Stays of Removal (Removal Appeals)
If a foreign national has been issued a removal, departure or deportation order, they may be eligible to request a stay of their removal. A stay of removal is essentially a permanent or temporary stop to the removal process.
There are two ways in which a foreign national can request a stay of removal:
- With the Immigration Appeal Division; or
- With the Federal Court of Canada.
Stay of Removal with the Immigration Appeal Division
If a foreign national with a permanent resident visa, a refugee or a permanent resident of Canada have been ordered to be removed from Canada, they have a right to appeal the decision to the Immigration Appeal Division.
A removal order issued by the Immigration Division or by the Canada Border Services Agency (CBSA) must be appealed within 30 days. If the Immigration Appeal Division allows the appeal, then the removal order is set aside and the person is allowed to remain in Canada. If the Immigration Appeal Division dismisses the appeal, CBSA will commence the removal process.
The Immigration Appeal Division may also decide to stay the removal order instead of making a decision to allow or refuse the appeal. By staying the removal order, the foreign national will be allowed to temporarily stay in Canada until a decision is made.
Often when a stay of removal is issued, conditions will be imposed on the foreign national, such as reporting to an Immigration Canada office on a regular basis, and keeping good behaviour.
Stay of Removal with the Federal Court
A foreign national may also submit a request for a stay of removal with the Federal Court of Canada. A motion must be submitted requesting that the removal be suspended on a temporary basis. A stay of removal filed with the Federal Court is filed in conjunction with an application for leave and judicial review of a refusal of an immigration application or refugee claim. If there is no underlying application for leave and judicial review, then a foreign national cannot file a stay of removal with the Federal Court.
When filing this motion with the Federal Court, a foreign national must demonstrate that:
- That there is a serious issue to be tried in the underlying application for leave and judicial review;
- That they would suffer irreparable harm if they were removed from Canada, such that they face serious risk to their life or serious harm in their home country; and
- The balance of convenience weighs in favour of granting the stay, rather than in favour of them being removed from Canada.
If the application for a stay of removal is granted, the foreign national’s removal will be postponed until a decision is made on the underlying application for leave and judicial review. If the application for a stay of removal is dismissed, the foreign national will need to leave Canada as instructed.
If you have been issued a removal order, and are considering your options, it is recommended that you seek legal advice as soon as possible.