November 30, 2015

Deportation Orders & Authorization to Return to Canada

Individuals who leave Canada under a “Deportation Order” require special Authorization to Return to Canada (ARC). Leaving under a Deportation Order does not mean that you were physically deported from Canada by the authorities, but that the type of removal order you have is a Deportation Order. This means that even if you voluntarily comply with that order and even pay your own transportation from Canada, you would still need ARC to re-enter Canada.

ARC is a discrete application that may be made to a Visa Office in conjunction with another application for entrance to Canada – either temporary or permanent. It is not advisable to apply for this application at a Port of Entry. The standard procedure is, once the underlying temporary or permanent residence application has been assessed, that the Visa Officer will invite the foreign national to apply for ARC. An Officer will consider whether there are sufficient reasons for the applicant to enter Canada given the other application under consideration and the applicant’s past conduct in Canada.

There are two main circumstances where individuals obtain Deportation Orders: (1) the person was found to be criminally inadmissible to Canada or (2) the person received a Departure Order, but did not leave Canada as required and so the Departure Order was converted to a Deportation Order. This conversion occurs most commonly with refugee claimants and with permanent residents who lost their status due to not meeting the residency requirements. The Immigration and Refugee Protection Regulations provide:

224. (1) For the purposes of subsection 52(1) of the Act, an enforced departure order is a circumstance in which the foreign national is exempt from the requirement to obtain an authorization in order to return to Canada.

(2) A foreign national who is issued a departure order must meet the requirements set out in paragraphs 240(1)(a) to (c) within 30 days after the order becomes enforceable, failing which the departure order becomes a deportation order.

If the foreign national leaves Canada within 30 days of the Departure Order becoming enforceable, then that order is enforced and the individual would not require ARC. However, after the 30 days have elapsed, the Departure Order becomes a Deportation Order.

Where the Deportation Order was a consequence of criminal inadmissibility, ARC is unlikely if the foreign national has not taken steps to address the criminality. The best option is to seek a record suspension if the conviction was in Canada or apply for rehabilitation if the conviction was overseas. To enter Canada without a record suspension or being approved for rehabilitation would require very compelling circumstances and must convince the Visa Office that there was no real possibility of being a danger to Canada or to Canadians. Alternatively, if a Departure Order has been converted to a Deportation Order, then the inquiry by the Visa Office focuses on why the foreign national did not leave Canada before that conversion occurred.

If entrance to Canada is urgently required, such that you cannot wait for a Visa Office to make this decision – and you do not need a visa to travel to Canada – it is possible to seek a “Temporary Residence Permit” (TRP) at the Port of Entry. This is an option of last-resort, as you may be turned back at the Port of Entry and be required to return to your home country, rather than be approved for entrance to Canada. We have seen TRPs be granted in these circumstances when there is a seriously ill family member in Canada or for another unique and short-term occasion. A TRP though is only a temporary measure to overcome inadmissibility or non-compliance with the Immigration and Refugee Protection Act, it does not overcome the need for an ARC. The admissibility or non-compliance which led to the Deportation Order is not overcome by a TRP, rather the foreign national is given a temporary reprieve from obtaining ARC.

For more information on Authorization to Return to Canada, please click here.