claim for refugee protection was rejected by the Refugee Protection Division**, unless:
- it was deemed to be rejected under subsection 109(3) of the IRPA; or
- it was rejected on the basis of section E or F of Article 1 of the Refugee Convention;
- the day on which their claim for refugee protection was determined to be withdrawn or abandoned by the Refugee Protection Division**;
- the day on which their claim for refugee protection was rejected by the Refugee Appeal Division, unless it was rejected on the basis of section E or F of Article 1 of the Refugee Convention**;
- the day on which their claim for refugee protection was determined to be withdrawn or abandoned by the Refugee Appeal Division**;
- the day on which the Federal Court refused their application for leave to commence an application for judicial review or denied their application for judicial review, with respect to their claim for refugee protection, unless:
- that claim was deemed to be rejected under subsection 109(3) of the IRPA; or
- that claim was rejected on the basis of section E or F of Article 1 of the Refugee Convention
- the day on which their application for protection was rejected or determined to be withdrawn or abandoned by the Minister**; and
- the day on which the Federal Court refused their application for leave to commence an application for judicial review or denied their application for judicial review, with respect to their application for protection.
- the day on which their claim for refugee protection was rejected by the Refugee Protection Division**, unless:
- in any other case, the latest of:
*Exemptions under subsection 112(2.1) of the IRPA are as follows – the Minister may exempt from the application of the above:
- the nationals – or, in the case of persons who do not have a country of nationality, the former habitual residents – of a country;
- the nationals or former habitual residents of a country who, before they left the country, lived in a given part of that country; and
- a class of nationals or former habitual residents of a country.
**If there was more than one such rejection or determination, the day on which the last one occurred.
Certain unsuccessful refugee claimants or previous PRRA applicants may be barred from applying for a PRRA. The 12-month PRRA bar applies to:
- persons who have received a negative decision from the IRB on a claim for refugee protection;
- persons who have received a negative decision from IRCC on a past PRRA application; and
- persons who have received a negative decision from the Federal Court on an application for leave or judicial review regarding a claim for refugee protection or a PRRA decision
The 12-month PRRA bar does not apply to individuals whose:
- refugee claim has been rejected on the basis of sections E or F of Article 1 of the Refugee Convention; or
- refugee protection has been vacated under subsection A109(3).
Exemptions from the 12-month bar are in place for nationals from the certain countries where conditions have changed such that certain people could be subject to a risk within the meaning of sections A96 and A97. For the list of countries subject to the exemptions, please see the full page.
iii. Notification and Submission of PRRA Application
As mentioned above, a person may not apply before being given notification of their entitlement to apply for PRRA, excluding PRRAs at ports of entry (POEs) and subsequent PRRAs. Once the person is removal-ready, the CBSA issues a PRRA notification. Notification is normally made in person by a Canada Border Services Agency (CBSA) removals officer who provides the candidate with a PRRA application kit.
The candidate has 15 days to apply (7 additional days for those who are notified by mail) plus an additional 15 days in which to provide written submissions in support of their application.
iv. Regulatory stay of removal
Except for subsequent PRRA applicants, when a person is notified of their entitlement to apply for a PRRA, their removal order against them becomes subject to a regulatory stay of removal. If the person applies within the 15-day application period (7 additional days for those who are notified by mail), the stay is maintained until a decision is made on the PRRA application.
Subsequent PRRA applicants do not benefit from a regulatory stay of removal.
v. Assessment of PRRA Applications and Circumstances
Previous Refugee Claimants
For previous refugee claimants, evidence that is provided is limited to that which:
- arose after the rejection of their claim by the IRB;
- was not reasonably available; or
- the applicant could not reasonably have been expected in the circumstances to have presented to the IRB at the time of the rejection of the claim.
Subsequent PRRA Applicants
A foreign national who is subject to a removal order that is in force and whose previous PRRA application has been refused, abandoned or withdrawn may apply for subsequent PRRA as long as they are not subject to the 12-month bar on PRRA applications.
Assessment of subsequent PRRA applications is limited to risk factors that have arisen since the last PRRA assessment, unless the officer is satisfied that it would be in the interests of justice to revisit an issue dealt with in a previous PRRA. Furthermore, as mentioned above, subsequent PRRA applicants do not benefit from a regulatory stay of removal.
Applicants described in subsection 112(3) of the IRPA
Certain applications submitted by people described in subsection A112(3)—those who are determined to be inadmissible on grounds of security, violating human or international rights or organized criminality or serious criminality—are not assessed against Refugee Convention grounds.
People subject to security certificates
If you are a permanent resident or a foreign national who is subject to a certificate, signed by the Minister of Citizenship and Immigration and the Minister of Public Safety, stating that you are inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, contact the Immigration Program Guidance Branch for guidance on security certificate cases.
3. Travel Documents/Identity
The CBSA may need documents (passports, travel documents etc.) that will allow you to enter the country to which you are being removed to. Similarly, the CBSA may have trouble obtaining passports to confirm the identity or citizenship of the individual being removed.
4. Administrative Deferral of Removals (ADR)
An ADR serves as a temporary tool to defer a removal in situations where the country to which an individual will be removed to is suffering from a humanitarian crisis. The ADR is not meant to address persistent and systematic human rights problems which constitute individualized risk. Once the country stabilizes, the ADR can be lifted and CBSA will enforce removal orders. An individual who is inadmissible for criminality (serious or other), international or human rights violations, organized crime or security can still be removed despite the ADR.
5. Temporary Suspension of Removals (TSR)
Similar to an ADR, a removal order may be suspended where the country to which an individual is being removed is subject to a risk that threatens the entire civilian population. This can include an armed conflict or an environmental disaster or other events that interrupts typical living conditions. Like an ADR, an individual who is inadmissible for criminality, international or human rights violations, organized crime or security can still be removed regardless of a TSR.
*NOTE* – If your removal order is suspended because of an ADR or TSR, you may be able to apply for a work permit or a study permit.
Bellissimo Immigration Law Group PC has extensive experience representing individuals facing removal. We are familiar with the legal processes as these cases can be extremely complex, and any response must be comprehensive, concise, and compelling. Please contact us today to find out your options!
