Who issues removal orders in Canada?
Anna is an international student in Canada. She is a Polish citizen. While Anna enthusiastically started her studies in Canada, she lost her interest and stopped studying. Despite the expiry of the study permit, Anna is still in Canada. Consequently, she worries the authorities will issue her a removal order. She wonders who issues removal orders in Canada and the consequences.
Table of contents
What is a removal order?
A removal order is a document that orders you to leave Canada. We have three types of removal orders. Of course, the consequences of each are different.
- Departure Order: If you receive a Departure Order, you must leave Canada and report your departure to CBSA. However, you do not need an Authorization to Return to Canada (ARC) because of a Departure Order. Unfortunately, if you do not leave Canada in 30 days or do not report your departure, the Departure order becomes a Deportation Order.
- Exclusion Order: An Exclusion Order will ban you from returning to Canada for 12 months. In case of misrepresentation, the ban is for 60 months. However, you may return to Canada within the barred period if IRCC approves your ARC application.
- Deportation Order: A Deportation Order bans you from Canada for life. However, you may return if you receive a positive response to the ARC application.
I have two other articles that explain the removal orders and ARC applications in more detail. Please click the following links if you are interested.
- Removal Orders Canada – Deportation, Exclusion, Departure
- Authorization to Return to Canada – ARC Application
Grounds for a removal order
Inadmissibility to Canada is the reason for removal orders. Consequently, only permanent residents of Canada (PR) or foreign nationals (FN) could receive such orders. Several sections of the Immigration and Refugee Protection Act (IRPA) define the grounds for inadmissibility. I briefly list these sections below. However, the intention is to simplify matters. Do not consider the following list an accurate or legal description of these sections.
- 34: Security – issues such as espionage, terrorism, or membership in terrorist organizations
- 35: Human rights violations
- 36: Criminality or serious criminality
- 37: Organized criminality (e.g., membership in a criminal gang)
- 38: Health grounds (i.e., medical inadmissibility)
- 39: Financial reasons
- 40: Misrepresentation
- 40.1: Cessation of refugee protection (e.g., when a protected person voluntarily gives up their refugee status for any reason)
- 41: Breaking the immigration law, such as overstaying in Canada, working without a permit, or not meeting the residency obligations
- 42: Inadmissibility because of a family member, whether accompanying or non-accompanying
- 43: Other issues mentioned under the Immigration and Refugee Protection Regulations (nothing at this moment, though)
Who issues a removal order?
Three organizations could issue a removal order:
- CBSA, or Canada Border Services Agency, is the enforcement wing of immigration. Therefore, they are the primary source of issuing removal orders. They initiate the issuance of most other removal orders by submitting a 44 report.
- IRB, or the Immigration and Refugee Board of Canada, is a court-like organization. They decide many things, including, but not limited to, removal orders. Therefore, they are another organization that issues these orders. However, in almost every scenario, CBSA administers the initial request for the removal, also known as the 44 report.
- IRCC, or the Immigration, Refugees and Citizenship Canada, is the decision-maker in visa and immigration applications. Consequently, they rarely issue removal orders. However, they produce removal orders in exceptional situations, such as refugee claims at an inland office.
When CBSA issues a removal order
As I mentioned earlier, CBSA initiates almost every removal order process. However, they do not wait for the IRB to hand down the following removal orders. In other words, you receive these removal orders directly from CBSA.
| Nature of Removal Order | Ground(s) of Inadmissibility or Reason | Statutory Reference / Detail |
|---|---|---|
| Deportation Order | Serious criminality or criminality | 36(1)(a) or 36(2)(a) (s.228(1)(a)) |
| Transborder criminality (offences on entry) | 36(2.1); s.228(1)(a.01): Criminal Code ss. 86, 87, 90, 91, 95, 104; IRPA 124(1)(b); Firearms Act s.110; Customs Act 159(1), 160(1), 12, 156 | |
| Misrepresentation (other than ETA/visa exemption) | 40(1)(c) (s.228(1)(b)) | |
| Inadmissible family member (except 42(2)(a)) | 42 (s.228(1)(d)); same order as the inadmissible family member | |
| Inadmissible family member (as per 42(2)(a)) | 42(2)(a) (s.228(1)(e)); deportation order | |
| Sanctions | 35.1(1) (s.228(1)(f)) | |
| Exclusion Order | Misrepresentation relating to ETA/visa exemption | 40(1)(a) (s.228(1)(a.1)) |
| Failing to appear for examination/admissibility hearing | 41 (s.228(1)(c)(i)) | |
| Failing to establish possession of required visa/document | 41 (s.228(1)(c)(iii)) | |
| Failing to leave Canada at end of authorized stay | 41, 29(2) (s.228(1)(c)(iv)) | |
| Failing to comply with conditions (183(1)(d), 184, 220.1(1)) | 41, 29(2) (s.228(1)(c)(v)) | |
| Failing to comply with declaration condition | 41, 20(1.1), 22.1(1) (s.228(1)(c)(vi)) | |
| Failing to comply with 43(1)(e) condition | 41 (s.228(1)(c)(vii)) | |
| Failing to submit to medical examination | 41, 16(2)(b) (s.228(1)(c)(viii)) | |
| Failing to appear for port of entry examination | 41, 18(1) (s.228(1)(c)(ix)) | |
| Directed back to US and inadmissible for not proving they will leave | 41, s.228(1.1) | |
| Departure Order | Cessation of refugee protection | 40.1(1) (s.228(1)(b.1)) |
| Permanent resident fails to meet residency obligation | 28 (s.228(2)) | |
| Certain refugee claimants: misrepresentation (ETA), and certain s.41 failures | s.228(3): (a.1), (c)(i), (c)(iii), (c)(iv), (c)(v), (c)(viii), (c)(ix) | |
| Eligible refugee claim for protection (see above) | s.228(3) |
Notes and Clarifications
- If the inadmissibility is due to serious criminality or general misrepresentation (except ETA), a deportation order is issued.
