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Immigration Violations

The CBSA investigates immigration violations and removes persons who do not have a right to enter or stay in Canada. The ability to remove people is vital to the integrity of the immigration system, and to those who come to this country lawfully. 

More than 12,000 immigration offenders were deported from Canada in 2010. Those who are classified as serious or dangerous are escorted by removals officers

All individuals have the right to due process (the various levels of appeal and judicial review) before a removal order becomes effective or can be enforced. However, once individuals have exhausted all avenues available to them, they are expected to obey Canadian law.

1) Immigration Investigations

CBSA officers across Canada investigate people who may have breached the Immigration and Refugee Protection Act (IRPA). They work closely with the RCMP, local police and other agencies and, when necessary, can arrest, detain and remove people who breached the Act.

Investigations can begin with police reports, tips from the public, or the person's own admission.

If there is sufficient evidence of a breach having been committed, the officer may submit a report to the Minister's delegate. The person under investigation may then face an administrative process for less complicated breaches, or an admissibility hearing presided over by a member of the Immigration Division, if the breach is more complicated.

Who is responsible

Local and regional CBSA staff, including immigration enforcement officers, hearings officers and delegates of the Minister (usually local CBSA managers, supervisors or officers), are involved in the investigation and admissibility hearing process. Members of the Immigration Division of the Immigration and Refugee Board (IRB) conduct admissibility hearings. The IRB is independent of the CBSA and its members are trained in immigration law. Removal orders may be appealed to the Immigration and Appeals Division (IAD) of the IRB.

For less complicated breaches (for example, when a visitor has remained in Canada longer than authorized), the Minister's delegate decides whether or not a breach has occurred and, if necessary, issues a removal order requiring the person to leave the country.

2) Admissibility hearings

When a more complicated breach of IRPA is alleged, the Minister's delegate reviews the investigation report and refers the matter to the Immigration Division for an admissibility hearing.

Admissibility hearings are similar to court hearings and are generally open to the public. However, they are held in private if they concern refugee protection claimants or if the Division determines that there is:

  • danger to a person's life (for example, a person may be testifying in a case involving organized crime);
  • a serious possibility that the fairness of the admissibility hearing would be jeopardized (for example, a woman may be reluctant to testify against her husband if the admissibility hearing is held in public); or
  • a risk that information involving public security might be disclosed (for example, the admissibility hearing concerns a person who is inadmissible on security grounds).

Like a judge, a member of the Immigration Division presides over the admissibility hearing and listens to evidence presented by an officer representing the Minister, the person in question and his or her representative, if there is one. Unlike a court hearing, however, there is no jury and there are fewer restrictions on evidence. At the end of the admissibility hearing, the member decides if the person is admissible. If the person is admissible, he or she is allowed to enter or remain in Canada. The member may set conditions.

If the person is inadmissible to Canada, a removal order that requires the person to leave the country is issued. The member can also decide if the person should be placed under detention or if conditions should be imposed upon release.

For detailed information on the procedures for admissibility hearings, please refer to Citizenship and Immigration Canada's Enforcement Manual's Admissibility Hearings and Detection Review Proceedings (PDF, 280 KB).

3) Pre-removal Risk Assessment

IRPA provides a formal structured process for reviewing risk before a person is removed. The person can apply to the Minister of Citizenship and Immigration for a pre-removal risk assessment (PRRA), which determines if the person would be at risk (i.e., torture, cruel and unusual punishment) if returned to his or her country of nationality.

PRRAs are conducted by Citizenship and Immigration Canada.

For detailed information on the procedures for PRRA, refer to CIC Protected Persons Manual's Pre-removal Risk Assessment (PDF, 280 KB).

You can apply for PRRA if you are in one of the following three scenarios:

  • Scenario One:  You were refused by the IRB for the first time and either did a judicial review and were dismissed or denied; or you did not apply for a judicial review at all.
  • Scenario Two:  If you have in the past made a refugee claim in Canada (including if you withdrew or abandoned your previous claim), you are not eligible to make a second refugee protection claim. But you can apply for a Pre-removal risk assessment if you have been out of Canada for at least six months since your previous claim.
  • Scenario three:  You were refused refugee protection because of the exclusion clauses (basically some form of serious criminality) or you are inadmissible on grounds of security, organized criminality or violation of human rights. You cannot receive protected person status and therefore you cannot apply for permanent residence.  However, if CIC decides that you are at risk, they may decide not to remove you.  In making a decision in such cases, CBSA will balance the danger or security risk you pose to Canada against the risks you will face if you are removed. 

Notification of the Pre-removal risk assessment (PRRA) is sent by officers of the Canada Border Services Agency (CBSA), but the assessment is done by officers of Citizenship and Immigration Canada, PRRA Unit.

