A client required an extraordinary remedy – a Federal Court Stay Application, but also ended up requiring a Detention Review. It arose essentially because he was being removed from Canada. All remaining avenues (legal anyway) for remaining in Canada had been explored. The client had even married - however, his wife became unwilling to follow through with the necessary paperwork for an in-land Canada spousal sponsorship. Before taking on the matter, I advised the client that a stay from the Federal Court pending his "H&C" application was a long shot and that he ought to weigh carefully the considerable expenses involved.
Beyond “appeals” of refugee claims denials or an H&C/PRRA application refusal, the Federal Court is also the final option to “stay” a decision for removal or deportation. Having recently gone through an exceedingly difficult Emergency Stay Application and a Detention Review (both on the same day), here’s a brief overview of a scenario that might occasion either or both:
Let’s say that an individual has been in Canada illegally for a number of years. After pursuing the legal options to remain (refugee claim, H&C/PRRA etc) there will come a time for his or her removal. The foreign national can always choose to leave on his own volition, of his/her own free will. However, in many cases, CIC (Citizenship & Immigration Canada) or CBSA (Canada Border Services Agency) will need to enforce removal.
Enforcement basically starts when the foreign national is provided his or her PRRA decision. It should be noted that the acceptance rate for PRRA applications is about 2% in Western Canada. That means the PRRA application has a 98% chance of refusal. When the foreign national is called in for PRRA, enforcement of removal is essentially initiated.
The foreign national has a choice of either leaving within 30 days of receiving the removal order. If not, it automatically becomes a deportation order. Enforcement can, at any time thereafter take the individual into custody.
Custody is not pleasant. If the individual can assure the enforcement officer that he/she will leave, they will generally provide him/her an opportunity to do so. The individual will need to confirm their departure with Immigration Officials (Immigration Office at the Calgary International Airport – Arrivals Level – across from the Tim Hortons). If they don’t inform CIC of their departure, or don’t leave at the scheduled removal time, a warrant will be issued for the individual’s arrest. Now, a foreign national can also be taken into custody where there’s admissibility/criminality concerns.
In the context of enforcing removal: If enforcement believes that the individual will not leave on his/her own initiative the individual is placed in secure custody – usually the Calgary Remand Centre, and the individual will be escorted back to the country of removal under guard. Unpleasant and dangerous, this is not a fun place to spend any amount of time in.
Now, there is oversight to Immigration. This is the Immigration Division of the Immigration and Refugee Board. The Minister (of Citizenship & Immigration) has to establish (on a balance of probabilities) that continued detention of the foreign national is necessary. Detention reviews are scheduled (one after 48 hours, then each 7 days thereafter). A Member of the Immigration Division decides on whether detention ought to be continued. If not already done so, counsel should be retained and instructed at this stage. Generally the following factors are considered at detention review hearings:
- Whether the individual is a flight risk/unlikely to comply with requirements
- Whether the individual is a danger to the public/identity concerns
In terms of challenging the removal order itself, the only recourse is the Federal Court. There may be an opportunity to request the Federal Court to ‘stay’ or stop the enforcement of a removal order. This may be occasioned where there is an underlying Application for Leave and Judicial Review (an appeal of the refused H&C or PRRA decision, or even a decision not to defer the removal by the enforcement officer for example).
A stay of a removal order is an extraordinary remedy and is exceedingly difficult. Generally the Applicant will need to establish that there is:
- A serious issue to be tried;
- Irreparable harm (if the Order to Stay is not granted)
- And the Balance of convenience favours the Applicant/granting of the Order.
An Emergency Stay Application needs to be provided to the Federal Court Registry (3 copies, including a Draft Motion Record, Affidavit, Exhibits and Written Submissions) and a copy to the Respondent (the Federal Department of Justice in Edmonton). Obviously the matter should be heard at least a day or two before removal is scheduled. Given that an affidavit is required, counsel will require at least three days to prepare a proper Motion Record.