The Emergency Stay Application

A common goal for immigration lawyers is to help clients avoid deportation. In this case the client, who has been in Canada for almost a decade as an international student, graduated and had a child there, attempted to navigate the PR process but failed. She was found to be non-compliant and after her first marriage broke down, she started a common law relationship with a failed refugee claimant. The couple filed an H&C, but it was refused. They sought a JR at the Federal Court and the DoJ consented, but CBSA nevertheless geared up for removal. The couple filed another JR and requested a deferral of removal. The Removals Officer refused to grant the deferral request. The only option was to seek an Emergency Stay Application, which was granted. The H&C JR will now be considered, but the author predicts more removals due to a spike in enforcement.

One important goal that all immigration lawyers share is to help their clients avoid deportation. Deportation however is one outcome (among others) contemplated in the IRPA/IRPR.

My client entered Canada almost a decade ago. She came as an international student, graduated (had a child here) and obtained a Post Graduate Work Permit. She attempted to navigate the PR process but failed. She was found to be in non-compliance (she didn’t leave after the expiry of her status, seeking instead status from within Canada). After the breakdown of her first marriage, she started a common law relationship with a failed refugee claimant. A “H&C” was filed for both; the couple had a child together.
Along the way, a PRRA was initiated (and like most PRRAs, rejected).

The H&C was refused on spurious grounds. JR was sought at the Federal Court. The Department of Justice (DoJ) graciously consented. During this time, she was meeting CBSA regularly and CBSA was coordinating removal plans. CBSA decided not to remove given the consent from the DoJ.

Lo and behold -unlike other returns from Federal Court which take months or even years to re-determine, another Officer refused the H&C for the 2nd time within 2 months. CBSA geared up again for removal.

We filed another JR. Contacted DoJ for another consent. Apparently their client was intransigent. The record was perfected at the end of July. Flights were booked that same month. A deferral request was submitted beseeching the CBSA Officer to defer removal until her common law partner received his passport/travel document so that the family could go together. The deferral request included literature and studies as to the effect of forcible separation of children from a caregiver.

The deferral request was refused. CBSA pointed out that it was the first they heard of the family returning together (a bit of a non sequitur) and that they didn’t know but it was their experience that the Indian authorities are very reluctant to issue travel documents to failed refugee claimants (thus raising the possibility of indefinite family separation) and that my client’s passport was itself expiring in a few months. Clearly, the deferral was asking for more than a temporary reprieve (in all honesty, that’s true).

Once the deferral is refused the only option is to seek an Emergency Stay Application. These are done on extremely short notice and always occasions stress. A Motion needs to be served and filed. There has to be an underlying ALJR or other underlying litigation (typically a JR of a PRRA refusal). The DoJ office is in Edmonton so we typically fax these motions. The Motion then needs to be filed at the Court along with a Rule 35 letter. The Motion is typically heard via video conference.

The deferral was filed on a Thursday, refused the next day. The Motion for a Stay was served/filed on the following Tuesday (Monday was a holiday).It was heard on Wednesday (the DoJ was granted exemption from filing a response and opposed it viva voce). The flight was the next day, in the morning. Luckily the stay was granted on Wednesday afternoon.

There should now be enough time for the H&C JR to be considered. Given that my clients passport is also expiring soon there may just be enough time for a positive decision to result.

My guess is that we will be seeing more removals. There has been a spike in refugee claims which means a spike in enforcement. The H&C and PRRA bars of 12 months continue to exist. Those individuals with valid passports are low hanging fruit and the Sauron-eye of CBSA will fall on them first.