When you apply for PRRA, you must use the PRRA application form.  The application form is available in English or in French.  You have the right to make a PRRA application in either language.

You should get your completed PRRA application form to CIC within 15 days of the “notification date”.

This is the day you were given the PRRA application.  The day after notification is day one.

If you receive (in the mail) the notice from CBSA letting you know that they are ready to remove you from Canada, this also includes a Notice to Appear at a meeting with a PRRA officer (In a very few cases, you will get the application upon being declared ineligible for determination at the IRB).  

When you attend this meeting, an application for PRRA is given to you.

If CIC gets your application by day 15, you cannot be removed from Canada before a PRRA officer decides your application.  The PRRA officer must wait at least 30 days from the notification date before deciding.

If CIC gets your application form after day 15, you can be removed at any time.

It is important that you give CIC evidence that shows you meet the definition of Convention refugee or person in need of protection.  You should get this evidence to CIC within 30 days of the notification date.

The decision will normally be made based on the written information submitted, but in a few exceptional cases there will be a hearing. A hearing may be necessary if the new evidence concerns credibility, or is central to a potentially positive decision. If this is the case, you will be notified of when and where the hearing will take place, and the matters or facts they will be addressing. Be aware that Legal aid only very rarely funds PRRA cases, but it is still highly recommended to have counsel at this stage of the process.

If you are accepted under the PRRA, you are granted protected person status and you can apply for permanent residence.  If you either do not apply for a PRRA or your application is refused, you will normally be removed. 

Note that you can make multiple PRRA applications in your lifetime, provided they are separated by 6-month periods of absence from Canada .


4) Removals

Removing individuals who do not have a right to enter or stay in Canada is essential to maintaining the integrity of our immigration program and to ensuring fairness for those who come to this country lawfully.

There are three types of removal orders and each has different consequences.

A removal order can be appealed in certain situations. People cannot be removed from Canada if they have appealed a removal order and the appeal has not been decided, if they are involved in another legal proceeding, or if they have been found to be people in need of protection.

Who is responsible

CBSA officers carry out removals. In some cases, RCMP officers or medical personnel may assist them. Either an officer or a member of the Immigration Division of the Immigration and Refugee Board (IRB), which is independent of CBSA, issues the removal order, depending on the type of removal order required. The IRB's Immigration Appeal Division (IAD) hears appeals of removal orders. The Federal Court Trial Division may review the IAD's ruling.

Types of removal orders

If either an officer or a member of the IRB's Immigration Division determines that a person has breached IRPA, he or she may issue one of the following removal orders:

Departure order
A departure order requires the person to leave Canada within 30 days after the order becomes enforceable and to confirm the departure with the CBSA.

Exclusion order
A person who has been removed as a result of an exclusion order cannot return to Canada for one year without the written permission of an officer. However, people who are issued exclusion orders for misrepresentation cannot return for two years without written authorization from an officer.

Deportation order
A person who has been removed as the result of a deportation order is permanently barred from returning to Canada. Such people may never return unless they receive written permission from an officer.

A departure order automatically becomes a deportation order when someone who has been issued a departure order does not leave Canada as required or leaves Canada without confirming the departure with the CBSA.

Departure and exclusion orders are usually issued for less serious violations.

If a person files a claim for refugee protection and is issued a removal order, that removal order does not come into force until the claim has been decided. If the claim for protection is accepted, the removal order is cancelled. Unsuccessful claimants who had conditional departure orders issued against them must leave within 30 days of the final determination of the claim.

In all cases, the individuals and their representatives are informed of the reasons for the removal and are given a copy of the order. Family members in Canada who are dependants of these people may be included in the removal order provided they are not Canadian citizens or permanent residents 19 years of age or over.

Carrying out a removal

Once a removal order has been issued, the CBSA carries out the removal as soon as possible. The CBSA can assign an escort, if there is concern that the person in question will not obey the removal order. If the individual is considered very dangerous or a threat to the health or safety of other travellers, the RCMP or a medical officer may assist the CBSA in escorting the person out of the country.

Removals: Reasons for delays

Sometimes, there are delays between the issuance of a removal order and the time the person actually leaves. The reasons for this can include the following:

  • Appeals and legal proceedings
    The person has appealed the removal order or may be involved in other legal proceedings, such as a criminal trial.
  • Claims for protection
    The person claims to be a person in need of protection and the case has not been heard or decided.
  • Travel documents
    The CBSA may have difficulty obtaining passports or visas to permit the person to enter another country.
  • Identity
    The person's identity or citizenship cannot be confirmed.
  • Failure to appear
    The person does not appear for removal at the proper time or location, and the CBSA must issue an immigration arrest warrant.
  • Temporary suspension of removals
    Dangerous conditions exist that make it impossible to return the person to the country of origin safely.
Appealing a removal order

As part of the enforcement of IRPA,  the CBSA can refuse to admit people into Canada or may, in some cases, order them removed from the country. In some cases, the Immigration Division of the IRB can order people removed as a result of an admissibility hearing. However, certain people can appeal these decisions.

