Removal from Canada

• Author: Sasha Baglay/Martin Jones
• Pages: 408-442

408

CHAPTER 12

REMOVAL FROM

CANADA

A. INTRODUCTION

Similar to immigration arrest and detention, removal can be applied

only to foreign nationals and permanent residents. It is used as a tool

to protect Canada’s security and the Canadian public from dangerous

persons and to expel those who are no longer entitled to stay in Can-

ada. Foreign nationals can be removed once their authorization to be

in Canada expires or is cancelled due to inadmissibility. Permanent

residents may also be subject to removal on specif‌ied grounds of in-

admissibility (e.g., non-compliance with the residency obligation or

serious criminality). These grounds are used as a basis to f‌irst strip

the permanent resident of his status and then subject him to removal.

Convention refugees and persons in need of protection are shielded

from removal by the principle of non-refoulement, whether or not they

became permanent residents.1 Unsuccessful refugee claimants do not

enjoy such protection, so can be removed once refugee determination

and any available recourse against a negative decision are completed.2

For removal to occur, the following basic conditions must be satis-

f‌ied. First, the government must have the legal authority to remove

1 Immigration and Ref ugee Protection Act, SC 2001, c 27, s 115 [IRPA].

2 Not all applicant s enjoy automatic stay of removal upon applicat ion for judicial

review. Thus, they can b e removed prior to completion of judicial rev iew, unless

they obtain a cou rt-ordered stay. Please see Section D, below in t his chapter,

and Chapter 10 for furt her discussion.

Removal from Can ada409

the individual, something that is normally accomplished through the

issuance of a removal order. Second, removal must comply with the

general obligations of non-refoulement of refugees and the prohibition

of refoulement to torture as well as various other statutory, regulatory,

or court-ordered stays of removal that may be in place. However, due

to the exception to non-refoulement under the ConventionRelating to

the Status of Refugees as well as the Supreme Court decision in Suresh

v Canada (Minister of Citizenship and Immigration)3(see Chapter 2,

Sections C(1) and F(3)), it is possible to initiate removal of protected

persons. Further, if application for cessation of refugee protection is

granted (see Chapter 4), a protected person loses both protected per son

status and permanent residence (if acquired), becomes inadmissible

to Canada, and can be subject to removal. Third, the person facing

removal must have a right to enter a destination country, or a country

that agrees to accept him. Fourth, a person who is subject to removal

must be in possess ion of the documents required for travel (specif‌ica lly,

those required for admission to the destination country). Given that

states are usually willing to admit only their own nationals or perma-

nent residents, arranging for the removal of stateless persons can be

particularly diff‌icult.

This chapter will discuss each of the core aspects of the removal

process in the sequence outlined above: the various categories of re-

moval orders; stays of removal; pre-removal risk assessment (PRRA);

and the making of removal arrangements. This discussion is mainly

relevant to cases of rejected claimants, although it also outlines prin-

ciples that are generally applicable to removal of other non-citizens.

B. REMOVAL ORDERS

When a person makes a refugee cla im in Canada, she is issued a “condi-

tional” removal order. The mere fact of making a refugee claim does not

result in the removal order. Rather, collateral facts related to or aris-

ing from the mak ing of a refugee claim are most commonly the basis of

the inadmissibility allegations. These grounds include the inability of

the claimant to f‌inancially support himself while in Canada4 and non-

compliance with the requirement of the Immigration and Ref ugee Protec-

tion Act that, as an ind ividual seeking to remain indef‌initely in Canada,

3 [2002] 1 SCR 3 [Suresh].

4 IRPA, above note 1, s 39.

REFUGEE L AW410

he should be in possession of a passport and an immigrant visa.5 In a

few cases, removal orders based on other grounds, such as criminality,

will also b e sought against refugee claimants (see Appendix D, Table 10,

for a breakdown of all removals by ground).

The removal order is “conditional” on the outcome of the refugee

claim: where a claim is successful the removal order is deemed void

upon the individual acquiring permanent residence.6 On the other

hand, where a refugee claimant is unsuccessful, the removal order will

come into force on the latest of the following days:

1) the day the claim is determined to be ineligible for a refugee

hearing under s ection 101(1)(e) of the IRPA (claimant came from

a safe third country);

2) in a case other than that set out in pa ragraph (a), seven days after

the claim is determined to be ineligible for a refugee hearing be-

fore the Refugee Protection Div ision (RPD);

3) if a claim is rejected by the RPD, upon expiry of the prescribed

time limit for an appe al to the Refugee Appeal Divis ion (RAD) or,

if the appeal is m ade, f‌ifteen days after the R AD rejects the claim;

4) f‌ifteen days after the notif‌ication that the claim is declared with-

drawn or abandoned; or

5) f‌ifteen days af ter proceedings are termin ated as a result of notice

under section 104(1)(c) of the IRPA (notice that a claim is ineli-

gible for reasons of misrepresentation or withholding material

facts or if it is a repeat claim).7

Most rejected refugee claimants fall under the f‌ifteen-day time limit

outlined in the IRPA, section 49(2)(c). For claimants who have the right

to appeal to the RAD, the delay in the conditional removal order comi ng

into effect allows for the f‌iling of an appeal and subsequently, if the ap-

peal is rejected, for f‌iling a judicial review application of that rejection.

The Immigration and Refugee Protection Regulations establish a f‌ifteen-

day time limit for f‌iling of a RAD appeal and give another f‌ifteen days

to perfect that appeal.8 The wording of the legislation does not make it

clear whether the removal order under section 49(2)(c) is stayed for the

f‌ifteen days for f‌iling the appe al or for the cumulative thir ty-day period

to f‌ile and perfect the appeal. As some authorities note, the section is

5 Ibid, ss 20 and 41(a); Immigration and Refugee ProtectionRegulations, SOR/20 02-227,

ss 6 and 50 [Regulations].

6 IRPA, above note 1, s 51.

7 Ibid, s 49(2).

8 Regulations, above note 5, s 159.91(1).