What is a removal order?
Generally speaking, when a permanent resident (PR) or temporary resident in Canada is found inadmissible, or when they lose their status, they will be ordered to leave Canada. This is called a removal order.
What is a removal order appeal?
When you receive a removal order, you may have an opportunity to have the Immigration and Refugee Board (IRB) review it. This process is called removal order appeal.
The appeal determines whether you should be allowed to stay in Canada either on a permanent or temporary basis.
Who can appeal?
Generally speaking, you have the right to appeal if you are a PR, refugee, protected person, or person with a PR visa. If you are a temporary resident, you do not have the right to appeal.
Further, you do not have the right to appeal if you are inadmissible due to one of the following reasons:
Note that if you have serious criminality in Canada, you have the right to appeal where your jail time is less than 6 months.
If you can’t determine whether you have the right to appeal, we can help you.
What if I can’t appeal the removal order?
Note that appeal is not the only solution for a removal order.
If you don’t have the right to appeal, it may still be subject to Judicial Review (JR) if it has an error of law or fact. Note that JR is not available for everyone. After you successfully file an application for JR, your removal order will be temporarily suspended until the outcome of your JR.
Further, there are situations where you cannot be removed, and the removal order must be temporarily suspended. For example, when you are ill, or when you are subject to another court proceeding.
Last but not least, if you will face danger returning to your home country, you may be eligible for a Pre Removal Risk Assessment (PRRA).
If none of the above solutions are available, and you do not have the right to appeal, you must follow the instructions to leave Canada.
If you are unsure about how to proceed, we can help you.
How to appeal my removal order?
To initiate the appeal, you must send a Notice of Appeal (NOA) to the IRB’s Immigration Appeal Division (IAD) within 30 days from the date of the removal order.
What is the appeal like?
Firstly, it is similar to a hearing in court. A penal which usually consists of one decision-maker will hear the appeal in person.
Secondly, you must attend the hearing. If you have a representative, they must also attend. The hearing is usually public.
Further, you need to prove that you should be allowed to stay in Canada. You can also give statements and evidence including witnesses at the hearing.
Thirdly, the counsel of IRCC may also attend the hearing. However, if the case is straightforward, they may just send a written submission to the penal instead of attending the hearing in person.
We can also represent you at the hearing.
Last but not least, when the IRB believes your appeal may be solved without a hearing, they will ask you to attend an Alternative Dispute Resolution (ADR) conference. The ADR conference is private.
Can I apply Humanitarian and Compassionate (H&C) grounds to my appeal?
The IAD has the power to consider H&C grounds. Therefore, it is always a good idea to present your H&C factors. Where your H&C factors are enough and strong, the IAD will allow you to retain your PR status. This means you will no longer need to directly solve the reasons for your removal order.
H&C factors include establishment in Canada, ties to Canada, hardship, best interests of children, and so forth.
To learn more about H&C, please visit our Service.
What are the possible outcomes of a removal order Appeal?
After the hearing, the IAD may allow the appeal. This means you will retain your PR status.
The IAD may also suspend the removal order. In the meantime, you may remain in Canada until the IAD makes a final decision. The IAD may also impose conditions on you.
The IAD may also dismiss your appeal but confirms the removal order. If this is your case, you can either look for other solutions such as Judicial Review or leave Canada.
Removal and LGBT immigration
Many LGBTQ people wish to move to and stay in Canada. They will want to become PRs.
However, some LGBTQ individuals may have to face the removal process for various reasons. If you are in this situation and have the right to appeal, you should prepare it well.
Note that if you could apply for Canadian citizenship, it is advisable to do so. Citizens cannot be found inadmissible and ordered to leave Canada.
Book a consultation today, we can help you with your questions.
What do we do?
We work with LGBTQ people and help with their journey to Canada. At LegalRoots, client experience is what we care about. We also create a safe and friendly place for those who wish to discuss their matters with us freely.
Book an initial assessment today or contact us directly.
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