A Stay of Removal is a legal order that temporarily halts or suspends the enforcement of a removal order against an individual who is subject to deportation or removal from Canada. This order prevents the person from being deported while they pursue other legal remedies, such as an appeal, a further application for refugee protection, or a request for a Pre-Removal Risk Assessment (PRRA). The stay is a critical tool that allows individuals time to resolve legal issues related to their immigration status before being removed from the country.

When is a Stay of Removal Requested?

A stay of removal is typically requested in the following situations:

1. Appeal Pending:
   • If the individual has filed an appeal (for example, an appeal with the Immigration and Refugee Board of Canada (IRB) or the Federal Court) to challenge the removal order, they can request a stay of removal to prevent deportation while the appeal is being processed.
2. Request for Protection:
   • If the individual is seeking further protection in Canada, such as filing a Pre-Removal Risk Assessment (PRRA), an application for Humanitarian and Compassionate grounds, or another form of immigration relief, they may request a stay of removal to delay their deportation until their application is resolved.
3. New Information or Change in Circumstances:
   • If new evidence or changes in personal circumstances arise (such as new evidence about the risk the person would face if removed to their home country), a stay of removal can provide the time needed to review the new information.
4. Humanitarian Grounds:
   • In cases where the person is facing significant hardships or humanitarian reasons that justify their stay in Canada, such as health issues or family separation, a stay of removal can be requested on humanitarian grounds.
5. Detention Review:
   • If the individual is being detained by Canadian immigration authorities and is facing removal, they may request a stay of removal as part of a detention review process.

How to Request a Stay of Removal

The process for requesting a stay of removal generally involves the following steps:

1. Make the Request:
   • The individual (or their representative, such as an immigration lawyer) must submit a formal request for a stay of removal to the Canada Border Services Agency (CBSA) or the Immigration and Refugee Board (IRB).
   • The request should explain why a stay is necessary, providing reasons such as pending appeals, new evidence, or risks upon removal.
2. Provide Supporting Evidence:
   • The individual must present any supporting documents or evidence that justify the request. This could include:
     • Documentation of any ongoing legal proceedings, such as a pending appeal or PRRA.
     • Medical records if the individual has health concerns that could worsen upon removal.
     • Information about risks of harm in the home country.
     • Other relevant documentation, such as proof of family ties in Canada or new humanitarian circumstances.
3. Decision on the Stay:
   • The IRB or CBSA will review the request. They will consider factors like the individual’s legal situation, the likelihood of success in their case, and the risks they may face if removed.
   • Stay granted: If the stay is granted, the person will be temporarily allowed to remain in Canada while they pursue their legal matters.
   • Stay denied: If the stay is denied, the individual will be subject to the enforcement of the removal order and may be deported.

Factors Considered in Granting a Stay of Removal

When deciding whether to grant a stay of removal, the following factors are considered:

1. Likelihood of Success on Appeal or PRRA:
   • One of the main considerations is whether the individual has a strong case for appealing their removal or for being granted protection through a PRRA or refugee claim. The Immigration Division (ID) or Federal Court will assess whether the applicant is likely to succeed in their claim for protection or appeal.
2. Risk of Harm if Removed:
   • If there are concerns about the individual facing harm, such as persecution, torture, or death, upon removal, a stay may be granted to prevent deportation while their protection claim is reviewed.
3. Compelling Humanitarian and Compassionate Factors:
   • The IRB or CBSA may grant a stay if the individual can demonstrate that there are significant humanitarian and compassionate grounds for staying in Canada. This may include factors such as health issues, family ties, or the best interests of children.
4. Potential for Disruption of Ongoing Legal Matters:
   • A stay might be granted if removing the individual before their legal matters are resolved would cause unnecessary disruption, such as making it impossible to attend hearings or appeal processes.
5. Flight Risk:
   • If there is a concern that the individual may not comply with Canadian laws and may attempt to flee, this could impact the decision to grant a stay. However, conditions like bail or monitoring may be imposed to ensure the person remains in Canada.
6. Public Interest:
   • The Canadian government may also consider the public interest, including national security or the integrity of the immigration system, in deciding whether to grant a stay of removal.

Stay of Removal and Detention

In some cases, a person facing removal may also be detained by Canadian immigration authorities while awaiting the outcome of their stay request or other legal proceedings. A stay of removal can be requested as part of a detention review process if the individual believes they should be released from detention while their case is being processed.

In this situation, the individual would argue that the stay of removal is necessary for them to resolve their immigration situation outside of detention, or because the removal order should not be enforced due to ongoing legal proceedings.

Consequences of a Stay of Removal

• Temporary Stay: The stay of removal is usually temporary and is only in effect for a specific period. During this period, the individual will not be removed from Canada but must continue to work on their immigration case. The stay may be extended if new grounds or further delays arise.
• Removal After Stay Expires: If the stay is not extended or the individual’s case is unsuccessful, the removal order will eventually be enforced. The individual may be deported after all legal avenues have been exhausted.
• Non-compliance: If the individual violates the terms of the stay (for example, by leaving Canada or failing to attend hearings), the stay can be revoked, and they may be subject to immediate deportation.

Appealing a Denied Stay of Removal

If a stay of removal is denied, the person may appeal the decision to the Federal Court of Canada, arguing that the decision was made incorrectly or unfairly. The court will review the legal aspects of the decision and determine whether the stay should be granted.

Conclusion

A stay of removal is an essential legal tool that allows individuals facing deportation to temporarily remain in Canada while they pursue further legal avenues, such as appealing their removal or applying for protection. It is particularly important for people who are at risk of harm in their home country or who have new information or legal grounds that could prevent their deportation.

Requesting a stay involves submitting an application with supporting evidence and presenting a strong case for why removal should be delayed. The request can be made to immigration authorities, and the decision is based on various factors, including the likelihood of success in ongoing legal matters and the risks the individual faces upon removal. If the stay is denied, the individual may still have options to challenge the decision in court.