Removal orders may still apply

July 4th, 2005

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By Guidy Mamann

Minister Joe Volpe's announcement of Feb. 18 did not mean that all out-of-status foreigners who are physically in Canada should have their spousal sponsorship applications processed from within Canada.

First, not everyone is eligible for this type of processing.

It now seems that anyone who has received a removal order where the cited grounds are anything other than overstaying their status will be refused under this program. That would include people who received a removal order for such grounds — i.e. misrepresentation, etc. Failed refugee claimants who received removal orders solely for not being in possession of valid travel documents upon arrival in Canada might still qualify. Since our immigration laws prohibit simultaneous sponsorships, those who have a pending overseas application will be required to drop it prior to consideration under this policy.

Second, even if an applicant is eligible to be approved for this processing, they should still ensure that they will qualify for an "administrative deferral of removal" should the Canadian Border Services Agency (CBSA) seek to remove them from Canada prior to the finalization of their application.

Individuals who can still be removed during this process include those who:

  • Are inadmissible to Canada on grounds related to security, human or international rights violations, serious criminality, or organized criminality;
  • Made refugee claims but who were excluded by virtue of Article 1 (F) of the Geneva Convention;
  • Had charges laid against them whether or not those charges were later dropped by the Crown;
  • Already benefited from an administrative deferral of removal emanating from a humanitarian and compassionate application (H&C) that was sponsored by their spouse; Have an outstanding warrant for removal;
  • Have previously hindered or delayed removal;
  • Have been previously deported from Canada but who returned without first obtaining permission to return to Canada; or
  • Are deemed "removal ready" by the CBSA.
  • Most foreigners who face removal from Canada are eligible to apply for a Pre-Removal Risk Assessment (PRRA). CBSA can only issue notice of such a right to apply once a person is "removal-ready". Those who have a pending inland sponsorship application at the time that they are served with a PRRA notice and who apply for the PRRA will get to remain in Canada until the PRRA is decided and a first-stage decision is made on the sponsorsh ip application.

    Those who have an outstanding sponsorship application but who are ineligible or fail to apply for a PRRA get a 60-day administrative deferral of removal. The 60-day period is counted from the day CBSA advises the applicant of his/her removal arrangements or from the day the PRRA is waived. CIC has "agreed to expedite these cases and pull them out of the queue to render a [preliminary] decision." If the decision is unfavourable, or if CIC fails to render a decision within the 60 days, removal will take place as planned.

    Those who have been served with a PRRA notice prior to filing a sponsorship application or spousal H&C will not benefit from a deferral of removal under this new policy.

    Clearly, inland applications for out-of-status spouses still demands careful consideration.