Some foreign nationals with permanent resident visas, permanent residents and protected persons, who have had removal orders issued against them at an examination or admissibility hearing, can appeal to the IRB's Immigration Appeal Division (IAD.)

An appeal can be launched by the person who was ordered removed or by the CBSA on behalf of the Minister of Public Safety. The IAD can stay removal orders.

The IAD of the IRB hears appeals. If the appeal is rejected, the person can ask the Federal Court Trial Division to review the IAD's decision. The Minister of Public Safety can also request a review.

Who is responsible

Local and regional CBSA staff, including hearings officers, are involved in the appeals process. Hearings officers represent the Minister at appeal hearings before the IAD of the IRB. The IRB is independent of the CBSA and its members are trained in immigration law. The IAD hears appeals of removal orders. The Federal Court of Canada Trial Division may review the IAD's ruling.


Who can appeal to the Immigration Appeal Division

IRPA allows certain people to appeal removal orders made by officers or a member of the Immigration Division at an admissibility hearing. In general, people who can appeal a removal order are one of the following:

  • Permanent residents
    People who were granted permission to enter and remain in Canada.
  • Permanent resident visa holders
    Foreign nationals who hold permanent resident visas and are denied entry at a port of entry upon first arriving in Canada.
  • Protected persons
    Persons who were found to be in need of Canada's protection.

Normally, people will not be removed from Canada until their appeal has been decided. However, if for some reason they have already been removed from Canada, they may be permitted to return to attend their appeal hearing.

Loss of right of appeal

In certain situations, foreign nationals, permanent residents and protected persons do not have a right to appeal. These people lose their appeal rights if a member of the Immigration Division determines that they are inadmissible because they:

  • are security threats or war criminals;
  • have violated human or international rights;
  • have received a sentence of at least two years for criminal activity;
  • are, or have been, involved in organized crime; or
  • have misrepresented themselves, except in cases where the person is the sponsor's spouse, common-law partner or child.

Reasons for an appeal

People can appeal a removal order, if they believe that the officer or the Immigration Division made a legal error, or if they believe that they should not be removed from Canada on humanitarian or compassionate grounds.

The Minister of Public Safety may appeal an Immigration Division's decision only on the basis of a legal error.

Who hears the appeal

Members of the IAD hear appeals. Hearings officers represent the Minister at appeal hearings. The hearings are held in public and operate much like a regular court. However, rules of evidence are more flexible and the IAD can consider any evidence it believes credible and trustworthy. When making a decision, its members consider questions of law and fact and, in some situations, humanitarian and compassionate concerns.

Results of an appeal

The IAD can take one of three actions following an appeal hearing.

Dismiss the appeal: The appeal is rejected and the removal order is confirmed.

Allow the appeal: The appeal is successful and the removal order is cancelled.

Stay the appeal: The IAD can "stay" (postpone) the removal order for a certain period.

The IAD will impose the following conditions. The person must:

  • inform the CBSA and the IAD in writing of any change of address;
  • provide a copy of the passport or travel document (if he or she does not have a proper travel document or it has become invalid, he or she will have to apply for or extend  his/her travel document or passport);
  • not commit any criminal offences;
  • report immediately in writing to the CBSA if charged with or convicted of a criminal offence; and
  • act in accordance with all other conditions imposed by an Immigration Division member.

If, at the end of that period, the person has obeyed these conditions, the IAD may cancel the removal order. If the conditions have not been met, the CBSA can apply to have the stay lifted and then carry out the removal.

Review by the Federal Court

Both the person in question and the Minister of Citizenship and Immigration can apply to the Federal Court of Canada for a review of an IAD decision. However, they must first obtain the leave (permission) of the Court to make the request. If the Federal Court grants permission, it will then review the request and either dismiss it or set aside the IAD's original decision and order a new appeal hearing.

Danger opinions

The Minister of Citizenship and Immigration issues a danger opinion if he or she believes that the person is a danger to the Canadian public or a danger to Canada's security. The Minister can issue danger opinions against Convention refugees facing removal from Canada and against persons claiming protection. Officials review the history of each case to determine if the danger the person represents to Canada outweighs the risk of removing the person to the country from which he or she fled.

The effect of a danger opinion

A danger opinion allows the CBSA to remove a Convention refugee from Canada. It also means that a refugee claimant cannot be referred to the Refugee Protection Division of the Immigration and Refugee Board of Canada.

