July 6, 2021
The Silent Canadian Deportation Order – Now You Know
We see so many individuals each year that are unaware that when they claimed refugee (protected person) status they also received a conditional removal order that quietly, without any further notice, without any bells and whistles becomes a permanent deportation order. If a foreign national’s refugee claim is successful as one example no one pays any attention to that conditional removal order as it does not take effect. So, with respect to a refugee protection claimant, the removal order does not come into force under A49(2) until specific events have passed.
At the time the removal order is made, it is not in force and is conditional until it comes into force on the latest of a number of potential events that can occur on different dates including:
- The day the claim is determined to be ineligible under section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) if the claimant came directly or indirectly to Canada from a country designated by the Regulations, other than a country of their nationality or former habitual residence – see section 49(2)(a) of the This finding happens early in the process and before any refugee hearing.
- Then if not #1 cited above there are a number of other potential important dates:
- (a) 7 days after the claim is determined to be ineligible see section 49(2)(b) of the IRPA – again early in the process.
- (b) Or – 15 days after notification that the claim has been rejected by the Refugee Protection Division (RPD) if no appeal is made, or by the Refugee Appeal Division (RAD) if an appeal is made see section 49(2)(c) of the IRPA – this is after your hearing and potentially an appeal to the RA
- (c) Or – 15 days after notification that the claim is declared withdrawn or abandoned see section 49(2)(d) of the IRPA by either the RPD or RAD – when you decide not to pursue your claim or appeal or you do not attend and the RPD or RAD declare your claim or appeal abandoned.
- (d) Or – 15 days after proceedings have been terminated as a result of a notice that the claim was based on misrepresentation under section 104(1)(c) of the IRPA or the claim was not the first one made by the claimant under section 104(1)(d) – see section 49(2) (e) of the IRPA.
It depends for points 2 (b) and 2 (c) if the decision was given in person or in writing and when the decision is received. After a decision takes effect, there is a 15-day period for the removal order to come into force. So, we know the clock begins ticking after 15 days but what does this mean?
Well like the old game of snakes and ladders one has to go through the IRPA and then the Immigration and Refugee Protection Act Regulations (IRPR) to learn more. Section 229(2) of the IRPR confirms that a departure order is the applicable removal order for a refugee claim that has been deemed eligible to be referred to the RPD or no determination has been made. Next, we need to look at subsection 224(2) of the IRPR:
224 (2) A foreign national who is issued a departure order must meet the requirements set out in paragraphs 240(1)(a) to (c) within 30 days after the order becomes enforceable, failing which the departure order becomes a deportation order.
So, if we follow the math within 7 or 15 days of being deemed ineligible, withdrawing, abandoning or receiving a negative decision, one has 30 days before the departure order becomes a deportation order. If that is not enough to consider, there are certain additional steps you must take to avoid the silent deportation order. This is set at section 240 of the IRPR:
When removal order is enforced
- 240(1) A removal order against a foreign national, whether it is enforced by voluntary compliance or by the Minister, is enforced when the foreign national
- (a)appears before an officer at a port of entry to verify their departure from Canada;
- (b)obtains a certificate of departure from the Canada Border Services Agency;
- (c)departs from Canada; and
- (d)is authorized to enter, other than for purposes of transit, their country of destination.
- When removal order is enforced by officer outside Canada
(2) If a foreign national against whom a removal order has not been enforced has departed from Canada and applies outside Canada for a visa, an electronic travel authorization or an authorization to return to Canada, an officer shall enforce the order if, following an examination, the foreign national establishes that they are the person described in the order.
- When removal order is enforced by officer in Canada
(3) A removal order against a foreign national is enforced by an officer in Canada when the officer confirms that the foreign national has departed from Canada.
- Application of subsections (2) and (3)
(4) For greater certainty, subsections (2) and (3) apply in respect of any removal order made before the day on which those subsections come into force.
That time period can run after a failed challenge at the Federal Courts but not after making a humanitarian and compassionate grounds application or even a Pre-Removal Risk Assessment. By that time even if you leave within 30 days of a negative decision you will be departing Canada with a deportation order and require an Authority to Return to Canada at the minimum depending upon other issues.
Neither the RPD, RAD nor Federal Courts indicate in a final negative decision that the clock is running. Questions for another day is should they or is it within their area of responsibility to do so? In either case, once someone claims refugee status they in many cases unwittingly enter a heavy and tangled removal process that carries serious and life altering consequences.
It is particularly disturbing to see individuals improperly counselled to make a refugee claim in many cases for the perceived benefit of immediate work and health coverage while other pathways existed. Instead, most become prey to the silent deportation order lurking in the background quietly waiting to be activated at the end of the road.
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Thank you for reading, and stay well