Appeal a Removal Order Canada IAD: Who Can Appeal and How It Works

What does it mean to appeal a removal order to the IAD?

A removal order is a formal order that a person leave Canada. In limited cases the Minister may make one directly under s. 44(2) of the Immigration and Refugee Protection Act (IRPA), for example for a permanent resident inadmissible solely for failing the residency obligation, or for a foreign national in prescribed circumstances. Where the report is instead referred for an admissibility hearing, the Immigration Division may make one at the end of an admissibility hearing (IRPA s. 45(d)). The IAD is a separate division of the Immigration and Refugee Board, and the Act names it the competent Division for appeals of this kind (IRPA s. 62).

An appeal asks the IAD to review the order. An application for Federal Court judicial review may not be made until any right of appeal under the Act has been exhausted (IRPA s. 72(2)(a)).

Who can appeal a removal order to the IAD?

The Act gives the right to two groups of people, for removal orders made under s. 44(2) or at an admissibility hearing:

A visitor, student, worker or refugee claimant with none of these statuses does not appear in these provisions. A lawyer can advise on any other route.

When is there no appeal? The serious criminality and other bars

Section 64 of the Act takes the right of appeal away in some cases. A permanent resident or foreign national found inadmissible for security reasons, human or international rights violations, sanctions, serious criminality or organized criminality has no right of appeal to the IAD (IRPA s. 64(1)).

For the purposes of that rule, "serious criminality" has a particular meaning. It covers a crime punished in Canada with a prison term of six months or more, or a crime described in s. 36(1)(b) or (c) (IRPA s. 64(2)). Those two paragraphs deal with offences or acts outside Canada that would carry a maximum penalty of 10 years or more if committed in Canada (IRPA s. 36(1)(b), (c)).

Section 64(2) refers to the punishment imposed in Canada, so whether a particular sentence meets the threshold is a question to check against the court record with a lawyer. A finding on other grounds may leave the right of appeal in place, depending on the exact finding in the order.

For background on how criminal convictions affect status, see the guide on criminal inadmissibility in Canada.

How long do you have to appeal a removal order?

Under the IAD Rules, 2022, a notice of appeal against a removal order must be received by the IAD within 30 days after the appellant receives the removal order (rule 16(b)). The notice is filed together with a copy of the removal order (rule 13(1)(b)).

There is also a shortcut for orders made at an admissibility hearing. At the end of the hearing, a person may give the Immigration Division member the notice of appeal directly (rule 14(1)).

The IAD may extend a time limit even after it has passed (rule 4(e)), but that is a matter for the IAD's discretion. The deadline depends on the facts and should be confirmed with a lawyer immediately.

Does filing an appeal stop the removal?

Under the Act, an appeal affects when a removal order comes into force. Where there is a right of appeal and no appeal is made, the order takes effect the day after the appeal period expires. Where an appeal is made, the order takes effect on the day a final determination confirms it (IRPA s. 49(1)(b) and (c)).

In practical terms, the statute ties the start of the order to the end of the appeal. A permanent resident loses that status once a removal order against them takes effect (IRPA s. 46(1)(c)). A removal order is also stayed while an IAD stay is in place (IRPA s. 50(c)).

How these rules apply to a specific order and its current status is something a lawyer can advise on. Where removal is scheduled, see the guide on a stay of removal in an emergency.

What can the IAD decide, and on what grounds?

After considering the appeal, the IAD does one of three things: allows the appeal, stays the removal order, or dismisses the appeal (IRPA s. 66).

To allow an appeal, the IAD must be satisfied that, at the time it is decided, one of these applies (IRPA s. 67(1)):

1. The decision contains an error of law, of fact, or of both together.
2. Natural justice was not respected.
3. Humanitarian and compassionate (H&C) reasons, with the child's best interests weighed in, justify special relief on all the circumstances.

If the appeal is allowed, the IAD sets aside the original decision and either substitutes the decision it believes should have been made or refers the matter back for reconsideration (IRPA s. 67(2)). An officer is bound by an IAD decision to allow an appeal (IRPA s. 70(1)).

How does a stay of a removal order work at the IAD?

A stay is a middle outcome. To stay the order, the IAD must be satisfied, taking into account the best interests of an affected child, that H&C reasons justify special relief (IRPA s. 68(1)). A stay is not the same as allowing the appeal. If the IAD neither allows the appeal nor grants a stay, the appeal is dismissed (IRPA s. 69(1)).

When the IAD stays an order:

• It imposes the prescribed conditions and may add others it considers necessary (IRPA s. 68(2)(a)).
• The prescribed conditions include telling the CBSA and the IAD in writing of address changes, giving the CBSA copies of passports or travel documents, and not committing an offence (IRPR s. 251(a), (b), (d)).
• It can end the stay on request or by its own decision (IRPA s. 68(2)(d)).
• It may reconsider the appeal at any time (IRPA s. 68(3)).
• Where the order concerned serious criminality, criminality or transborder criminality, a conviction for another offence referred to in s. 36(1) cancels the stay by operation of law and ends the appeal (IRPA s. 68(4)).

A party who applies to reconsider a stayed appeal must state whether the conditions were followed (IAD Rules, 2022, rule 78(1)(b)).

What happens after the notice of appeal is filed?

1. For an order made at an admissibility hearing, the Immigration Division prepares the appeal record and provides it within 30 days of receiving the notice of appeal (rules 20(2), 22(b)). For an order made at an examination, the Minister prepares it and provides it within 30 days of the IAD's written request (rules 20(3), 21(1), 22(c)).
2. Each party gives the other side and the IAD the documents it plans to use within 60 days of receiving the appeal record (rules 24, 26).
3. The IAD may require an informal resolution process to try to settle the appeal without a hearing (rule 64).
4. At the hearing, each party is given a chance to put in evidence, question witnesses and argue its position (rule 74(1)).
5. The IAD gives the parties a written notice of decision, with written reasons if it stays the order (rules 102, 103(1)).

A party in default, for example by not appearing, risks the appeal being treated as abandoned (IRPA s. 168(1)).

When it is worth talking to a lawyer

Legal advice is usually worth seeking when:

• a removal order has been received and the 30 days are running;
• the order refers to criminality, and it is unclear whether the sentence meets the s. 64(2) threshold;
• the inadmissibility finding is about security, sanctions or organized criminality;
• there is a child, a spouse or a medical condition that could matter to the humanitarian and compassionate ground;
• an IAD stay was granted and a new charge has arisen; or
• it is unclear whether the person is a permanent resident, protected person or visa holder under s. 63.

The related PRRA guide covers a separate risk-based process that may arise before removal.

What to gather

• The removal order and any report or reasons that led to it
• Court records showing the charge, conviction and sentence, if criminality is involved
• Immigration status documents: permanent resident card, visa, or protected person decision
• Proof of ties to Canada: family, work, residence, tax and school records
• Evidence about any affected child, such as school and medical records