Canadian Refugee Procedure/44-53 - Loss of Status and Removal

IRPA Sections 44-53

Sections 44-53 of the Immigration and Refugee Protection Act read:

DIVISION 5
Loss of Status and Removal

Report on Inadmissibility

Preparation of report
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

Conditions
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

Conditions — inadmissibility on grounds of security
(4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person.

Duration of conditions
(5) The prescribed conditions imposed under subsection (4) cease to apply only when
(a) the person is detained;
(b) the report on inadmissibility on grounds of security is withdrawn;
(c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security;
(d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or
(e) a removal order is enforced against the person in accordance with the regulations.

44(1): An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister

Section 44(1) of the Act provides that an officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. Although section 44 of the Act does not state this explicitly, officers and Minister’s delegates have the discretion not to exercise their power to refer to the ID the file of a person likely to be found inadmissible, especially when H&C considerations militate against their removal.

IRPA Section 45: Admissibility Hearing by the Immigration Division

Admissibility Hearing by the Immigration Division

Decision
45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:
(a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;
(b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;
(c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or
(d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.

IRPA Section 46: Loss of Status

Loss of Status

Permanent resident
46 (1) A person loses permanent resident status
(a) when they become a Canadian citizen;
(b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;
(c) when a removal order made against them comes into force;
(c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
(d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or
(e) on approval by an officer of their application to renounce their permanent resident status.

Effect of renunciation
(1.1) A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved.

Effect of ceasing to be citizen
(2) A person becomes a permanent resident if he or she ceases to be a citizen under
(a) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, other than in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force;
(b) subsection 10(1) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act; or
(c) subsection 10.1(3) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act.

History

46(1)(c.1) was added to the IRPA as part of the PCISA amendments in 2012.

IRPA Section 47: Temporary resident

Temporary resident
47 A foreign national loses temporary resident status
(a) at the end of the period for which they are authorized to remain in Canada;
(b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or
(c) on cancellation of their temporary resident permit.

IRPA Section 48: Enforcement of Removal Orders

Enforcement of Removal Orders

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

Effect
(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.

48(2): The removal order must be enforced as soon as possible

Section 48(2) provides that 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. This process may involve providing the foreign national with a document called a Direction to Report.

Discretionary relief for those facing deportation is also available through requests for deferrals of removal. The power is based on subsection 48(2) of the IRPA, which states that "[i]f 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".

The enforcement officer’s discretion is restricted to determining when, and not if, the removal will be executed. This discretion should only be exercised for those cases where there is clear evidence of a “risk of death, extreme sanction or inhumane treatment,” or where there are temporary, short-term exigent circumstances such as the need for a child to finish a school year or obtain specialized ongoing medical care in Canada.

The idea behind deferring in situations of risk of death, extreme sanction or inhumane treatment is that enforcement of the removal order is not "possible" if it would mean refoulement. Upon request, a removals officer must consider whether the individual has offered ‘new’ evidence not previously assessed before the IRB or in a PRRA application that they would be exposed to "a risk of death, extreme sanction or inhumane treatment" if deported.

With respect to the second category that can justify deferring removal, namely temporary, short-term exigent circumstances, the following are examples of these situations. Completing an academic year for children would qualify. Making effective travel arrangements, or pending births or deaths are also said to qualify. The list is certainly not closed, but the constant is that the stay is for short periods of time. In contrast, Sanchez v. Canada provides an example of circumstances that do not so qualify. In that case, the court noted that "a deferral of the Applicant’s removal for 60 days to December 28, 2025, would not have been responsive or cure any of the alleged harm to his spouse in relation to her mental health issues, nor address the best interests of the child, which are all long-term considerations that are outside of the Officer’s powers to grant only a 'short-term' deferral that is not meant to address long-term or chronic conditions." The unfortunate but inevitable consequences of removal, such as anxiety, also do not warrant deferral.

Section 48 used to require departure as soon as reasonably practicable. It is now “as soon as possible”. As recognized by the Court of Appeal in Lewis v Canada, the previous wording of ss. 48(2) “was arguably more broadly worded”. The effect of the current wording is that the discretion window allowed the deferral officer was made narrower by the amendments of 2012.

For example:

• Making effective travel arrangements.
• Completing an academic year for children: On a deferral request, CBSA officers may only consider the short-term best interests of children. When the removal takes place a few weeks before the end of a school year, those short-term best interests may require that the child be allowed to complete the school year in Canada. However, in a case where the removal is scheduled closer to the beginning than to the end of the school year, this would not justify deferral.
• Pending births or deaths.
• Health issues.

In cases where a decision has not yet been made on a previously submitted humanitarian and compassionate application, absent “special considerations”, such applications will not justify deferral unless based upon a threat to personal safety.

