When a foreign national is ordered to leave Canada by a certain date, it is possible to contest a removal order through a deferral request and stay of removal proceedings. In the best-case scenario, the removal can be postponed. In other words, it is not possible for our immigration authorities to halt the removal for an indefinite period of time.
Deferral request:
Canadian Border Services Agency (CBSA) will generally give the foreign national a month or so to purchase a one-way ticket and make necessary arrangements for leaving Canada. It is possible to ask CBSA directly to have the scheduled removal deferred.
A deferral request should be accompanied with carefully selected supporting documentation explaining why the foreign national should be allowed to remain in Canada. There must be compelling reasons warranting a deferral, such as: short-term best interests of children remaining in Canada, specific irreparable harm that the removal will cause to the foreign national or/and their family in Canada, etc.
Deferral requests should be sent to CBSA as soon as reasonably practicable.
Stay of removal:
If CBSA denies the deferral request, one can ask the Federal Court to stop the removal through a stay of removal proceeding. This proceeding involves a series of steps:
- filing an Application for Leave and for Judicial Review;
- filing a Motion for a Stay of Removal;
- filing a Motion Record; and
- if applicable, attending a court hearing.
The main issue is that all the work outlined above have to be done in a very short period of time and before the scheduled removal date. This is why it can be challenging to find a lawyer willing and able to accept the matter. Immigration consultants are not allowed to appear before the Federal Court.
Motions for stays of removal must be brought as soon as possible.
Judicial review:
If the Federal Court accepts the motion for a stay of removal and halts the removal temporarily, another set of proceedings will be initiated before the Federal Court. These proceedings will deal with the judicial review of the underlying application mentioned in step #1 above. The judicial review process also entails several steps, which can take months to unravel. Ultimately, the Federal Court can:
- cancel the removal order;
- extend the stay of removal; or
- order the foreign national to leave Canada.
Stays of removal are very complex and Ms. Joundi’s LLM Thesis published in June last year provides a comprehensive overview of this subject.