Immigration and Refugee Protection Regulations (SOR/2002-227)

Marginal note:Stay of removal — judicial review

• 231 (1) Subject to subsections (2) to (4), a removal order is stayed if the subject of the order makes an application for leave for judicial review in accordance with section 72 of the Act with respect to a decision of the Refugee Appeal Division that rejects, or confirms the rejection of, 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,

    • (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.

• Marginal note:Exception

  (2) Subsection (1) does not apply if, when leave is applied for, the subject of the removal order is a designated foreign national.

• Marginal note: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.

• Marginal note: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.

Marginal note: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) [Repealed, SOR/2012-154, s. 12]

• (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.

Marginal note: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.

Marginal note: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 Canada Border Services Agency 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 Canada Border Services Agency 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.

DIVISION 4Enforcement of Removal Orders

Marginal note:Not void

235 For greater certainty, and subject to section 51 of the Act, a removal order does not become void by reason of any lapse of time.

Marginal note:Providing copies

236 A person against whom a removal order is made shall be provided with a copy of the order when it is made.

Marginal note:Modality of enforcement

237 A removal order is enforced by the voluntary compliance of a foreign national with the removal order or by the removal of the foreign national by the Minister.

Marginal note:Voluntary compliance

• 238 (1) A foreign national who wants to voluntarily comply with a removal order must appear before an officer who shall determine if

  • (a) the foreign national has sufficient means to effect their departure to a country that they will be authorized to enter; and

  • (b) the foreign national intends to voluntarily comply with the requirements set out in paragraphs 240(1)(a) to (c) and will be able to act on that intention.

• Marginal note:Choice of country

  (2) Following the appearance referred to in subsection (1), the foreign national must submit their choice of destination to the officer who shall approve the choice unless the foreign national is

  • (a) a danger to the public;

  • (b) a fugitive from justice in Canada or another country; or

  • (c) seeking to evade or frustrate the cause of justice in Canada or another country.

Marginal note:Removal by Minister

239 If a foreign national does not voluntarily comply with a removal order, a negative determination is made under subsection 238(1) or the foreign national’s choice of destination is not approved under subsection 238(2), the removal order shall be enforced by the Minister.

Marginal note:When removal order is enforced

• 240 (1) A removal order against a foreign national, whether it is enforced by voluntary compliance or by the Minister, is enforced when the foreign national

  • (a) appears before an officer at a port of entry to verify their departure from Canada;

  • (b) obtains a certificate of departure from the Canada Border Services Agency;

  • (c) departs from Canada; and

  • (d) is authorized to enter, other than for purposes of transit, their country of destination.

• Marginal note:When removal order is enforced by officer outside Canada

  (2) If a foreign national against whom a removal order has not been enforced has departed from Canada and applies outside Canada for a visa, an electronic travel authorization or an authorization to return to Canada, an officer shall enforce the order if, following an examination, the foreign national establishes that they are the person described in the order.

• Marginal note:When removal order is enforced by officer in Canada

  (3) A removal order against a foreign national is enforced by an officer in Canada when the officer confirms that the foreign national has departed from Canada.

• Marginal note:Application of subsections (2) and (3)

  (4) For greater certainty, subsections (2) and (3) apply in respect of any removal order made before the day on which those subsections come into force.

Marginal note:Country of removal

• 241 (1) If a removal order is enforced under section 239, the foreign national shall be removed to

  • (a) the country from which they came to Canada;

  • (b) the country in which they last permanently resided before coming to Canada;

  • (c) a country of which they are a national or citizen; or

  • (d) the country of their birth.

• Marginal note:Removal to another country

  (2) If none of the countries referred to in subsection (1) is willing to authorize the foreign national to enter, the Minister shall select any country that will authorize entry within a reasonable time and shall remove the foreign national to that country.

• Marginal note:Exception

  (3) Despite section 238 and subsection (1), the Minister shall remove a person who is subject to a removal order on the grounds of inadmissibility referred to in paragraph 35(1)(a) of the Act to a country that the Minister determines will authorize the person to enter.

Marginal note:Mutual Legal Assistance in Criminal Matters Act

242 A person transferred under an order made under the Mutual Legal Assistance in Criminal Matters Act is not, for the purposes of paragraph 240(1)(d), a person who has been authorized to enter their country of destination.

Marginal note:Payment of removal costs

243 Unless expenses incurred by Her Majesty in right of Canada have been recovered from a transporter, a foreign national who is removed from Canada at Her Majesty’s expense shall not return to Canada if the foreign national has not paid to Her Majesty the removal costs of

• (a) $750 for removal to the United States or St. Pierre and Miquelon; and

• (b) $1,500 for removal to any other country.

PART 14Detention and Release

Marginal note:Factors to be considered

244 For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person

• (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act;

• (b) is a danger to the public; or

• (c) is a foreign national whose identity has not been established.

Marginal note:Flight risk

245 For the purposes of paragraph 244(a), the factors are the following:

• (a) being a fugitive from justice in a foreign jurisdiction in relation to an offence that, if committed in Canada, would constitute an offence under an Act of Parliament;

• (b) voluntary compliance with any previous departure order;

• (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding;

• (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal;

• (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so;

• (f) involvement with a people smuggling or trafficking in persons operation that would likely lead the person to not appear for a measure referred to in paragraph 244(a) or to be vulnerable to being influenced or coerced by an organization involved in such an operation to not appear for such a measure; and

• (g) the existence of strong ties to a community in Canada.

Marginal note:Danger to the public

246 For the purposes of paragraph 244(b), the factors are the following:

• (a) the fact that the person constitutes, in the opinion of the Minister, a danger to the public in Canada or a danger to the security of Canada under paragraph 101(2)(b), subparagraph 113(d)(i) or (ii) or paragraph 115(2)(a) or (b) of the Act;

• (b) association with a criminal organization within the meaning of subsection 121(2) of the Act;

• (c) engagement in people smuggling or trafficking in persons;

• (d) conviction in Canada under an Act of Parliament for

  • (i) a sexual offence, or

  • (ii) an offence involving violence or weapons;

• (e) conviction for an offence in Canada under any of the following provisions of the Controlled Drugs and Substances Act, namely,

  • (i) section 5 (trafficking),

  • (ii) section 6 (importing and exporting), and

  • (iii) section 7 (production);

• (f) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament for

  • (i) a sexual offence, or

  • (ii) an offence involving violence or weapons;

• (g) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Controlled Drugs and Substances Act, namely,

  • (i) section 5 (trafficking),

  • (ii) section 6 (importing and exporting), and

  • (iii) section 7 (production);

• (h) conviction for an offence in Canada under any of the following provisions of the Cannabis Act, namely,

  • (i) section 9 (distribution),

  • (ii) section 10 (selling),

  • (iii) section 11 (importing and exporting), and

  • (iv) section 12 (production); and

• (i) conviction outside Canada, or the existence of pending charges outside Canada, for an offence that, if committed in Canada, would constitute an offence under any of the following provisions of the Cannabis Act, namely,

  • (i) section 9 (distribution),

  • (ii) section 10 (selling),

  • (iii) section 11 (importing and exporting), and

  • (iv) section 12 (production).