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

Marginal note:Report — family members

• 227 (1) For the purposes of section 42 of the Act, a report prepared under subsection 44(1) of the Act against a foreign national is also a report against the foreign national’s family members in Canada.

• Marginal note:Removal — family members

  (2) A removal order made by the Immigration Division against a foreign national is also a removal order against their family members in Canada to whom subsection (1) applies if

  • (a) an officer informed the family members of the report, that they are the subject of an admissibility hearing and of their right to make submissions and be represented, at their own expense, at the admissibility hearing; and

  • (b) the family members are subject to a decision of the Immigration Division that they are inadmissible under section 42 of the Act on grounds of the inadmissibility of the foreign national.

DIVISION 2Specified Removal Order

Marginal note:Subsection 44(2) of the Act — foreign nationals

• 228 (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be

  • (a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the Act on grounds of serious criminality or criminality, a deportation order;

  • (a.01) if the foreign national is inadmissible on grounds of transborder criminality under subsection 36(2.1) of the Act for having committed one of the following offences on their entry into Canada, a deportation order:

    • (i) an offence under section 86, 87, 90, 91, 95 or 104 or subsection 320.15(1) of the Criminal Code,

    • (ii) an offence under paragraph 124(1)(b) of the Immigration and Refugee Protection Act,

    • (iii) an offence under section 110 of the Firearms Act,

    • (iv) an offence under subsection 159(1) of the Customs Act with respect to goods referred to in subparagraph 19(1)(d)(ii) of these Regulations,

    • (v) an offence under subsection 160(1) of the Customs Act that is one of the following contraventions:

      • (A) a contravention of section 12 of that Act, with respect to goods referred to in clause 19(1)(e)(i)(B) of these Regulations, or

      • (B) a contravention of section 156 of that Act;

  • (a.1) if the foreign national is inadmissible under paragraph 40(1)(a) of the Act on grounds of misrepresentation relating to their exemption from the requirement to obtain a temporary resident visa when applying for an electronic travel authorization, an exclusion order;

  • (b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

  • (b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

  • (c) if the foreign national is inadmissible under section 41 of the Act on grounds of

    • (i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

    • (ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

    • (iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

    • (iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

    • (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in paragraph 183(1)(d), section 184 or subsection 220.1(1), an exclusion order,

    • (vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order,

    • (vii) failing to comply with the condition set out in paragraph 43(1)(e), an exclusion order,

    • (viii) failing to submit to a medical examination as required by paragraph 16(2)(b) of the Act, an exclusion order, or

    • (ix) failing to appear for examination as required by subsection 18(1) of the Act when seeking to enter Canada at a port of entry, an exclusion order;

  • (d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member;

  • (e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order; and

  • (f) if the foreign national is inadmissible under subsection 35.1(1) of the Act on grounds of sanctions, a deportation order.

• Marginal note:Direct back

  (1.1) For the purposes of subsection 44(2) of the Act, and subject to subsection (4), if a foreign national is the subject of a report and the following circumstances apply, the report shall not be referred to the Immigration Division and the removal order made shall be an exclusion order:

  • (a) an officer directed the foreign national to return temporarily to the United States under section 41; and

  • (b) the foreign national is inadmissible under paragraph 41(a) of the Act for failing to establish that they will leave Canada by the end of the period authorized for their stay.

• Marginal note:Subsection 44(2) of the Act — permanent residents

  (2) For the purposes of subsection 44(2) of the Act, if a removal order is made against a permanent resident who fails to comply with the residency obligation under section 28 of the Act, the order shall be a departure order.

• Marginal note:Eligible claim for refugee protection

  (3) If a claim for refugee protection is made and the claim has been determined to be eligible to be referred to the Refugee Protection Division or no determination has been made, a departure order is the applicable removal order in the circumstances set out in paragraph (1)(a.1) or any of subparagraphs (1)(c)(i), (iii) to (v), (viii) and (ix).

• Marginal note:Reports in respect of certain foreign nationals

  (4) For the purposes of subsections (1) and (1.1), a report in respect of a foreign national does not include a report in respect of a foreign national who

  • (a) is under 18 years of age and not accompanied by a parent or an adult legally responsible for them; or

  • (b) is unable, in the opinion of the Minister, to appreciate the nature of the proceedings and is not accompanied by a parent or an adult legally responsible for them.

