Section 52(1) of Canada’s Immigration and Refugee Protection Act provides that a person who has been removed from Canada cannot return to Canada unless the person first receives specific authorization from immigration authorities. This authorization is known as “authorization to return to Canada” (an “ARC“). Whether an ARC is needed will depend on what type of removal order the person received.
Types of Removal Orders
Removal orders can be issued by officers at ports of entry, inland enforcement officers and the Immigration and Refugee Board’s (the “IRB”) Immigration Division.
There are three types of removal orders in Canada. These are the “Departure Order,” the “Exclusion Order,” and the “Deportation Order”.
A Departure Order requires that a person leave Canada within 30 days after the order becomes enforceable. Failure to do so causes the Departure Order to become a Deportation Order. Examples of where a Departure Order would occur is a permanent resident who fails to meet their residency obligation or eligible refugee claimants who are pending a deciison by the IRB.
An Exclusion Order provides that the removed person cannot return to Canada for one year unless the person obtains ARC. For Exclusion Orders resulting from misrepresentation the bar is five years. Examples of where an Exclusion Order would occur include foreign nationals who arrive at a port of entry without the appropriate documentation, foreign nationals who do not leave Canada by the end of their authorized stay and unauthorized work in Canada.
A Deportation Order results in a person being permanently barred from returning to Canada. Such a person may not return unless he/she receives ARC. Examples of where a Deportation Order would occur include criminality and national security concerns.
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.
Authorizations to Return to Canada
An ARC is not routinely granted. For Immigration, Refugees and Citizenship Canada (“IRCC“) the authority is limited to Unit Managers, Program Managers, etc. At the Canada Border Services Agency (“CBSA“) it is limited to Directors and the Chief of Operations.
As the Federal Court noted in Dirir v. Canada (Citizenship and Immigration), 2019 FC 1547, individuals applying for an ARC must demonstrate that there are compelling reasons to consider an ARC when weighed against the circumstances that necessitated the issuance of the removal order. Applicants must also show that they post minimal risk to Canadians and to Canadian society.
The factors that an immigration officer should consider include:
- The severity of the immigration violation that led to the removal.
- The applicant’s history of cooperation with IRCC. Pursuant to the Federal Court decision in Singh v. Canada (Immigration, Refugees and Citizenship), the filing of multiple applications to remain in Canada, such as humanitarian & compassionate requests as well as pre-removal risk assessments, should not be seen as a negative in terms of a history of co-operation with IRCC, nor should it be seen as having imposed an unreasonable cost of Canada.
- Whether there any previous immigration warrants.
- Whether the applicant complied with the terms and conditions of the document issued by IRCC.
- Whether the applicant paid for the removal costs.
- Whether compelling or exceptional circumstances exist.
- Whether there alternative options available to the applicant that would not necessitate returning to Canada.
- Whether there are factors that make the applicant’s presence in Canada compelling (e.g., family ties, job qualifications, economic contribution, temporary attendance at an event).
- Whether there are children directly implicated in the application whose best interests should be considered.
- Whether the applicant supports him or herself financially.
- How long the applicant intends to remain in Canada.
- Whether there are benefits that Canada may derive.
If a visa officer processing an application determines that an ARC is required they will send a letter which looks something like this:
ARC and the Underlying Inadmissibility
As the below IRCC internal correspondence shows, an application for an ARC must typically be accompanied by either a Temporary Resident Permit or H&C considerations to resolve the underlying inadmissibility if someone is inadmissible.
ARCPDFIn Umlani v. Canada (Citizenship and Immigration), 2008 FC 1373 Justice Russell implied that where the reasons for inadmissibility are minor the reasons for an ARC do not need to be particualrly compelling. He wrote:
The Applicant’s reason for wanting to re-enter Canada was hardly compelling (tourism) but he was forced to make an ARC request because of a harmless and inadvertent mistake that, in my view, falls under the “oversight” provisions of the Respondent’s own guidelines. The Officer makes it very clear in the Decision that he undertook a weighing process and it was not just the “tourism” that prompted the Decision. It was also the “failed refugee” factor (a clear mistake on the facts) and the serious import issue (incomprehensible on the facts).
As well, in Zarazua Gutierrez v. Canada (Citizenship and Immigration), 2010 FC 32, Justice Pinard stated:
It is difficult for me to imagine a less serious offence against the Act than the one committed by the applicant. It is true that the applicant did not leave Canada when the removal order became enforceable, before filing her PRRA application which, under a new regime, automatically imposed a stay on her departure order. Yet, up until the date of this PRRA application, the applicant never received instructions from CIC, and was therefore never given a departure date. It was only after she withdrew her application, on November 28, 2002, that the 30-day deadline was reinstated. Four days later the applicant left Canada.
The IAD and ARCs
Pursuant to the Federal Court of Appeal decision in Momi v. Canada (Citizenship and Immigration), 2019 FCA 163, the Immigration Appeal Division does not have the jurisdiction to determine whether an ARC refusal was reasonable or proceduraly fair. It can, however, determine whether there are sufficient humanitarian & compassionate grounds to overcome an ARC refusal in Family Class applications.
Record Suspension
In Laroche v. Canada (Citizenship and Immigration), 2022 FC 1017, Madam Justice Elliott noted that section 2.3 of the Criminal Records Act, RSC 1985 c C-47 (“CRA”), stipulates that a record suspension ““removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament””. While a record suspension under the CRA does not apply retrospectively to clear the conviction, it ““operates as an expression of the fact that although the conviction continues to exist, future consequences are to be minimized.”” A record suspension does not render the removal order invalid and the requirement for an ARC still stands. However, officers must consider the record suspension in their assessment of the Applicant’s application for an ARC as the Record Suspension is a critical piece of information.