Stay of Removal

A Stay of Removal is one of the most urgent and high-stakes legal remedies in Canadian immigration law. It is a Federal Court motion requesting the Court to temporarily prevent the Canada Border Services Agency (CBSA) from removing an individual from Canada while their underlying judicial review application or other immigration matter is being decided. This remedy is critical for individuals facing imminent removal—often within days or even hours. Stay motions require rapid preparation, precise legal drafting, and strong evidence demonstrating that removal would cause irreparable harm. Let's have a comprehensive, lawyer-level analysis of Stay of Removal applications, their legal framework, evidentiary requirements, procedural steps, and strategic considerations.

Removal actions by CBSA can occur after failed refugee claims, refusals of Pre-Removal Risk Assessment (PRRA), inadmissibility findings, loss of permanent residence status, criminality-based removal orders, or enforcement of departure/exclusion/deportation orders. CBSA may provide notice of removal, conduct removal interviews, seize travel documents, impose reporting conditions, or schedule an actual removal date. Once a removal date is set, legal options narrow dramatically. A Stay of Removal motion becomes the only effective remedy to prevent deportation until the Federal Court can determine whether the underlying immigration decision was lawful.

Purpose of a Stay of Removal

A stay motion seeks temporary relief. It does not determine the merits of the immigration case. Instead, it suspends CBSA’s ability to remove the individual until the Federal Court decides the underlying judicial review. Without a stay, the person will be removed—often rendering the judicial review moot. In many cases, removal may cause separation from family, loss of employment, medical harm, or exposure to danger in the home country.

A stay motion protects the applicant’s ability to meaningfully pursue judicial review by maintaining their presence in Canada.

Legal Test for Stay Motions – The Toth Framework

The Federal Court applies the tripartite test from RJR-MacDonald, adapted for immigration removals in Toth v. Canada:

1. There is a serious issue to be tried.
2. The applicant will suffer irreparable harm if removed.
3. The balance of convenience favours granting the stay.

All three elements must be satisfied. Officers, DOJ counsel, and the Court evaluate these elements strictly and objectively.

1. Serious Issue to Be Tried

This requirement examines whether the underlying judicial review raises legitimate, arguable questions. It does not require proving the case will win—only that the issues are not frivolous. Examples of valid “serious issues” include:

• procedural fairness violations in IRCC or IRB decisions,
• failure to consider evidence,
• errors in credibility assessment,
• incorrect legal interpretation,
• misapplication of statutory provisions,
• unreasonable refugee refusals,
• unlawful PRRA decisions,
• erroneous risk assessment.

Counsel must identify precise legal errors within the Certified Tribunal Record (CTR) and explain why they warrant review.

2. Irreparable Harm

This is the most difficult and most critical component of a stay motion. Irreparable harm is harm that:

• cannot be corrected later,
• cannot be compensated financially,
• cannot be reversed by a future court decision.

Examples include:

• Risk to life, liberty, or security if returned to the home country.
• Family separation including leaving Canadian citizen children or spouses behind.
• Loss of access to medical care in the home country.
• Loss of employment or livelihood.
• Inability to pursue judicial review effectively from abroad.
• Disruption of ongoing legal processes, sponsorships, PR applications, or refugee claims.
• Exposure to persecution, torture, or violence.

A lawyer must provide strong affidavit evidence, expert reports (if available), medical documents, letters from family, and country condition evidence to demonstrate harm.

3. Balance of Convenience

The Court weighs:

• harm to the applicant if removed,
• harm to the state if the stay is granted.

Canada’s interest in enforcing removal orders is acknowledged, but if harm to the applicant is more severe, the Court will favour granting the stay.

Procedural Requirements and Timelines

Stay motions follow strict timelines. When an applicant receives a removal date:

• counsel must file a Notice of Application for Judicial Review,
• file a stay motion,
• prepare motion records urgently,
• prepare and commission affidavits,
• prepare a memorandum of argument,
• serve DOJ counsel,
• schedule the hearing quickly.