Security certificates under the Immigration and Refugee Protection Act

The Minister of Public Safety and the Minister of Citizenship and Immigration review and sign each security certificate. Certificates cannot be issued against Canadian citizens; they can only be issued against permanent residents of Canada and foreign nationals.

A security certificate is one way for the CBSA to remove a person who is inadmissible to Canada for reasons of security, for violating human or international rights, for serious criminality or for organized criminality. A security certificate is only issued when information must be protected from disclosure because its release would be injurious to national security or to the safety of a person or persons.

Once a security certificate is signed, it is referred to the Federal Court where a judge hears all or part of the evidence. These proceedings are closed and the judge determines which information cannot be disclosed publicly.

Stay of Removal Orders

Considerations

230. (1) The Minister may impose a stay on removal orders with respect to a country or a place if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of

(a) an armed conflict within the country or place;

(b) an environmental disaster resulting in a substantial temporary disruption of living conditions; or

(c) any situation that is temporary and generalized.

Cancellation

(2) The Minister may cancel the stay if the circumstances referred to in subsection (1) no longer pose a generalized risk to the entire civilian population.

Exceptions

(3) The stay does not apply to a person who

(a) is inadmissible under subsection 34(1) of the Act on security grounds;

(b) is inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;

(c) is inadmissible under subsection 36(1) of the Act on grounds of serious criminality or under subsection 36(2) of the Act on grounds of criminality;

(d) is inadmissible under subsection 37(1) of the Act on grounds of organized criminality;

(e) is a person referred to in section F of Article 1 of the Refugee Convention; or

(f) informs the Minister in writing that they consent to their removal to a country or place to which a stay of removal applies.

Stay of removal — judicial review

231. (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order has filed an application for leave for judicial review in accordance with subsection 72(1) of the Act with respect to a determination of the Refugee Protection Division to reject a claim for refugee protection, and the stay is effective until the earliest of the following:

(a) the application for leave is refused,

(b) the application for leave is granted, the application for judicial review is refused and no question is certified for the Federal Court of Appeal,

(c) if a question is certified by the Federal Court — Trial Division,

(i) the appeal is not filed within the time limit, or

(ii) the Federal Court of Appeal decides to dismiss the appeal, and the time limit in which an application to the Supreme Court of Canada for leave to appeal from that decision expires without an application being made,

(d) if an application for leave to appeal is made to the Supreme Court of Canada from a decision of the Federal Court of Appeal referred to in paragraph (c), the application is refused, and

(e) if the application referred to in paragraph (d) is granted, the appeal is not filed within the time limit or the Supreme Court of Canada dismisses the appeal.

No credible basis exception

(2) Subsection (1) does not apply if the Refugee Protection Division states in its decision, in accordance with subsection 107(2) of the Act, that there is no credible basis for the claim.

Other exceptions

(3) There is no stay of removal if

(a) the person is subject to a removal order because they are inadmissible on grounds of serious criminality; or

(b) the subject of the removal order resides or sojourns in the United States or St. Pierre and Miquelon and is the subject of a report prepared under subsection 44(1) of the Act on their entry into Canada.

Non-application

(4) Subsection (1) does not apply if the person applies for an extension of time to file an application referred to in that subsection.

Stay of removal — pre-removal risk assessment

232. A removal order is stayed when a person is notified by the Department under subsection 160(3) that they may make an application under subsection 112(1) of the Act, and the stay is effective until the earliest of the following events occurs:

(a) the Department receives confirmation in writing from the person that they do not intend to make an application;

(b) the person does not make an application within the period provided under section 162;

(c) the application for protection is rejected;

(d) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act and the person has not made an application within the period provided under subsection 175(1) to remain in Canada as a permanent resident, the expiry of that period;

(e) if a decision to allow the application for protection is made under paragraph 114(1)(a) of the Act, the decision with respect to the person's application to remain in Canada as a permanent resident is made; and

(f) in the case of a person to whom subsection 112(3) of the Act applies, the stay is cancelled under subsection 114(2) of the Act.

Stay of removal — humanitarian and compassionate or public policy considerations

233. A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations, under subsection 25(1) or 25.1(1) of the Act, or by public policy considerations, under subsection 25.2(1) of the Act. The stay is effective until a decision is made to grant, or not grant, permanent resident status.

  • SOR/2010-252, s. 1.

Application of par. 50(a) of the Act

234. For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if

(a) there is an agreement between the Department and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or

(b) there is an agreement between the Department and the Attorney General of Canada or the attorney general of a province to withdraw or cancel any summons or subpoena on the removal of the person from Canada.

References:



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