Removal Orders: “Applying” for a Refusal?
Starting the clock on your removal order is not always simple.
When applicants apply to Immigration, Refugee and Citizenship Canada (IRCC), none of them expects a refusal. Yet there is one special case in which applicants know from the outset that they will likely be refused, but must apply regardless. Why?
Such cases occur when an applicant is outside Canada but under an unenforced removal order. Let’s follow Mr. G’s story to explore this scenario and acquire some knowledge of removal orders.
Backstory
Mr. G is a Chinese national with no English language ability. He became a permanent resident of Canada when he landed with his family in Vancouver, in 2009. As a businessman, he spent most of his time in China where his business is located. When he needed to renew his permanent resident card in 2014, he unknowingly retained an unauthorized immigration practitioner who advised him to have his PR card renewed despite his failing to meet the residency obligation. Mr. G complied, signing the blank forms and paying the fee.
While he was expecting a positive result, he was ultimately found inadmissible due to misrepresentation, as the unauthorized practitioner had altered some entry and exit stamps on the copy of his passport. Such falsification created the misleading impression that Mr. G had lived in Canada for more than 730 days in the last five years when he had only spent around 200 days in Canada during that time.
The Immigration Division (ID) of the Immigration and Refugee Board (IRB) then issued Mr. G an exclusion order, which he appealed to the Immigration Appeal Division (IAD) of the IRB. He left for China while his appeal was still pending. In June 2017 his appeal was dismissed. Though frustrated, he accepted the result, thinking that he could come back to Canada by obtaining a visa.
Mr. G knew that he would be barred from Canada for five years. When he contacted a Regulated Canadian Immigration Consultant (RCIC) to discuss his situation, she told him (much to his surprise) that his five-year period had not yet started. Although he had left Canada voluntarily in 2016, his removal order had not yet been enforced. She told him that he had to apply for a visa to have his removal order enforced. She also advised him that his visa application, as she predicted, would be refused, but that this was the only way to “start the clock.”
Mr. G was shocked, but he had no choice. He retained the RCIC to apply for the visa. The RCIC explicitly asked for the enforcement of Mr. G’s removal order in her submission letter when preparing the application. In November 2017 IRCC refused Mr. G’s visa application without initiating the enforcement proceeding. After the RCIC had contacted IRCC several times, persistently asking for the removal order enforcement, IRCC scheduled an interview for Mr. G and enforced his removal order in May 2018.
Mr. G’s story shows that leaving Canada voluntarily does not equate with the enforcement of a removal order, and that getting an unenforced removal order enforced, while overseas, can be painful and tiring. So, what exactly are removal orders and how are they enforced?
Authority and Types of Removal Orders
A removal order is a legal document demanding that an individual leave Canada. The Immigration and Refugee Protection Act (IRPA) sets out the situations for the issuance of a removal order. Section 44(2) of IRPA prescribes that the Minister may issue a removal order to a permanent resident where he or she has failed to comply with the residency obligation. Section 45(d) of IRPA specifies that the ID shall make a removal order to a foreign national who has not been authorized to enter Canada where the ID suspects his or her admissibility, and make a removal order to a foreign national who has been granted entry to Canada or a permanent resident when they are inadmissible.
Sections 223 to 226 of the Immigration and Refugee Protection Regulations (IRPR) itemize three types of removal orders: departure orders, exclusion orders, and deportation orders. The person under a departure order must depart from Canada within 30 days after the order becomes enforceable. Failing to do so turns the departure order into a deportation order. An exclusion order bars the foreign national in question from entering Canada for one year or five years after its enforcement, depending on the grounds for removal. In cases where the removal order has been issued on misrepresentation grounds, the person concerned is barred from Canada for five years. The deportation order permanently bars the person from entering Canada.
After a departure order has been enforced according to section 240(1) of the IRPR, the foreign national may apply to return to Canada. A person described in an exclusion order must obtain an authorization to return to Canada (ARC) if he or she needs to visit Canada during the exclusion period. The ARC application applies to the deportees in deportation orders as well.
Mr. G’s story is not unusual — he inadvertently prolonged his exclusion period because he did not know the difference between the coming into force and enforcement of removal orders. Moreover, he mistakenly thought his departure from Canada meant that no enforcement would be needed. A worse situation may befall foreign nationals who are involved in a departure order; the expiry of the 30-day voluntary departure period will turn them into deportees if they have not got their removal order enforced properly in that timeframe. How, then, should removal orders be enforced?
Enforcement of Removal Orders
Pursuant to section 240 of the IRPR, removal orders may be enforced either in Canada or overseas. A removal order is enforced when the person concerned (1) appears before an officer at a port of entry before his or her departure to verify the departure; (2) obtains a certificate of departure; (3) departs from Canada; and (4) is authorized to enter the destination country. In Mr. G’s case, he left Canada when his exclusion order had not yet come into force, thus his departure could not be verified even though he had left Canada before the appropriate time.
As he was barred from Canada for five years, Mr. G had to get his removal order enforced overseas. Overseas enforcement occurs when the subject of an unenforced removal order applies for a visa, ARC, or electronic travel authorization (eTA). The assessing officer should enforce the removal order after an examination but before the application assessment. The examination includes verifying the following factors: (1) the applicant is the person in the removal order; (2) he or she has been admitted to the country where he or she resides lawfully; and (3) he or she is not inadmissible on the grounds of security, violating human or international rights, serious criminality, or organized criminality.
Though the enforcement regulations are clear, enforcing a removal order overseas is not as easy as it is from within Canada. It is unclear what causes officers to overlook the enforcement part where there is an unenforced removal order in a visa or ARC application, as in Mr. G’s case. The person’s legal status in their country and other inadmissibility grounds could be the reason, as such factors may burden the officers with too much responsibility. Currently, an amendment to removal order enforcement has been proposed, which intends to straighten this kind of situation out. The amendment only requires officers to confirm, through the enforcement examination, that the person in question is the one in the order.
This article is for information purposes only. Individuals who have been issued a removal order should consult with either a Canadian lawyer or RCIC for legal advice. For more information about this topic, please refer to the webpages of either IRCC https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/inadmissibility/reasons/authorization-return-canada.html#a1 or IRB https://www.cbsa-asfc.gc.ca/security-securite/rem-ren-eng.html.
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