Guidelines for stay-of-removal process need better timing considerations

  • November 21, 2019

Time may be an abstract concept, but it can have harsh real-world implications for people facing forced removal from Canada.

This is a point the CBA’s Immigration Law Section makes in a letter commenting on the Federal Court’s draft guidelines which are intended to clarify best practices for conducting urgent stays of removal.

The Section says it’s concerned that the “inflexible timelines” in the guidelines will pose an unreasonable obstacle for applicants at risk of removal.

“The guidelines overlook the time it takes for the Canada Border Services Agency to decide on a request for deferral of removal, which is a critical intervening step between when a removal date is set and a motion seeking a stay of removal is filed.”

The Section says it has two overarching issues with the guidelines: they don’t specify how the timing of a delayed deferral decision by CBSA affects the times in the guidelines, and they’re unclear on the proper process or timeline if the applicant is seeking a stay of removal based on an underlying review of another decision.

“These concerns arise because CBSA is not required to adhere to a timeline when deciding on deferral requests and does not always make these decisions in a timely manner,” the Section says.

“Applicants seeking a stay of removal face circumstances out of their control, despite diligent efforts to maintain control over the pending litigation. CBSA and their counsel are better able to control the timing. The guidelines must reflect this difference and allow for flexibility.”