Who Qualifies for a Stay of Removal in Canada?

If you are facing removal from Canada, one of the first questions you may have is: who qualifies for a stay of removal? A stay of removal is a temporary measure that stops deportation while a legal process is underway. It does not cancel the removal order, but it can pause the deportation process in specific circumstances.

Under Canadian immigration law, eligibility depends on the type of removal order, your immigration status, and whether you have active legal proceedings before the Immigration and Refugee Board or the Federal Court.

What Is a Stay of Removal?

A stay of removal is a legal order that temporarily halts enforcement of an enforceable removal order. Once a removal order becomes enforceable, the Canada Border Services Agency (CBSA) may require the person to leave Canada immediately.

There are three main types of removal orders under the Immigration and Refugee Protection Act:

1. Departure Order

2. Exclusion Order

3. Deportation Order

A deportation order permanently bars re-entry unless the person obtains Authorization to Return to Canada (ARC). An exclusion order carries a one-year or five-year exclusion period. A departure order becomes a deportation order if the person does not leave Canada within 30 days.

For more information about challenging a removal order, see our detailed guide.

Who Qualifies for a Stay of Removal?

Eligibility depends on whether the stay is automatic or discretionary.

Individuals with Pending Appeals

In certain situations, removal is automatically paused while an appeal is pending. For example, individuals who have filed a timely appeal to the Immigration Appeal Division or the Refugee Appeal Division may benefit from a stay during the appeal process.

Similarly, a first Pre-Removal Risk Assessment (PRRA) application can stay removal if it is submitted within the required timelines after notification. The PRRA process evaluates whether removal would expose a foreign national to persecution, torture, or risk to life.

However, it is important to understand that filing for judicial review at the Federal Court does not automatically stop removal. A separate motion for a stay must be filed urgently. Many individuals misunderstand this and assume that beginning court proceedings freezes enforcement. It does not.

Stays at the Federal Court: The Three-Part Test

When seeking a stay at the Federal Court, the judge applies a three-part legal test. All three branches must be satisfied.

The first branch is whether there is a serious issue to be tried. This does not mean proving you will win. It means showing that your case raises a genuine legal question. Examples include procedural fairness breaches, misapplication of the law, failure to consider key evidence, or decisions based on false or misleading information. The Court is simply asking whether the judicial review is arguable and not frivolous.

The second branch is irreparable harm. This is often the most difficult part of the test. The applicant must show that if removal proceeds now, harm will occur that cannot later be repaired. This can include risk of persecution or torture, security risks in the home country, severe medical hardship, serious psychological harm, or permanent family separation involving Canadian born children. The harm must be supported by evidence. General hardship or emotional distress is usually insufficient.

The third branch is the balance of convenience. Here, the Court weighs the harm to the applicant against the government’s interest in enforcing immigration law. Public safety concerns, serious criminality, organized criminality, and security threats can weigh heavily in favour of removal. On the other hand, strong establishment in Canada, compliance with immigration conditions, and absence of criminal history can support the applicant’s position.

All three factors work together. Even if there is a strong legal issue, a stay can fail if irreparable harm is weak. Even if harm is serious, public safety concerns may outweigh it.

Procedural Errors or New Evidence

Many stay applications arise because of procedural fairness issues in the original immigration process.

Examples include situations where the Refugee Protection Division failed to consider relevant evidence, misunderstood country conditions, or made credibility findings that were speculative or unsupported. Errors at an admissibility hearing, including failure to properly apply the law on serious criminality or organized crime, can also raise serious issues.

In some cases, the decision was based on incorrect or misleading information, and the individual was not given a proper opportunity to respond. That can amount to a breach of procedural fairness.

New evidence can also play a critical role. Country conditions may deteriorate. Medical diagnoses may arise after the hearing. New threats may emerge in the home country. While judicial review generally focuses on the record before the decision-maker, new evidence can strongly support the irreparable harm branch of the stay test or form the basis of a PRRA application.

Who May Not Qualify?

A stay is not guaranteed. Individuals found inadmissible for serious criminality, organized criminality, security risks, war crimes, or human rights violations face a much higher threshold. The CBSA prioritizes removal of individuals who pose risks to public safety.

History of immigration violations, failure to comply with reporting conditions, or prior findings of misrepresentation can also negatively impact the balance of convenience analysis.Risk of Irreparable Harm

Step-by-Step Guide to Requesting a Stay

If you have received a removal date, timing becomes critical.

First, confirm the type of removal order you are subject to and whether it is already enforceable.

Second, identify available legal avenues. This may include an appeal to the Immigration Appeal Division, a Refugee Appeal Division appeal, judicial review at the Federal Court, a PRRA application, a humanitarian and compassionate application, or a deferral request to CBSA.

Third, gather detailed supporting evidence. Medical documentation, country condition reports, affidavits, proof of family ties, and documentation of legal errors are often essential.

Fourth, file the appropriate application within strict deadlines. Federal Court stay motions often require immediate preparation of affidavits and written legal submissions.

Finally, continue complying with all immigration conditions and reporting obligations while proceedings are pending.

How an Immigration Lawyer at AKM Law Can Help

A stay of removal is legally technical and extremely time-sensitive. The difference between a well-prepared stay motion and a weak one can determine whether removal proceeds.

At AKM Law, we represent individuals facing departure orders, exclusion orders, deportation orders, criminal inadmissibility findings, refugee claim refusals, and complex Federal Court proceedings. We prepare detailed stay motions, PRRA submissions, deferral requests to CBSA, and appeals to the Immigration Appeal Division.

If you are facing removal, the right legal strategy can preserve your ability to remain in Canada while your case is properly reviewed.

Removal is serious. Acting quickly and strategically is essential.

This article is for general information only and does not constitute legal advice. For tailored guidance on your application, please contact our office.