Deferral Requests and the Emergency Stay Application

“If the Canada Border Services Agency is interpreting section 48 of the Immigration and Refugee Protection Act which now requires removal “as soon as possible” rather than “as soon as practical”, so that the only way the removal can be stopped is by court order, then so be it! What happened to common sense?” Begum v. Canada (MCI) [2013] FCJ No. 658 para 16.

The Deferral Request

There will come a time when your client has exhausted all avenues in obtaining status and putting off the enforcement of a removal order. There are various statutory, regulatory and potential administrative stays against enforcement of a removal order. 

One day, your client will be called in to meet with an enforcement/removals officer. They should be cautioned; if they give the officer the impression that they will not comply with removal they will be detained. I wrote about detention and the stay of removal a long time ago. 

Here, I will mainly discuss making a deferral request to that removals officer. The deferral request should only be made in certain circumstances; officers have limited discretion in granting such requests –it is, after all, their job to carry out enforcement.

When an applicant is advised of imminent removal they/their counsel can make detailed submissions and provide credible and cogent supporting documentation to the  removals Officer setting out the case to defer removal for a reasonable period of time (e.g. until leave is determined on an underlying application for judicial review for a PRRA refusal; if there is a pregnancy, or ongoing medical treatment that needs to run its course in Canada; if there are school aged children in the middle of their school years and prejudice would result if there was an interruption to their education). An outstanding H&C or an in-Canada spousal/common-law application is not generally a great ground for a deferral (barring unusual circumstances; in one recent case we argued counsel incompetence as an application for a spousal sponsorship was not filed for 30 months). There are other unusual circumstances that may warrant a request for a deferral. 

If granted, the Officer’s decision to defer is a limited horizon administrative stay of removal.

Counsel are advised to take their best shot and put everything relevant before the responsible officer. Do this as soon as possible.

If an officer acquiesces, you’ve just avoided having to burn the midnight oil to draft a Notice of Motion for a stay.

If the officer refuses, the stay application can either be predicated on the underlying application for leave and judicial review, or, if there is no application, counsel will file an application for judicial review to challenge the refusal of the deferral. There is a lower threshold for the former; and a higher threshold for the latter.

In the event of an unreasonable refusal, the person concerned can seek a stay of removal from the Court. Counsel should have regard to Justice Zinn’s presentation regarding stays against removal. A stay requires a motion filed with the Court and served on the DoJ.

We have been doing numerous stays these days; I think Bjorn may have set a record having done 6 or 7 stay applications in the last few weeks. He’s won all but one. God willing that streak continues, but such applications entail a lot of work in a very short time frame resulting in a lot of stress for both the client and the responsible lawyer. I was happy to have a stay granted last week by Justice Favel; I had to talk fast because only 30 minutes were allotted to the hearing. We’ve been doing these types of applications for a long time. It is an extraordinary remedy.

These are challenging applications and counsel should have regard to the Court’s (consolidated) practice guidelines.

The stay application (and the other statutory, regulatory and administrative stays against removal) were discussed in detail in my text on inadmissibility and remedies written with my co-author Aris Daghighian.

Good luck!