If you have received a removal order, you may be able to appeal your removal to the Immigration Appeal Division (IAD) in order to explain why you should be able to stay in Canada. This is known as a removal order appeal.
Who can Appeal?
In order to make a removal order appeal, you must have received a removal order and you are:
- A permanent resident of Canada
- A foreign national with a permanent resident visa, or
- A Convention Refugee or Protected Person
Who cannot Appeal?
You cannot appeal to the IAD if you have been found inadmissible to Canada because of:
- Serious criminality, which is defined as having:
- been punished in Canada by a sentence of six months or more of imprisonment, or
- been convicted of an offence outside Canada that would be punishable in Canada by a maximum term of imprisonment of at least ten years, or
- committed an act outside Canada that would be punishable in Canada by a maximum term of imprisonment of at least ten years.
- Organized crime
- Security grounds, or
- Violations of human or international rights
How to Start an Appeal?
You have 30 days after receiving the removal order to appeal to the IAD. To file a removal order appeal, you must submit to the IAD:
- A completed Notice of Appeal form.
- A copy of the removal order you received.
Appealing a Removal Order based on Residency Obligation
In this type of appeal, an immigration officer in Canada has decided that you did not comply with the residency obligation for permanent residents and as a result, a removal order was made against you. The law says that a permanent resident must be:
- “physically present in Canada” at least 730 days in every five-year period, or
- “physically present in Canada” or outside Canada for one of the allowable reasons set out under the law or its regulations, for a combined total of at least 730 days in every five-year period.
Can you prove that you were in Canada for the required time?
If you believe that the officer’s decision was wrong because, during the five-year period in question, you did live in Canada for at least 730 days, you will have to demonstrate this by testimonies or documents. Gather documents and witnesses who can demonstrate that you were in Canada for the required time.
Did you have an acceptable reason for being out of Canada?
If you were outside of Canada for longer than the law allows, it might be for reasons that would fit into one of the exceptions allowed by the law. This may mean that the time you were living outside Canada can be added to the time physically present in Canada to fulfil your residency obligation. These exceptions include:
- Working as a full-time employee assigned outside Canada for a Canadian business or organization.
- Accompanying a spouse, common-law partner or a parent who is a permanent resident, working as a full-time employee assigned outside Canada for a Canadian business or organization. A child can make this case only if they were a dependent child of the working parent at the time they lived outside Canada.
- Accompanying a spouse, common-law partner or a parent who is a Canadian citizen. A child can make this case only if they were a dependent child of the Canadian citizen at the time they lived outside Canada.
If one of these exceptions applies to you, you must provide evidence such as witnesses or documents that support the reason you are relying on
Do you have humanitarian and compassionate reasons for your appeal?
Another way to succeed in your appeal is to show the IAD that there are sufficient humanitarian and compassionate (H&C) grounds for your appeal to be allowed, even if you were outside Canada longer than the law permits. The decision-maker will take into consideration all the relevant evidence to reach a fair decision.
Here are some factors that the IAD may consider:
- The length of time you lived in Canada
- Your level of establishment in Canada (for example your assets in Canada, activities and jobs held in Canada, community involvement in Canada)
- The reason why you left Canada and why you remained outside Canada so long
- Whether you tried to return to live in Canada at the earliest opportunity
- The impact on you losing your permanent resident status. Will you suffer any hardship as a result?
- The impact on your family members in Canada if you were to lose your permanent resident status
- The support you have in Canada from family and others in the community
- The impact on the best interests of any child affected by losing your permanent resident status
- If you left Canada as a child, your efforts to return to Canada when you were no longer a child.
To show the closeness of your relationships with family and community in Canada, you can include documents such as letters and messages from family and friends, phone bills, family photographs and receipts for money transfers. You may also want them to testify at your hearing.
IAD can allow your appeal, stay your appeal, or dismiss it.
If your appeal is allowed
The removal order will be cancelled and you will be able to remain in Canada. If you were already a landed permanent resident, you will keep that status. If you hold a permanent resident visa but did not become a landed permanent resident, you should contact Immigration, Refugees and Citizenship Canada (IRCC).
If your appeal is stayed
The removal order will be put on hold temporarily and you will be able to stay in Canada provided you respect certain conditions. The Immigration Appeal Division (IAD) will reconsider your appeal at a later date as indicated in your decision. The IAD may change the conditions or cancel the stay at any time. If the IAD cancels the stay, it will then decide to either allow or dismiss your appeal.
It is important to respect all the conditions in your stay decision. If you do not, your stay can be cancelled and your appeal may be dismissed. You must notify both the IAD and Canada Border Services Agency (CBSA) if your contact information changes while your removal is stayed. This is one of the conditions of your stay.
If your appeal is dismissed
The removal order will take effect, which means CBSA may remove you from Canada. You may apply to the Federal Court of Canada for leave, or permission, for judicial review. The Court will either dismiss your application or return the case to the IAD for re-hearing.
Get in Touch for more information or for appealing at the Immigration Appeal Division (IAD) of Immigration and Refugee Board of Canada (IRB).