A stay of removal is a temporary legal measure that prevents the Canada Border Services Agency (CBSA) from removing someone from Canada while a legal challenge or another immigration process is ongoing. Whether you can obtain a stay depends on the type of immigration decision involved and whether Canadian law already provides an automatic stay.
When Can You Apply for a Stay of Removal?
One common situation is when you have received a negative immigration decision and are seeking leave and judicial review at the Federal Court. Filing a judicial review does not always automatically stop removal. In cases without an automatic statutory stay, you may need to bring a separate motion asking the Federal Court to stay your removal.
For example, after a refused Pre-Removal Risk Assessment (PRRA), Canada’s guidance states that you must leave unless the Federal Court grants a stay of removal. For more information please visit best immigration lawyer Surrey BC
There are also circumstances where the law provides an automatic stay. For example, certain applications for Federal Court review of a Refugee Appeal Division (RAD) decision can trigger a statutory stay, subject to specific exceptions.
A first eligible PRRA application can also provide a stay while the application is being processed, provided it is submitted within the applicable deadline.
How Do You Request a Court-Ordered Stay?
If your case does not have an automatic stay, the process generally involves:
- File an application for leave and judicial review of the underlying immigration decision.
- Prepare a motion for a stay of removal, particularly if your removal date is approaching.
- Provide evidence explaining why removal should be temporarily stopped.
- Demonstrate why the Court should grant interim relief while the judicial review proceeds.
- Attend the Federal Court hearing if one is scheduled.
Federal Court judicial review has strict filing deadlines. For example, Canada.ca states that certain immigration decisions must be challenged within 15 days when the decision was made in Canada, while different deadlines can apply depending on where the decision was made.
What Happens If the Stay Is Granted?
If the Federal Court grants a stay, CBSA must comply with the Court’s order and cannot remove you while the stay remains in effect. The stay is generally temporary and connected to the underlying legal proceeding.
A stay does not mean that your immigration application or judicial review has been won. It simply provides temporary protection from removal while the Court considers the underlying matter.
What If Your Removal Date Is Very Soon?
Timing is critical. A person facing imminent removal should obtain qualified Canadian immigration legal advice immediately. Do not assume that submitting a judicial review application by itself will stop CBSA from removing you. Canada’s immigration guidance specifically notes that some judicial review applications do not automatically stay removal.
The exact procedure and available remedy depend on the type of removal order, the immigration decision being challenged, your procedural history, and how soon removal is scheduled.
For an individual case, it is important to review the removal order, CBSA documents, the underlying immigration decision, and any applicable appeal or judicial-review deadlines before deciding what application to make.
