Deferring Removal

Meurrens LawHumanitarian and Compassionate, Inadmissibility

Section 48 of Canada’s Immigration and Refugee Protection Act provides that:

Enforceable removal order

48. (1) A removal order is enforceable if it has come into force and is not stayed.

(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.

Federal Court of Appeal Jurisprudence

Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81) is the leading Federal Court of Appeal decision on the discretion that Canada Border Services Agency (“CBSA”) officers have to defer removal.  There, the Federal Court of Appeal stated that “it is trite law that an enforcement officer’s discretion to defer removal is limited.”

The Federal Court of Appeal went on to note that deferral of removal “should be reserved for those applications or processes where the failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment in circumstances where deferral might result in the order becoming inoperative.” It elaborated on several other principles guiding the deferral of removal process, including that:

  • there are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths.
  • the CBSA is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Immigration and Refugee Protection Act (the “IRPA”). In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their humanitarian & compassionate (“H&C”) applications, they can be made whole by readmission.
  • In order to respect the policy of the IRPA which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose an individual to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety.
  • Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application.
  • An enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order.

In Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 i, the Federal Court of Appeal further stated that deferrals are intended to be temporary and that enforcement officers are not intended to make, or to re-make, pre-removal risk assessment or H&C decisions.

Finally, in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130) the Federal Court of Appeal held that the Supreme Court of Canada’s decision in Kanthasamy did not broaden the discretion of removals officers to consider the best interests of children when deciding whether to , and that the holding in Kanthasamy applies only to H&C decisions made under section 25 of the IRPA, a provision which specifically applies to permanent residence applications.  Interestingly, the Federal Court of Appeal did stress that while a full best interests of the child analysis is not appropriate, in cases involving the possible removal from Canada of first-nations children where they have non aboriginal parents, then the short term interests will be enhanced if he or she maintain some connection with his or her culture, heritage and, ideally, territory, to help foster a sense of belonging and pride, and that enforcement officers must consider the unique interests of aboriginal children. Two key paragraphs are:

Thus, under this well-established line of authority, the mere fact that an H&C application has been made shortly before the removal date by those subject to being removed or the fact that they might take their Canadian-born children with them when they are removed from Canada does not mean that a deferral under section 48 of the IRPA is warranted. Nor is an enforcement officer entitled to engage in a full-blown analysis of the best interests of such children as so doing would usurp the function of H&C officers under section 25 of the IRPA.

In previous cases, such short-term best interests have been found to include matters such as the need for a child to finish a school year during the period of the requested deferral (see, e.g. Munar at para. 40; Khamis at para. 30) or maintaining the well-being of children who require specialized ongoing medical care in Canada (see, e.g. Danyi at paras. 36-40). In addition, as noted in Munar at paragraphs 40-42, the short-term needs of a child that an enforcement officer must consider include ensuring that there will be someone to care for the child after his or her parent(s) are removed if the child is to remain in Canada.

Federal Court Jurisprudence

In Forde v. Canada (Citizenship and Immigration) 2018 FC 1029, the Chief Justice, in a decision which seemed to partially written for other Federal Court justices, reiterated that sympathy should not trump the law as articulated by the Federal Court of Appeal when it comes to deferring removal.  The Chief Justice wrote:

In performing this role, the Court must give paramount importance to the law, even where the skillful and animated efforts of counsel to kindle and fan its compassion may have hit their mark. Any shirking of this weighty responsibility can have profound adverse effects on public confidence in the Court and in the rule of law. In the field of immigration law, this can also undermine public confidence in, and the integrity of, this country’s immigration system, as compassionate considerations appear to be advanced on behalf of most applicants for judicial review who face removal from Canada.

The Chief Justice went on to note that:

To permit a person to avoid removal from Canada by filing a spousal sponsorship or an H&C application shortly before the scheduled removal, or indeed well after being notified that he or she is subject to removal, would be contrary to the principles articulated in Lewis and the jurisprudence cited therein. Pursuant to that case law, a removals officer is not entitled to defer removal where a decision on an outstanding application is unlikely to be imminent

There is some jurisprudence, however, to suggest that the situation may be different for a timely filed H&C application which has been in the system for a long period of time.  In Nucum v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1187, for example, the Federal Court ordered that removal should be deferred for this reason.

Hence, and to reiterate, as the Federal Court summarized in Danyi v. Canada (Public Safety and Emergency Preparedness), 2017 FC 112, the jurisprudence has established that enforcement officers are required to consider the short-term best interests of a child in a fair and sensitive manner and that while the best interests of the children are certainly a factor that must be considered in the context of a removal order, they are not an over-riding consideration.