Stay Of Removal Order
If you have been served with a removal order, and a Notice to Report, indicating that your deportation from Canada is imminent, you may have one more opportunity to try and stop your removal, and remain in Canada. By making an application to the Federal Court, you can seek a “stay” of your removal. In doing so, you are asking the Court to halt your removal order, usually temporarily, so that you can pursue other immigration options that may already be pending.
The nature of these requests usually means that they are done on an emergency basis, at the very last minute. A lot of work needs to be done in a short period of time, as you need to be able to make the most convincing argument possible as to why you should not be deported.
The process for stay of removal
To attempt to stay your removal, you or your legal counsel will essentially need to take three important steps:
- Make a formal request from the CBSA to defer your removal;
- Assuming that you do not receive a response to the deferral request (usually because it is done fairly last minute) begin an application for leave and judicial review at the Court to challenge the fact that no decision has been made, or a refusal (if the request was refused);
- Commence and argue a motion for a stay at the Federal Court of Canada.
The process of a stay motion tends to be complicated and stressful. For your lawyer, there is a lot of work to get done in a very short period of time. For you, you may be facing imminent removal from Canada, trying to plan to both leave and remain in Canada at the same time. For this reason, it is important to have a diligent and experienced immigration lawyer on your legal matter, so that you can make arrangements as necessary for your personal matters, in the event that your stay motion is refused, and your deportation order is upheld.
If your motion for a stay is refused, then your deportation will take place, and you will be removed from Canada on the date indicated by the CBSA.
If your motion for a stay is granted by a Federal Court judge, then you will be allowed to stay in Canada, usually under a set of very specific conditions. Most stay orders are temporary in nature, and allow you to see through an existing immigration application, or allow for something specific to happen (i.e. to allow your children to finish the school year, etc.). If you are given conditions under which to remain in Canada, if you breach those conditions, you will likely be subjected to another deportation process, and likely removed.
If your stay is granted for a temporary period of time, at the end of that period you may be given an opportunity to have a further hearing before the Court, where one of the following decisions will be made:
- Your stay of removal may be extended with the same or different conditions
- Your stay of removal may be cancelled, which means deportation
- Your removal order will be cancelled, which means that you are allowed to stay in Canada indefinitely.
The Legal Test
In an argument before the Court for a stay of removal, there is a three-part legal test that is applied to determine whether your removal should be stayed. That test considers:
- Whether there is a serious issue to be tried?
- Whether the applicant would suffer irreparable harm if s/he was to be deported?
- Whether the balance of convenience lies in the Applicant’s favour. This means that consideration is given to the party who would suffer the most harm, should the stay be either granted or refused.
Some arguments that may be considered during your stay of removal hearing (depending on the circumstances of your case) may include the psychological or physical harm, should your stay be rejected. If there are children involved in any part of the application, or even tertiarily involved in the life of the applicant, then the Court should consider whether the best interests of that child have been considered in the decision to follow through with a deportation.
Stays of removal are complex and technical processes which require a great deal of knowledge of the law in this area. It is highly recommended that you hire a lawyer who specializes in immigration law so that can start this process with a chance of success.
If the stay is granted, it is typically for a specified period of time and usually because you have another application pending.
Notes for Presentation to the County of Carleton Law Association (Federal Court – Stays of Removal)