Marginal note:Paragraph 45(d) of the Act — applicable removal order

• 229 (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

  • (a) a deportation order, if they are inadmissible under subsection 34(1) of the Act on security grounds;

  • (b) a deportation order, if they are inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;

  • (c) a deportation order, in the case of a permanent resident inadmissible under subsection 36(1) of the Act on grounds of serious criminality or a foreign national inadmissible under paragraph 36(1)(b) or (c) of the Act on grounds of serious criminality;

  • (d) a deportation order, if they are inadmissible under paragraph 36(2)(b) or (c) of the Act on grounds of criminality;

  • (d.1) a deportation order, if they are inadmissible under subsection 36(2.1) of the Act on grounds of transborder criminality for having committed, on their entry into Canada, an offence other than one referred to in any of subparagraphs 228(1)(a.01)(i) to (v);

  • (e) a deportation order, if they are inadmissible under subsection 37(1) of the Act on grounds of organized criminality;

  • (f) an exclusion order, if they are inadmissible under subsection 38(1) of the Act on health grounds, unless subsection (2) or (3) applies;

  • (g) an exclusion order, if they are inadmissible under section 39 of the Act for financial reasons, unless subsection (2) or (3) applies;

  • (h) an exclusion order, if they are inadmissible under paragraph 40(1)(a) or (b) of the Act for misrepresentation, unless subsection (3) applies;

  • (i) a deportation order, if they are inadmissible under paragraph 40(1)(d) of the Act for misrepresentation;

  • (j) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to comply with the requirement to appear for examination, unless subsection (2) or (3) applies;

  • (k) a departure order, if they are inadmissible under paragraph 41(b) of the Act;

  • (l) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to establish that they have come to Canada in order to establish permanent residence, unless subsection (3) applies;

  • (m) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for failing to establish that they will leave Canada by the end of the period authorized for their stay, unless subsection (2) applies; and

  • (n) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for any other failure to comply with the Act, unless subsection (2) or (3) applies.

• Marginal note:Eligible claim for refugee protection

  (2) If a claim for refugee protection is made and the claim has been determined to be eligible to be referred to the Refugee Protection Division or no determination has been made, a departure order is the applicable removal order in the circumstances set out in paragraph (1)(f), (g), (j), (m) or (n).

• Marginal note:Exception

  (3) The applicable removal order in the circumstances set out in paragraph (1)(f), (g), (h), (j), (l) or (n) is a deportation order if the person

  • (a) was previously subject to a removal order and they are inadmissible on the same grounds as in that order;

  • (b) has failed to comply with any condition or obligation imposed under the Act or the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, unless the failure is the basis for the removal order; or

  • (c) has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment or of two offences under any Act of Parliament not arising out of a single occurrence, unless the conviction or convictions are the grounds for the removal order.

• Marginal note:Punishable by way of indictment

  (3.1) For the purposes of paragraph (3)(c), an offence that may be prosecuted either summarily or by way of indictment is deemed to be an offence punishable by way of indictment, even if it has been prosecuted summarily.

• Marginal note:Section 228 circumstances

  (4) If the Immigration Division makes a removal order against a foreign national with respect to any grounds of inadmissibility that are circumstances set out in section 228, the Immigration Division shall make

  • (a) the removal order that would have been applicable under subsection 228(1) or (3) if the report had not been referred to the Immigration Division under subsection 44(2) of the Act; or

  • (b) in the case of a foreign national described in paragraph 228(4)(a) or (b), the removal order that would have been applicable under subsection 228(1) or (3) if the foreign national had not been described in that paragraph.

DIVISION 3Stay of Removal Orders

Marginal note: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.

• Marginal note: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.

• Marginal note: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;

  • (b.1) is inadmissible under subsection 35.1(1) of the Act on grounds of sanctions;

  • (c) is inadmissible under subsection 36(1) of the Act on grounds of serious criminality, under subsection 36(2) of the Act on grounds of criminality or under subsection 36(2.1) of the Act on grounds of transborder 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.

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.