Being issued a removal order is not necessarily the end of the road. In many cases, removal orders can be challenged, stayed, or may never come into force at all.
Most commonly, this issue arises in refugee matters. A refugee claimant is typically subject to a removal order that is not enforceable while their claim is pending. That order only becomes enforceable if the refugee claim is ultimately refused.
Under section 49 of the Immigration and Refugee Protection Act (IRPA), a removal order becomes enforceable when one of the following occurs: the order is issued and there is no right of appeal; the time to appeal expires without an appeal being filed; or an appeal is filed and dismissed.
Even when a removal order is enforceable, enforcement may still be stayed in certain circumstances. For example, section 50 of IRPA provides that removal is stayed where the person concerned is serving a sentence of imprisonment. Immigration law also permits coordination between immigration authorities and the Attorney General of Canada, or a provincial Attorney General, allowing for criminal proceedings to be withdrawn or stayed in order to facilitate removal.
In many cases, removals are automatically stayed while the Federal Court determines whether leave for judicial review will be granted, most often following the refusal of a refugee claim. An important exception applies where the person is inadmissible due to serious criminality, in which case no automatic stay is available.
Refugee claimants whose applications have been rejected by both the Refugee Protection Division and the Refugee Appeal Division must be particularly mindful of timelines. An application for judicial review must be filed with the Federal Court within 15 days of the decision. If this deadline is missed, the removal stay will lapse and enforcement may proceed.
Canadian immigration law also allows for stays of removal in situations involving armed conflict, generalized violence, or natural disasters in the country of removal. Where a person is eligible to apply for a Pre-Removal Risk Assessment (PRRA), removal is stayed until a decision is made on that application.
In practice, many individuals seek legal assistance only after all applications have been refused and no proceedings are pending. What is often misunderstood is that a stay of removal generally requires an active legal process, most commonly an application for judicial review, challenging a specific refusal decision. Without a decision under review, there is nothing for the court to assess, and no legal basis upon which a stay can be granted.