PACP - Impediments and Legal Recourses - Nov 24, 2020

• The CBSA takes action to remove foreign nationals subject to removal only once all legal avenues and administrative steps are exhausted and all other impediments are addressed.
• Administrative processes to be addressed in the removal process include: pre-removal risk assessments; applications for permanent residence on humanitarian and compassionate grounds; in-Canada spousal sponsorship applications; requests to defer removal; and, administrative deferrals of removal and temporary suspension of removals.
• The decisions rendered in administrative processes prior to removal are all subject to judicial review. If removal is imminent while an individual is seeking judicial review, they may also request a stay of removal. If the Federal Court grants a stay, removal may not proceed.
• Impediments to removal include: individuals or foreign governments who refuse to cooperate with the travel document acquisition process; individuals who have serious health issues, impacting either their ability to get on a plane or longer term availability, affordability and/or accessibility of medical treatment in a country of destination; airlines that place significant restrictions on the number of deportees on flights; and, cases involving Canadian-born children or inadmissible family members.
• The Travel Document Impediment represents approximately 60% of all impediments. The CBSA must meet foreign requirements linked to travel document applications, and must negotiate with foreign representatives in order to obtain travel documents for removal.
• There is little CBSA can do to execute a removal when individuals or foreign governments do not cooperate with providing or issuing travel documents,
• These impediments, whether legal or not, can prevent the CBSA from removing inadmissible persons from Canada as soon as possible.

Questions and Answers:

Q1. What are the recourses available to an individual subject to a removal order?

The Canadian immigration system, including the enforcement component, is lauded as one of the most generous in the world. It includes many checks and balances to ensure that a person has access to comprehensive risk assessments and procedural fairness prior to removal.

Examples of these processes include: the refugee determination system; the pre-removal risk assessment; applications for permanent residence on humanitarian and compassionate grounds; in-Canada spousal sponsorship applications; requests to defer removal; and, applications for leave for judicial review. It is only once all legal avenues are exhausted that a removal can occur.

Q2. Once all legal and administrative options have been exhausted, what other issues may delay or stop a removal?

There are various impediments that may delay or stop a removal, such as:

• Foreign nationals who refuse to cooperate with their removal or the acquisition of a travel document, fail to report as required for a scheduled removal and/or go underground or health-related restrictions to being removed or returned to their country of nationality.
• Foreign Governments that delay, take a great deal of time, or do not issue travel documents at all, change their travel document application requirements or inconsistently apply them, refuse involuntary returns or do not have the infrastructure in place to carry out identity verification investigations required to confirm citizenship before issuing a travel document for removal.
• Commercial airlines that lack flights to certain destinations, limit the number of deportees per flight, refuse high-profile or criminal removals or require the CBSA to escort even low risk deportees or use more escort officers for the removal.

Q3. What are the efforts made by the CBSA to overcome the impediments?

• Currently, the focus is on alleviating the challenges associated to foreign governments that will not accept the return of their nationals. This endeavor has led to an all-of-government approach, championed by the Assistant Deputy Minister led Removals Working Group. This partnership is co-led by the CBSA and Global Affairs Canada, and involves other partners, such as Immigration, Refugees and Citizenship Canada. Additionally, the CBSA capitalizes on the engagement of CBSA Liaison Officers posted abroad, foreign authorities in destination countries and international partners, such as the Five Eyes network of countries (Australia, Canada, New Zealand, the United Kingdom and the United States).

Background:

Once a removal order is in force there are a number of processes, applications, decision points, etc., which may, or must be, exhausted before a person can be removed from Canada. Many of these can occur simultaneously and/or multiple times. The following provides an overview of the most common issues to be addressed in the removal process.

Pre-removal Risk Assessment (PRRA)

• An assessment of personalized risk of persecution, torture, risk to life, or risk of cruel or
  unusual punishment prior to any final decision to remove an individual from Canada.
• When more than a year has passed after the last negative decision on a refugee claim, the CBSA must offer PRRA to those being removed from Canada.
• The first time that a person is offered PRRA, the application stays the removal.
• Immigration, Refugees and Citizenship Canada (IRCC) processes the applications and processing time is nine to twelve months.

