Immigration Violations

The CBSA investigates immigration violations and removes persons who do not have a right to enter or stay in Canada. The ability to remove people is vital to the integrity of the immigration system, and to those who come to this country lawfully. 

All individuals have the right to due process (the various levels of appeal and judicial review) before a removal order becomes effective or can be enforced. However, once individuals have exhausted all avenues available to them, they are expected to obey Canadian law.

• Investigations
• Admissibility hearings
• Pre-removal Risk Assessment
• Removals
• Appealing a removal order

Immigration Investigations

CBSA officers across Canada investigate people who may have breached the Immigration and Refugee Protection Act (IRPA). They work closely with the RCMP, local police and other agencies and, when necessary, can arrest, detain and remove people who breached the Act.

Investigations can begin with police reports, tips from the public, or the person's own admission. If there is sufficient evidence of a breach having been committed, the officer may submit a report to the Minister's delegate. The person under investigation may then face an administrative process for less complicated breaches, or an admissibility hearing presided over by a member of the Immigration Division, if the breach is more complicated.

For less complicated breaches (for example, when a visitor has remained in Canada longer than authorized), the Minister's delegate decides whether or not a breach has occurred and, if necessary, issues a removal order requiring the person to leave the country.

Admissibility hearings

When a more complicated breach of IRPA is alleged, the Minister's delegate reviews the investigation report and refers the matter to the Immigration Division for an admissibility hearing.

Admissibility hearings are similar to court hearings and are generally open to the public. However, they are held in private if they concern refugee protection claimants or if the Division determines that there is:

• danger to a person's life (for example, a person may be testifying in a case involving organized crime);
• a serious possibility that the fairness of the admissibility hearing would be jeopardized (for example, a woman may be reluctant to testify against her husband if the admissibility hearing is held in public); or
• a risk that information involving public security might be disclosed (for example, the admissibility hearing concerns a person who is inadmissible on security grounds).

Like a judge, a member of the Immigration Division presides over the admissibility hearing and listens to evidence presented by an officer representing the Minister, the person in question and his or her representative, if there is one. Unlike a court hearing, however, there is no jury and there are fewer restrictions on evidence. At the end of the admissibility hearing, the member decides if the person is admissible. If the person is admissible, he or she is allowed to enter or remain in Canada. The member may set conditions.

If the person is inadmissible to Canada, a removal order that requires the person to leave the country is issued. The member can also decide if the person should be placed under detention or if conditions should be imposed upon release.

For detailed information on the procedures for admissibility hearings, please refer to Citizenship and Immigration Canada’s Enforcement Manual’s Admissibility Hearings and Detection Review Proceedings (PDF).

Pre-removal Risk Assessment

IRPA provides a formal structured process for reviewing risk before a person is removed. The person can apply to the Minister of Citizenship and Immigration for a pre-removal risk assessment (PRRA), which determines if the person would be at risk (i.e., torture, cruel and unusual punishment) if returned to his or her country of nationality.

PRRAs are conducted by Citizenship and Immigration Canada.

For detailed information on the procedures for PRRA, refer to CIC Protected Persons Manual’s Pre-removal Risk Assessment (PDF). 

Removals

Removing individuals who do not have a right to enter or stay in Canada is essential to maintaining the integrity of our immigration program and to ensuring fairness for those who come to this country lawfully. There are three types of removal orders and each has different consequences.

A removal order can be appealed in certain situations. People cannot be removed from Canada if they have appealed a removal order and the appeal has not been decided, if they are involved in another legal proceeding, or if they have been found to be people in need of protection.

• Types of removal orders
• Carrying out a removal
• Reasons for delay

Types of removal orders

If either an officer or a member of the IRB’s Immigration Division determines that a person has breached IRPA, he or she may issue one of the following removal orders:

Departure order
A departure order requires the person to leave Canada within 30 days after the order becomes enforceable and to confirm the departure with the CBSA.

Exclusion order
A person who has been removed as a result of an exclusion order cannot return to Canada for one year without the written permission of an officer. However, people who are issued exclusion orders for misrepresentation cannot return for two years without written authorization from an officer.

Deportation order
A person who has been removed as the result of a deportation order is permanently barred from returning to Canada. Such people may never return unless they receive written permission from an officer.

A departure order automatically becomes a deportation order when someone who has been issued a departure order does not leave Canada as required or leaves Canada without confirming the departure with the CBSA.

Departure and exclusion orders are usually issued for less serious violations.

If a person files a claim for refugee protection and is issued a removal order, that removal order does not come into force until the claim has been decided. If the claim for protection is accepted, the removal order is cancelled. Unsuccessful claimants who had conditional departure orders issued against them must leave within 30 days of the final determination of the claim.

In all cases, the individuals and their representatives are informed of the reasons for the removal and are given a copy of the order. Family members in Canada who are dependants of these people may be included in the removal order provided they are not Canadian citizens or permanent residents 19 years of age or over.

