A stay of removal is an order preventing the execution of an otherwise valid removal order until some other process under the law or in the Federal Court of Canada is concluded.

There are two types of stays of removal in immigration and refugee law:

* Statutory stays created by the Immigration and Refugee Protection Act and its Regulations

* Judicial/discretionary stays granted under the Federal Courts Act

A statutory stay is created by a provision of the 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘙𝘦𝘧𝘶𝘨𝘦𝘦 𝘗𝘳𝘰𝘵𝘦𝘤𝘵𝘪𝘰𝘯 𝘈𝘤𝘵 (𝘐𝘗𝘙𝘈) or its Regulations (𝘐𝘙𝘗𝘙)

The provision prevents the execution of an otherwise valid removal order until some other process under the IRPA or in the Federal Court is concluded.

They are automatic in nature (you do not have to apply for them, and they are non-discretionary (if you are described in the provision, you benefit from the stay; if you are not described, you cannot benefit from the stay).

𝗦𝘁𝗮𝘁𝘂𝘁𝗼𝗿𝘆 𝘀𝘁𝗮𝘆𝘀 𝗳𝗼𝗿 𝗹𝗶𝘁𝗶𝗴𝗮𝘁𝗶𝗼𝗻:

There are only two situations where pending litigation in the Federal Court triggers a statutory stay

– A stay of removal is in place pending the final determination of a judicial review of a Refugee Appeal Division (RAD) decision by the Federal Court, Federal Court of Appeal or Supreme Court of Canada. (𝘐𝘙𝘗𝘙), s.231(1)

There are exemptions, for example, there is no stay where the Applicant is inadmissible for serious criminality. An application for an extension of time extinguishes a statutory stay. 

The only other situation where pending litigation in the Federal Court triggers a statutory stay is for judicial review of a ‘Legacy’ RPD decision. A Legacy RPD claim is a refugee claim referred to the IRB before December 2012. Claimants with a PIF form are legacy claimants while claimants with a BOC are consistent. 

Since legacy RPDs are ineligible for RAD so refused applicants must seek recourse direct to the Federal Court.

There is no stay where an applicant is refused by the Refugee Protection Division (RPD) because their claim had ‘no credible basis’ or is ‘materially unfounded’ or where the claimant was only eligible to make a refugee claim because of an exception to the 𝘚𝘢𝘧𝘦 𝘛𝘩𝘪𝘳𝘥 𝘊𝘰𝘶𝘯𝘵𝘳𝘺 𝘈𝘤𝘵 (STCA). In situations where a claim was abandoned, withdrawn, cessated, or vacated, there is no statutory stay.

𝗙𝘂𝘀𝗶𝗼𝗻 𝗟𝗮𝘄 is a Toronto based law firm with experienced immigration attorney, excited to take you through the immigration documentation process to ensure it is as seamless as possible. Get it right this time!

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