Applications for Permanent Residence on Humanitarian and Compassionate (H&C) Grounds

• Does not stay removal while in process until approved in principal (Stage 1).
• IRCC processes the application and current processing time is approximately 39 months to Stage 1 approval.

In-Canada spousal Sponsorship Application

• Similar to an H&C.
• Under the spousal sponsorship public policy, a person is entitled to a 60-day deferral of their removal if they have submitted a spousal application prior to the scheduling of their removal interview with the CBSA.

Deferral Requests

• Once a person has attended a removal interview, or a removal date is fixed, they may request a deferral of removal for various reasons, including, best interests of the child and medical.
• The CBSA may grant deferral for a variety of reasons, including, allowing the person to wrap up their affairs, break their lease on housing, or allow a child to finish a school term.

Applications for Leave and Judicial Review

• Can be filed in relation to any decision rendered by an officer, or other body, such as a removal order as well as a negative deferral response, Refugee Protection Division, or Refugee Appeal Division decisions.
• For those subject to removal, these are usually accompanied by a request to the court to grant a stay of removal until the Court decides on whether or not they will grant leave for judicial review of the decision.

Interim Measures Requests

• The United Nations Human Rights Commission (UNHRC) can make a request to Canada not to remove an individual until it hears their complaint that they will be removed to torture.
• If the UNHRC renders a positive decision on the complaint, which may take years, the Government of Canada must determine whether or not they will abide by it.

Administrative Deferrals of Removals (ADR) and Temporary Suspensions of Removals (TSR)

• The imposition of an ADR or TSR stops the CBSA from removing to the affected country, except for those who are excluded from refugee protection at the RPD under 1F, or inadmissible on grounds of security, human or international rights violations, criminality or organized criminality, or those who are willing to leave.
• When these measures are lifted, cases often require a PRRA, which further delays removal processes.

Medical Issues

• For foreign nationals who allege medical concerns regarding their ability to travel, the CBSA has put in place a process where a physician reviews the person’s medical condition and the corresponding Medical Requirements for Removal (MRR), makes an impartial determination regarding the impact of the medical condition and any impact to removal, which may include a recommendation to include a nurse for removal.
• Where the foreign national raises medical concerns regarding the availability, affordability or accessibility of treatment in the destination country, and the person submits an H&C application within a specified period, then the CBSA will not remove them until the Stage 1 decision is made.

Travel Document Issues

• In most cases, the CBSA will not be able to remove a person when they are uncooperative in confirming their identity or refuse to cooperate with the travel document process.
• This is also the case when foreign governments delay the issuance of travel documents (or do not issue at all), fail to honour removal arrangements, or have limited infrastructure or resources to conduct identity verification activities.

Criminal Charges

• Individuals charged with a criminal offence or those serving a criminal sentence are subject to a stay of removal.

Ministerial Stays of Removal or Temporary Residence Permit (TRP) Issuance

• The Minister of Public Safety can issue a stay of removal for any duration at his prerogative.
• The Minister of Immigration, Refugees and Citizenship can issue a TRP at his prerogative, which does not stay the removal, but the CBSA will cancel the removal.

The single largest impediment, representing approximately 55 to 60% of all impediments, is obtaining travel documents for removal. The CBSA must negotiate with foreign representatives in Embassies and High Commissions across Canada for the issuance of a travel document, as well as meet foreign government requirements linked to travel document applications and processes, in order to obtain travel documents for removal. When persons to be deported, or foreign governments of the country to which they will be removed (typically the country of their citizenship or permanent residency), do not cooperate with the travel document issuance process, there is little that the CBSA may do to execute a removal.

As a measure to alleviate the challenges associated to foreign governments not willing to accept the return of their nationals, the CBSA co-leads an all-of-government approach, championed by the ADM-level Removals Working Group. This partnership is co-led by the CBSA and Global Affairs Canada, and involves other partners, such as Immigration, Refugees and Citizenship Canada. Additionally, the CBSA capitalizes on the engagement of CBSA Liaison Officers posted abroad, foreign authorities in destination countries and international partners, such as the 5 eyes network of countries.

Relevant Data / Statistics:

National removal inventory (as of November 12, 2020)

Impediments (Working Inventory)