May 23, 2017

I Withdrew My Refugee Claim & Left Canada: Why Do I Have a Deportation Order?

This is a very common question and I have seen hundreds of people in this situation in my career.  The good news is it is avoidable.  The bad news is it is very difficult to know when this happens.  Let me explain.

When refugee claimants initiate a claim for protection they are issued a Departure Order and pursuant to section 49(2)(d) of the Immigration and Refugee Protection Act, (IRPA) this order will automatically become a deportation order 15 days after a claim is withdrawn if the claimant has not left the country.  This occurs without any further notice to claimants by what is referred to as “by operation of law”. Unfortunately, many individuals find themselves in this position as they do not realize the clock is ticking. In fact, many claimants in my experience believe they are abiding by all requirements including those that are diligently complying with their conditions to report to the Canada Border Services Agency (CBSA).

To this extent and in fairness to claimants, the “Departure Order” issued does not explicitly set out the requirement to leave Canada within 15 days of withdrawal of a refugee claim. Rather, the Order reads:

This order will be deemed to be a deportation order where no certificate of departure is issued within the applicable time period specified in the immigration regulations.

Documentation issued as part of the withdrawal similarly does not note the requirement to depart within 15 days. Most claimants do not benefit from the assistance of counsel at the time of withdrawal. So, the timelines in the Regulations are not reasonably known to an unrepresented refugee claimant and some would argue properly communicated.

So, despite a claimant leaving soon after withdrawing, but not within 15 days, a deportation order is made and the claimant is inadmissible to Canada.  These individuals will require an Authority to Return to Canada (ARC) in order to re-enter Canada, as per section 52(1) of the IRPA and section 226 of the Immigration and Refugee Protection Regulations (IRPR).

 I have reviewed cases after the fact where a claimant has taken no additional steps to extend a stay in Canada or use additional Canadian administrative and/or judicial resources, attend removal interviews, have their passport returned to them by the CBSA, purchase their own ticket to return and fully cooperate with the CBSA, and yet this all has no bearing on the departure order becoming a deportation order.  It is simply a function of time and CBSA officers have no discretion.   These factors do however weigh heavily in claimants favour in seeking an ARC.

Therefore, the timing of withdrawing a refugee claim is critical and advance planning is required to attempt to avoid a deportation order. In fact, efforts to comply with authorities, including purchasing an airline ticket in advance of removal meetings is often advisable if timing is very tight. Naiveté regarding the requirements of the IRPA; and a lack of understanding of the requirements of a departure order converting to a deportation order is far too common.  It would be very helpful if both Immigration, Refugees, & Citizenship Canada (IRCC) and CBSA would provide clearer messaging to claimants at the time of a refugee claim and at the time of removal to avoid this far too common but serious consequence.

For more information on Removal Orders, please click here.