- Exclusion orders are most often for administrative or documentary non-compliance, including overstaying or failing to establish that you will leave Canada.
- Departure orders are issued for certain refugee claimants and for permanent residents who breach the residency obligation.
Special Situations
- For inadmissible family members (section 42): normally, the same removal order is issued as for the principal family member, except in cases under 42(2)(a), where a deportation order is mandated.
- For minors under 18 who are not accompanied by a parent/adult, or who are unable to appreciate proceedings, the report is not referred (s.228(4)).
- Refugee claimants: where a claim has been found eligible, a departure order is issued for certain breaches rather than an exclusion or deportation order (s.228(3)).
- Directed back to the US: an exclusion order applies (s.228(1.1)).
How the IRB handles cases
The Immigration Division (ID) of IRB receives removal requests from CBSA. They hold a hearing, and if they agree with the CBSA report, they issue a removal order. However, sometimes the Minister or the applicant files an appeal. The Immigration Appeal Division (IAD) is responsible for running hearings for those appeals. If IAD sides with the Minister, they issue the removal order.
When the IRB issues a removal order
Sometimes, the IRB (almost always the Immigration Division) issues a removal order.
| Nature of Removal Order | Ground(s) of Inadmissibility or Reason | Statutory Reference / Detail |
|---|---|---|
| Deportation Order | Security grounds | 34(1) (s.229(1)(a)) |
| Violating human or international rights | 35(1) (s.229(1)(b)) | |
| Serious criminality (PR: 36(1); FN: 36(1)(b) or (c)) | 36(1) (s.229(1)(c)) | |
| Criminality | 36(2)(b) or (c) (s.229(1)(d)) | |
| Transborder criminality (not listed in 228(1)(a.01)) | 36(2.1) (s.229(1)(d.1)) | |
| Organized criminality | 37(1) (s.229(1)(e)) | |
| Misrepresentation (paragraph 40(1)(d)) | 40(1)(d) (s.229(1)(i)) | |
| Exclusion Order | Health grounds | 38(1) (s.229(1)(f)), unless (2) or (3) applies |
| Financial reasons | 39 (s.229(1)(g)), unless (2) or (3) applies | |
| Misrepresentation (paragraph 40(1)(a) or (b)) | 40(1)(a) or (b) (s.229(1)(h)), unless (3) applies | |
| Failing to appear for examination | 41(a) (s.229(1)(j)), unless (2) or (3) applies | |
| Failing to establish coming for PR | 41(a) (s.229(1)(l)), unless (3) applies | |
| Failing to establish will leave at end of stay | 41(a) (s.229(1)(m)), unless (2) applies | |
| Departure Order | Inadmissible for non-compliance (other than above) | 41(b) (s.229(1)(k)) |
| Exclusion Order | Other failures to comply | 41(a) (s.229(1)(n)), unless (2) or (3) applies |
| Departure Order | Eligible claim for refugee protection (see notes) | 229(2) |
| Deportation Order | Exceptions (see notes below) | 229(3) |
| Section 228 circumstances | See notes below for cross-reference | 229(4) |
Notes:
- Eligible refugee claimants (229(2)): If a person is found eligible for referral to the Refugee Protection Division (or no determination is made), a departure order is issued for the following grounds: health (f), financial (g), failing to appear (j), failing to establish will leave Canada (m), or other failures to comply (n).
-
Exceptions (229(3)): For cases under (f), (g), (h), (j), (l), or (n), a deportation order is issued if:
- The person was previously subject to a removal order and is inadmissible on the same grounds,
- The person failed to comply with a condition or obligation imposed under the Act (unless this is the basis for the current removal), or
- The person was convicted in Canada of an indictable offence or of two federal offences not arising from a single event (unless this is the basis for the removal order).
- Section 228 circumstances (229(4)): If the grounds match those in section 228, the Immigration Division must issue the same removal order as would have applied under section 228.
Relevant article:
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Al Parsai, LLM, MA, RCIC-IRB
Regulated Canadian Immigration Consultant
Adjunct Professor, Queen’s University Faculty of Law
Instructor, Ashton College, Immigration Consulting Program
Author of 88 Tips on Immigration to Canada and Inadmissibility to Canada for Human Rights Violations
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