Stay of Removal: The Emergency Process

The first 48 hours: what usually matters

1. The reporting appointment. Section 55(1) lets an officer issue an arrest and detention warrant where there are reasonable grounds to believe the person is inadmissible and either a danger to the public or unlikely to appear for removal. Whether an appointment matters to that assessment depends on the facts.
2. The paper trail from CBSA: the direction to report, the removal order, the ticket, the officer's name and contact details.
3. Whether another application is outstanding. A stay request is usually tied to some other proceeding, such as a judicial review, an H&C request or a pre-removal risk assessment; a lawyer can confirm which applies.
4. The evidence of harm. Medical records, country information, children's school and medical records, psychological assessments. Which of these are relevant depends on the case.
5. Legal advice. Little time remains once a removal date is set, and a lawyer can advise on timing for a specific case.

Step one: the deferral request

Under s. 48 of the Act, an order is enforceable once it is in force and no stay applies. At that point the Act directs that it be carried out "as soon as possible" (s. 48(2)).

In practice, a request to put removal off is made in writing to the removals officer. The Act does not set out a deferral procedure, and this guide does not describe how much room an officer has to agree. That is a question for a lawyer who has seen the file. Whether a request, the officer's answer or a refusal later forms part of a court proceeding depends on the case.

The reasons given in a request vary with the person's circumstances, and whether any of them helps depends on the facts.

What the Federal Court considers

The Act and the Federal Courts Act give the legal framework, not a checklist of factors. Section 18.2 of the Federal Courts Act lets the Court issue interim orders it considers appropriate while a judicial review is waiting for a final decision. A stay motion is a request for that kind of order.

The criteria the judge applies come from court decisions rather than from the statute. This article does not summarise them, because a reliable statement of those decisions needs the judgments themselves. A lawyer can explain how they apply to a particular removal.

What can be said generally is that the Court decides on the evidence put in front of it, usually affidavits and exhibits. Material that is personal to the applicant and documented tends to be more useful than general statements.

How the motion runs

1. An application for leave and for judicial review is filed. It is directed at a decision or other matter under the Act, and the 15-day (matter arising in Canada) and 60-day (matter arising outside Canada) filing limits in IRPA s. 72(2)(b) apply to it; whether and how they apply should be confirmed with a lawyer.
2. A motion record is assembled with affidavit evidence, exhibits and written argument. Under Rule 4(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, listed Parts of the Federal Courts Rules apply to these proceedings except to the extent they are inconsistent with the Act or those Rules.
3. The other side is served. IRPA s. 72(2)(b) requires notice of the application to be served on the other party.
4. A hearing date may be set. Timing is set by the Court and varies with the circumstances.
5. The order decides whether the Court makes an interim order while the underlying application is determined.

Why motions can fail

Court decisions on this subject turn on their own facts, and this guide cannot say why any particular motion succeeds or fails. The points below are general practical concerns, not legal tests.

• Limited time. Little time remains once a removal date arrives, which limits how much evidence can be gathered.
• Documents. The Court decides on the evidence put in front of it, so statements without supporting documents give it less to work with.
• Underlying proceeding. Section 18.2 of the Federal Courts Act speaks of interim orders on an application for judicial review, so a stay request is connected to some application.

Other ways a removal order can be stayed

The Act lists when a removal order is stayed (IRPA s. 50), including for the duration of a stay imposed by the Immigration Appeal Division, another court of competent jurisdiction or the Minister. The Regulations add specific cases:

• A removal order is stayed while a person makes a leave application for judicial review of certain Refugee Appeal Division decisions that reject a refugee claim, subject to listed exceptions, for example for designated foreign nationals, serious criminality and applications for an extension of time (IRPR s. 231).
• Removal is paused once the Department notifies a person that they may apply for a pre-removal risk assessment, for a limited period set out in the section (IRPR s. 232).
• Removal is also paused, for the foreign national and family members, where the Minister considers that humanitarian and compassionate or public policy considerations justify it, until a decision on permanent resident status (IRPR s. 233).

None of these applies automatically to every person. Whether one applies depends on the type of decision, the dates, and the exceptions. If a stay is granted or refused, what happens next depends on the specific order and the underlying application, and should be confirmed with a lawyer. A judicial review is a separate court process with its own rules.