Stay Of Removal

There are three kinds of removal order which can be issued to non-citizens residing in Canada, and each type of removal order carries with it separate consequences:

  1. Deportation Order
  2. Exclusion Order
  3. Departure Order

deportation order deems an individual “permanently barred” from Canada; they will be arrested by Canada by the Canada Border Service Agency and removed from Canada.  These individuals cannot return to Canada unless they apply for and get approval for an Authorization to Return to Canada (“ARC”). An exclusion order prevents an individual from returning to Canada within a specified period of time (usually 1 year, unless issued for misrepresentation in which case it would be 5 years).  If an individual wishes to enter Canada during the period of exclusion, they need to apply for and have an ARC approved. A departure order allows an individual to voluntarily leave Canada within 30 days after which it becomes a deportation order.

An individual can receive a removal order in a variety of circumstances. These include: asylum seekers who receive conditional removal orders when they make a claim, and if their claim is rejected, the removal order becomes enforceable; visitors who breach the conditions of or overstay a visa; permanent residents convicted of criminal offences; and failed permanent resident applicants who applied from inside Canada.

Permanent residents who have been issued a removal order have the option of appealing this decision to the Immigration Appeal Division (IAD), unless they have been found inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. In some cases the order is neither allowed nor withdrawn, and instead is stayed. A stay suspends the enforcement of a removal order for a period of time and usually attaches case appropriate conditions. Typical conditions include:

  • Regular reporting to the CBSA
  • Not commit an offence under an Act of Parliament
  • Keeping the peace and good behaviour, and
  • Making reasonable efforts to seek and maintain full-time employment.

At the end of the court-specified period, the appeal of the removal order is re-evaluated at which point the appeal can be allowed, dismissed, or the stay can be extended.

A second way to obtain a stay of a removal order is through the Federal Court. Here, a motion is submitted to the court requesting an individual’s removal be temporarily suspended on specific grounds including: that the individual faces serious harm in the country of their citizenship, they are involved in an ongoing judicial process, or they have an application for permanent residence which has yet to be processed.

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