Unmasking the “D” word: Anatomy of a Deportation

By Catherine Sas, K.C.
Special to The Post

There is an ugly word in immigration practice that no one really wants to speak about: deportation. Yet deportation is a fact of immigration life, and few clients really understand the practical steps of Canada Border Services Agency (CBSA) effecting a deportation order. Let’s review this unfortunate reality.

A deportation order is the most serious of the three types of removal orders: a departure order, an exclusion order and a deportation order. A departure order is the least serious and requires you to voluntarily depart Canada within 30 days or it will automatically convert to the most serious type of removal order and become a deportation order. It is a powerful and benevolent order to provide the incentive for you to leave within the 30 days stipulated. An exclusion order is a removal order that you must depart Canada and that you cannot return for a period of one year or after five years in the case of misrepresentation, without authorization to do so - you need to obtain an “Authorization to Return” to Canada (ARC) or you wait out the period of exclusion until you are able to attempt to return. Then there is a deportation order which is the most serious removal order. Many people associate deportation with being arrested and forcibly removed from Canada. While that is possible, it is not the actual nature of a deportation order which is simply an order that you MUST depart Canada and that you can NEVER return without the written permission of the immigration Minster (or their delegate). It is a PERMANENT bar from ever returning to Canada unless you can convince an official that your return to Canada is warranted in the circumstances. It does not necessarily involve arrest…but it can and we will discuss this further.

Many people in Canada have deportation orders. They should be aware of this but they frequently aren’t. Any failed refugee claimant who has not departed Canada within 30 days after the refusal of their case will have a deportation order. I have many such clients who come to see me to determine their immigration options and when they advise that they have been in Canada for several months, or years, after the refusal of their refugee hearing, I tell them that they have a deportation order. This generally results in horror since “no officer has ever come to my door to arrest me and take me away”. All refugee claimants are given “conditional departure orders” (the least serious type of order) at the time they make their claims and this is repeated (and translated if necessary) several times at the time of the initial making of their claims. Virtually none of the people that come to see me remember this step in the process. When they don’t depart Canada within 30 days, their departure order automatically converts to a deportation order. Deportation orders can also be issued for other serious breaches of the Immigration and Refugee Protection Act (IRPA) for such things as criminality or misrepresentation. There is no action taken by IRCC or by CBSA to affect a deportation order…until there is. There is no special trigger as to when or why CBSA will decide to effect a removal, but it is never a welcome step. Here is what to expect.

Generally, the first step in effecting a deportation order is to send a letter to attend an interview at CBSA at a specific date and time. There is no predictability in this process. Failure to attend the interview can, and usually will, result in your arrest. The real, and likely, threat of arrest and forcible removal is a powerful weapon meant to induce cooperation. At the interview stage you are questioned as to your plans for departing Canada and you are usually provided with a time period in order to arrange things. This may be days or weeks and, in some rare cases, months. Cooperation is essential throughout this period in order to avoid arrest. What are the steps you can take at this point?

Deferral of Removal Request

You can make a request to defer a removal based on special circumstances. This may be due to several reasons - medical or mental health concerns, a pending permanent resident application, completion of the school year for school age children. The potential basis for a deferral request is limitless, but the request needs to be made in writing and with evidence to back up the basis for the request. Sometimes CBSA grants such a request but usually for a relatively short period of time. More often than not, a deferral request is denied and you need to move on to the next step - a Federal Court application to challenge this negative decision.

Judicial Review application to the Federal Court

Many people think that they can “appeal” an officer’s decision. However in the immigration realm we are limited to “judicial review” (JR) which is simply to ask a judge to review a decision to see whether it was made properly in accordance with the law or procedural fairness. A Federal Court judge does not have the authority to substitute their own decision only to refer a matter back for re-consideration on the basis that they don’t think that the decision was made properly or fairly. It is a high standard to meet.

Stay of Removal application to the Federal Court

When removal is imminent, you can also apply for a “stay of removal”. This is a subsequent step to the JR application. There needs to be a solid basis for requesting a stay of removal and again, it is a high standard to meet the legal criteria for a such a remedy.

Detention Hearing

When clients are facing imminent removal, or have serious breaches of IRPA such as a criminal history, they are frequently detained to ensure that they will be available for removal on a specific date. When arrested and detained, a client has the benefit of a detention hearing within 48 hours, then seven days, then monthly. Release is possible but requires evidence of compliance with IRCC and/or CBSA and assurances from family, friends, employers and others in the community. Often a bond is required which involves a person with a close relationship to the detainee providing a payment of a substantial sum of money to CBSA to ensure compliance with reporting and departing as required. If the person being removed does not comply with all of CBSA’s conditions, the bond is forfeited. The bondsperson loses the money paid for the detained person’s release. It is a serious commitment with significant risk meant to induce compliance on the part of the detainee.

The timing of these steps is most frequently within days or weeks. It is a highly emotional time for the person being removed as well as their family and friends, and…their immigration lawyer. (Only an immigration lawyer is able to submit filings and appear at the Federal Court on behalf of a client). All of these steps need to be made virtually simultaneously and it is not an inexpensive process for representation. If this potential reality is in your future, you need to be prepared.

Deportation is never a pleasant experience and as a result, it is frequently an unspoken topic and therefore, a misunderstood process. As in most difficult processes in life, the first step is to become aware of what is involved and then to prepare yourself for the eventuality.

Catherine Sas, K.C. has over 35 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to canadian-visa-lawyer.com or email [email protected].