April 22, 2019

Permanent Resident Facing Removal: Key Questions About Processing Times, Ability to Exit and Re-enter, Sponsorships and Permanent Residency Card Renewals

We receive a number of questions from our clients that are permanent residents and subject to section 44 reports.  Many have been referred to the Immigration Division (ID) and are facing potential removal from Canada.  I thought it might be helpful to address the four most common questions we receive.

1. How long will the process take from initial section 44 report to the conclusion of my case at the Immigration Appeal Division (IAD)?

It is important first to note that not all section 44 reports are referred to the ID (some result in warnings and no further action for example) and not all cases proceed to the Immigration Appeal Division (IAD).  On the flip side, some cases continue beyond the IAD if a challenge of the decision is filed in Federal Court.

Also, in certain cases like in a misrepresentation case where the permanent resident establishes on a balance of probabilities to the satisfaction of the ID member that s/he did not misrepresent the case could end at the ID.  This is unless the Minister seeks to overturn the decision in Federal Court.   So, it is very difficult to quantify the length of time but in cases that do proceed to the ID and the IAD the cases can take up to two years or more.            

Short answer, the process can be months to years.

2. Should a removal order be issued by Immigration Division, can I travel outside Canada if I appeal the removal order to the IAD?

For those interested in legislative references, pursuant to sections 2(1), 46(1)(c), 48(1) and 49(1)(c) respectively, of the Immigration and Refugee Protection Act (IRPA), if the ID issues a removal order against a person at the conclusion of an Admissibility Hearing, but he/she files an appeal to the IAD, the removal order does not come into force until a final decision is made by the IAD. Until a final decision is rendered by the IAD, the person retains his/her permanent resident status and as such has a right to enter and remain in Canada pursuant s. 27(1) of the IRPA.  That does not mean there may be questions and delays upon re-entering Canada so have evidence of your appeal with you.

Short answer, yes.

3. Can I renew my PR card while the removal order is pending appeal at the IAD?

Pursuant to sections 54(2), 56(2)(x) of the Immigration and Refugee Protection Regulations (IRPR), a permanent resident is eligible to renew his/her PR card, albeit for only 1 (one) year at a time, while the removal order is pending appeal at the IAD and until there is a final determination of the appeal.

Short answer, yes but only for one year at a time.

4. Can a person under removal order pending appeal sponsor his/her spouse to Canada?

Pursuant to sections 130(1), 133(1), 136 of the IRPR, and Canadian jurisprudence although a person under a removal order may submit a sponsorship application for his/her spouse, the application will not be processed until there is a final determination of the section 44(1) report.  The final determination would then include any decision by the ID.  If the ID issues a removal order against a sponsor under s.45 the final determination would then be the decision of the IAD if the sponsor/permanent resident utilizes his/her right of appeal pursuant to s.63(3) of the IRPA.

Short answer, yes but the sponsorship application will not be processed until the removal proceedings are concluded and only if the decision is in the permanent resident/sponsor’s favour and he or she retains her permanent resident status.

Thank you for reading.   For more information about removal proceedings please click here.

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