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 a powerful enforcement mechanism that CBSA uses to protect the integrity of the immigration system, especially to those who come to this country lawfully.
With such powerful enforcement mechanisms in place, individuals have the right to due process through various levels of appeal and judicial review before a removal order becomes effective or can be enforced.
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 violate the IRPA.
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, a officer may prepare and 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 (ID), if the alleged breach is of a more serious or complicated nature.
Local and regional CBSA staff, including immigration enforcement officers, hearings officers and delegates of the Minister (usually local CBSA managers, supervisors or officers), are involved in the investigation and admissibility hearing process. Members of the ID of the Immigration and Refugee Board (IRB) conduct admissibility hearings. The IRB is independent of the CBSA and its members are trained in immigration law. If a removal order is issued, it may be appealed to the Immigration and Appeals Division (IAD) of the IRB.
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 written removal order requiring the person to leave the country.
When a more complicated breach of IRPA is alleged, the Minister’s delegate reviews the investigation report and refers the matter to the ID for an admissibility hearing.
Admissibility hearings are similar to court hearings and are generally open to the public. However, they are held in private in some instances, such as in the case of 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 ID presides over the admissibility hearing and listens to evidence presented by an officer representing the Minister, the person who is the subject of the hearing has the right to retain counsel, and his or her legal representative will defend the allegations and make submissions before the member and challenge the evidence presented by the Minister. Unlike a court hearing, however, there is no jury and there are fewer restrictions on the admissibility of evidence. At the end of the admissibility hearing, the presiding 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 on the same.
If the person is determined to be inadmissible to Canada, a removal order requiring the person to leave the country will be issued. The presiding member may also decide if the person should be placed under detention, or if already in detention, what if any conditions should be imposed upon release.
Pre-removal Risk Assessment
IRPA provides a formal structured process for reviewing risk before a person is removed. An individual in most cases is entitled to 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. PRRA’s will be conducted by officers of Citizenship and Immigration Canada (CIC). If you are under a removal order and you fear for your safety if returned to your country, please contact us for a comprehensive review of your circumstances.
Removal From Canada
There are three types of removal orders under IRPA 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
If either an officer or a member of the ID determines that a person has breached IRPA, he or she may issue one of the following removal orders:
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.
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.
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 you not leave Canada as required or if you leave Canada without confirming the departure with the CBSA prior to leaving. Departure and exclusion orders are generally 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.