Carrying out a removal

Once a removal order has been issued, the CBSA carries out the removal as soon as possible. The CBSA can assign an escort, if there is concern that the person in question will not obey the removal order. If the individual is considered very dangerous or a threat to the health or safety of other travellers, the RCMP or a medical officer may assist the CBSA in escorting the person out of the country.

Removals: Reasons for delays

Sometimes, there are delays between the issuance of a removal order and the time the person actually leaves. The reasons for this can include the following:

• Appeals and legal proceedings
  The person has appealed the removal order or may be involved in other legal proceedings, such as a criminal trial.
  
• Claims for protection
  The person claims to be a person in need of protection and the case has not been heard or decided.
  
• Travel documents
  The CBSA may have difficulty obtaining passports or visas to permit the person to enter another country.
  
• Identity
  The person's identity or citizenship cannot be confirmed.
  
• Failure to appear
  The person does not appear for removal at the proper time or location, and the CBSA must issue an immigration arrest warrant.
  
• Temporary suspension of removals
  Dangerous conditions exist that make it impossible to return the person to the country of origin safely.

Appealing a removal order

As part of the enforcement of IRPA,  the CBSA can refuse to admit people into Canada or may, in some cases, order them removed from the country. In some cases, the Immigration Division of the IRB can order people removed as a result of an admissibility hearing. However, certain people can appeal these decisions.

• Who can appeal
• Loss of right of appeal
• Reasons for an appeal
• Who hears the appeal
• Results of an appeal
• Review by the Federal Court

Some foreign nationals with permanent resident visas, permanent residents and protected persons, who have had removal orders issued against them at an examination or admissibility hearing, can appeal to the IRB's Immigration Appeal Division (IAD.)

An appeal can be launched by the person who was ordered removed or by the CBSA on behalf of the Minister of Public Safety. The IAD can stay removal orders.

The IAD of the IRB hears appeals. If the appeal is rejected, the person can ask the Federal Court Trial Division to review the IAD's decision. The Minister of Public Safety can also request a review.

Who can appeal to the Immigration Appeal Division

IRPA allows certain people to appeal removal orders made by officers or a member of the Immigration Division at an admissibility hearing. In general, people who can appeal a removal order are one of the following:

• Permanent residents
  People who were granted permission to enter and remain in Canada.
  
• Permanent resident visa holders
  Foreign nationals who hold permanent resident visas and are denied entry at a port of entry upon first arriving in Canada.
  
• Protected persons
  Persons who were found to be in need of Canada's protection.

Normally, people will not be removed from Canada until their appeal has been decided. However, if for some reason they have already been removed from Canada, they may be permitted to return to attend their appeal hearing.

Loss of right of appeal

In certain situations, foreign nationals, permanent residents and protected persons do not have a right to appeal. These people lose their appeal rights if a member of the Immigration Division determines that they are inadmissible because they:

• are security threats or war criminals;
• have violated human or international rights;
• have received a sentence of at least two years for criminal activity;
• are, or have been, involved in organized crime; or
• have misrepresented themselves, except in cases where the person is the sponsor's spouse, common-law partner or child.

Reasons for an appeal

People can appeal a removal order, if they believe that the officer or the Immigration Division made a legal error, or if they believe that they should not be removed from Canada on humanitarian or compassionate grounds.

The Minister of Public Safety may appeal an Immigration Division's decision only on the basis of a legal error.

Who hears the appeal

Members of the IAD hear appeals. Hearings officers represent the Minister at appeal hearings. The hearings are held in public and operate much like a regular court. However, rules of evidence are more flexible and the IAD can consider any evidence it believes credible and trustworthy. When making a decision, its members consider questions of law and fact and, in some situations, humanitarian and compassionate concerns.

Results of an appeal

The IAD can take one of three actions following an appeal hearing.

Dismiss the appeal: The appeal is rejected and the removal order is confirmed.

Allow the appeal: The appeal is successful and the removal order is cancelled.

Stay the appeal: The IAD can "stay" (postpone) the removal order for a certain period.

The IAD will impose the following conditions. The person must:

• inform the CBSA and the IAD in writing of any change of address;
• provide a copy of the passport or travel document (if he or she does not have a proper travel document or it has become invalid, he or she will have to apply for or extend  his/her travel document or passport);
• not commit any criminal offences;
• report immediately in writing to the CBSA if charged with or convicted of a criminal offence; and
• act in accordance with all other conditions imposed by an Immigration Division member.

If, at the end of that period, the person has obeyed these conditions, the IAD may cancel the removal order. If the conditions have not been met, the CBSA can apply to have the stay lifted and then carry out the removal.

Review by the Federal Court

Both the person in question and the Minister of Citizenship and Immigration can apply to the Federal Court of Canada for a review of an IAD decision. However, they must first obtain the leave (permission) of the Court to make the request. If the Federal Court grants permission, it will then review the request and either dismiss it or set aside the IAD's original decision and order a new appeal hearing.