Motions are typically heard within days—sometimes within 24–48 hours.

Key Components of the Stay Motion Record

A complete stay motion contains:

• Notice of Motion
• Applicant’s Affidavit
• Exhibits (medical records, removal letters, country evidence, etc.)
• Memorandum of Fact and Law
• Draft Order

The Applicant’s Affidavit

The affidavit is the backbone of the stay motion. It must address:

• personal history,
• immigration history,
• details of the refusal being challenged,
• timeline of events leading to removal,
• irreparable harm if removed,
• family circumstances,
• medical issues,
• employment details,
• risk upon return.

Affidavits must be consistent, detailed, and supported by documentation.

Memorandum of Argument

The memorandum outlines:

• legal issues in the underlying judicial review,
• evidence of irreparable harm,
• balancing of convenience,
• case law supporting the stay.

Strong legal writing is essential.

Common Scenarios Requiring Stay of Removal

1. Failed Refugee Claims

Individuals with negative Refugee Protection Division (RPD) or Refugee Appeal Division (RAD) decisions often face quick enforcement. Removal may place them at serious risk, and PRRA eligibility may be limited if too little time has passed since the refugee claim.

2. PRRA Refusals

CBSA typically schedules removal shortly after PRRA refusal. Judicial review and a stay motion are often the only avenues of relief.

3. Inadmissibility Cases

Removal may occur due to:

• criminal inadmissibility,
• medical inadmissibility,
• misrepresentation,
• financial inadmissibility,
• security issues.

Some inadmissibility decisions are reviewable, and stays may be granted pending judicial review.

4. Humanitarian and Compassionate Refusals

Applicants with strong establishment, Canadian children, or hardship grounds often require stays to prevent family separation.

5. Sponsorship or PR Application Refusals

PR applicants with removal orders may require protection until judicial review outcomes are known.

6. Criminality-Based Removals

Stays are more difficult in criminal cases but still possible, particularly when:

• rehabilitation exists,
• family hardship is severe,
• risk in the home country is high.

Country Condition Evidence

Country evidence is essential when harm abroad is alleged. Evidence may include:

• UNHCR reports,
• government advisories,
• expert affidavits,
• news reports,
• NGO documentation.

Counsel must ensure evidence is up to date and directly relevant.

CBSA Enforcement and Removal Logistics

Understanding CBSA procedures is critical:

• CBSA may detain individuals shortly before removal,
• remove applicants on short notice,
• require the individual to report weekly or monthly,
• issue one-way tickets,
• obtain travel documents from foreign consulates.

The stay motion temporarily halts all removal actions.

What Happens If the Stay Is Granted?

If the Federal Court grants the stay:

• CBSA must immediately cancel the removal,
• the applicant remains in Canada legally,
• the underlying judicial review proceeds,
• the applicant may apply for work or study permits (if otherwise eligible),
• migration officers must not attempt enforcement during the stay.

What Happens If the Stay Is Denied?

If the stay is denied:

• CBSA may remove the individual within days,
• judicial review may be rendered moot,
• family separation may occur,
• risk upon return becomes immediate.

Denials often result from insufficient evidence of harm.

Strategic Considerations in Stay Motions

Experienced lawyers consider:

• timing (filing early improves chances),
• strength of underlying judicial review,
• whether reapplication is viable,
• whether PRRA or H&C options exist,
• whether detention will occur,
• family involvement and hardship evidence.

Strategy depends on the individual’s full immigration history.

Importance of Skilled Counsel

Stay motions require:

• rapid filing,
• persuasive affidavits,
• clear legal argument,
• detailed evidence organization,
• experience with Federal Court advocacy,
• precise understanding of immigration law.

The success of a stay is often determined by the quality of the affidavit and legal submissions, not simply by the urgency of removal. Skilled representation is essential to prevent irreversible harm.

Stay of Removal motions are among the most critical tools to protect individuals facing deportation. They ensure that the judicial review process remains meaningful, and they safeguard the fundamental rights of applicants whose lives, families, or safety may be jeopardized by removal.