That said, when the government is made aware of an applicant’s intention to bring a motion for a stay of removal, the government must not proceed with the removal in a way that deprives the applicant of the right to seek a stay on an urgent and highly expedited basis.

Despite the fact that the IRPA specifies that enforceable removal orders "must be enforced as soon as possible", the reality of such enforcement has long lagged behind this legislative goal; for example, in 2013 and 2014 combined, 14 per cent (2,674) of those who claimed asylum after 15 December 2012 were deported - highlighting a gap between the claim acceptance rate and those deported. Specifically, just over half of the people ordered removed after failed refugee claims in 2013 were deported within one year, and the government's target of 80 per cent was not reached. This is common to asylum systems around the world, for example in Britain, nearly seven in ten of those refused in 2015 were still in Britain in 2022, according to the Migration Observatory at the University of Oxford. As of 2024, the Canada Border Services Agency had deported 14,000 inadmissible people between January and October of that year and there were nearly 30,000 people with outstanding deportation orders in Canada - mainly those who failed to appear for deportation proceedings and those facing active immigration warrants.

IRPA Section 49: In force date of removal orders

In force
49 (1) A removal order comes into force on the latest of the following dates:
(a) the day the removal order is made, if there is no right to appeal;
(b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and
(c) the day of the final determination of the appeal, if an appeal is made.

In force — claimants
(2) Despite subsection (1), a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates:
(a) the day the claim is determined to be ineligible only under paragraph 101(1)(e);
(b) in a case other than that set out in paragraph (a), seven days after the claim is determined to be ineligible;
(c) if the claim is rejected by the Refugee Protection Division, on the expiry of the time limit referred to in subsection 110(2.1) or, if an appeal is made, 15 days after notification by the Refugee Appeal Division that the claim is rejected;
(d) 15 days after notification that the claim is declared withdrawn or abandoned; and
(e) 15 days after proceedings are terminated as a result of notice under paragraph 104(1)(c) or (d).

There is a difference between the in-force date for a removal order where a claim is ineligible under the Safe Third Country Agreement and other ineligibilities

Section 49(2) provides that a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the listed dates. The first circumstance listed is where a claim is determined to be ineligible only under paragraph 101(1)(e). This provision of the Act concerns circumstances where the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence. Such removal orders come into force the day the claim is determined to be ineligible, meaning that such persons can immediately be turned around at the US border. The second item in the list concerns other reasons for ineligibility. Such removal orders come into effect seven days after the claim is determined to be ineligible. The effect of this is that a claimant who is eligible under the Safe Third Country Agreement, but ineligible on other grounds, will be allowed into Canada when their claim is being assessed at a Port of Entry because the removal order only comes into force seven days later. Such persons may subsequently have access to a PRRA process.

See further: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim

A removal order comes into force on the latest of the following dates...if the claim is rejected by the RPD, on the expiry of the time limit referred to in subsection 110(2.1) ...

Section 49(2)(c) provides that a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates, one of which is that if the claim is rejected by the Refugee Protection Division, on the expiry of the time limit referred to in subsection 110(2.1) or, if an appeal is made, 15 days after notification by the Refugee Appeal Division that the claim is rejected. See section 110(2.1) of the IRPA: Canadian Refugee Procedure/110-111 - Appeal to Refugee Appeal Division#IRPA Section 110(2): Restrictions on appeals.

IRPA Section 50: Stay

Stay
50 A removal order is stayed
(a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;
(b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;
(c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction;
(d) for the duration of a stay under paragraph 114(1)(b); and
(e) for the duration of a stay imposed by the Minister.

IRPA Section 51: Removal order void on permanent residence

Void — permanent residence
51 A removal order that has not been enforced becomes void if the foreign national becomes a permanent resident.

No return without prescribed authorization
52 (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.

Return to Canada
(2) If a removal order for which there is no right of appeal has been enforced and is subsequently set aside in a judicial review, the foreign national is entitled to return to Canada at the expense of the Minister.

IRPA Section 53: Regulations

Regulations
53 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting
(a) conditions that may or must be imposed, varied, or cancelled, individually or by class, on permanent residents and foreign nationals;
(a.1) the form and manner in which an application to renounce permanent resident status must be made and the conditions that must be met before such an application may be approved;
(b) the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national;
(c) the circumstances in which status may be restored;
(d) the circumstances in which a removal order may be stayed, including a stay imposed by the Minister and a stay that is not expressly provided for by this Act;
(e) the effect and enforcement of removal orders, including the consideration of factors in the determination of when enforcement is possible;
(f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and
(g) the financial obligations that may be imposed with respect to a removal order.

The regulations may provide for matters relating to this Division

Section 53 of the IRPA provides that the regulations may provide for any matter relating to the application of this Division. See: Canadian Refugee Procedure/IRPR ss. 235-243 - Enforcement of Removal Orders.