Section 52(1) of the Canadian Act Immigration and Refugee Protection Act provides that a person who has been removed from Canada cannot return to Canada unless they first receive specific authorization from immigration authorities. This authorization is known as an “Authorization to Return to Canada” (an “Authorization to Return to Canada”BOW“). The need for an ARC will depend on the type of deportation order the person received.
Types of removal orders
Removal orders may be issued by port of entry officers, domestic law enforcement officers and the Immigration Division of the Immigration and Refugee Board (the “IRB”). “).
There are three types of removal orders in Canada. These are the “Departure Order”, the “Exclusion Order” and the “Expulsion Order”.
A departure order requires a person to leave Canada within 30 days of the date the order becomes enforceable. Otherwise, the order of departure will become an order of expulsion. For example, a departure order could be issued in the case of a permanent resident who is not complying with their residency obligation or eligible asylum seekers who are awaiting a decision from the IRB.
An exclusion order states that the returned person cannot return to Canada for one year unless they obtain the ARC. For exclusion orders resulting from misrepresentations, the bar is five years. Examples of cases where an exclusion action could be taken include foreign nationals who arrive at a port of entry without the proper documentation, foreign nationals who do not leave Canada at the end of their authorized stay and work not authorized in Canada.
An expulsion order has the effect of permanently prohibiting a person from returning to Canada. Such a person can only return if he or she receives the ARC. Examples of where deportation action might be taken include crime and national security concerns.
A removal order is executed by the voluntary obedience of a foreign national to the removal order or by the removal of the foreign national by the Minister.
Authorizations to return to Canada
An ARC is not systematically granted. For Immigration, Refugees and Citizenship Canada (“IRCC“) power is limited to unit managers, program managers, etc. At the Canada Border Services Agency (“CBSA“) it is limited to administrators and the head of operations.
As noted by the Federal Court in Dir c. Canada (Citizenship and Immigration), 2019 CF 1547, individuals requesting an ARC must demonstrate that there are compelling reasons to consider an ARC, taking into account the circumstances that necessitated the issuance of the removal order. Applicants must also demonstrate that they pose minimal risk to Canadians and Canadian society.
Factors an immigration officer should consider include:
- The seriousness of the immigration violation that led to the removal.
- The applicant’s history of cooperation with IRCC. Pursuant to the decision of the Federal Court in Singh v. Canada (Immigration, Refugees and Citizenship)filing multiple applications to stay in Canada, such as humanitarian and compassionate applications as well as pre-removal risk assessments, should not be considered a negative element in terms of a history of cooperation with IRCC, nor as having imposed an unreasonable cost on Canada.
- If there are any previous immigration warrants.
- If the applicant has complied with the terms and conditions of the document issued by IRCC.
- Whether the applicant has paid the moving costs.
- Whether there are compelling or exceptional circumstances.
- Whether there are other options available to the applicant that would not require returning to Canada.
- Whether there are factors that make the applicant’s presence in Canada attractive (e.g., family ties, professional qualifications, economic contribution, temporary participation in an event).
- Whether there are children directly involved in the application whose best interests must be considered.
- Whether the applicant is financially self-sustaining.
- How long the applicant intends to stay in Canada.
- The question of whether Canada could benefit from this.
If a visa officer processing an application determines that an ARC is required, they will send a letter that looks like this:
ARC and the underlying inadmissibility
As shown in internal IRCC correspondence below, a CAR application must generally be accompanied by either a temporary resident permit or humanitarian considerations to resolve the underlying inadmissibility if a person is prohibited from entering the territory.
In Umlani v. Canada (Citizenship and Immigration)2008 CF 1373 Justice Russell suggested that where the grounds for inadmissibility are minor, the grounds for an ARC need not be particularly compelling. He wrote:
The applicant’s reason for wanting to return to Canada was unconvincing (tourism), but he was forced to apply for an IEC due to a harmless and unintentional error which, in my opinion, falls within the provisions of ” supervision” of the defendant’s own guidelines. . The officer makes it very clear in the decision that he undertook a weighing process and that it was not just “tourism” that motivated the decision. These were also the “failed refugee” factor (a clear error of facts) and the serious importation problem (incomprehensible based on the facts).
Likewise, in Zarazua Gutierrez v. Canada (Citizenship and Immigration)2010 CF 32Judge Pinard declared:
It is difficult for me to imagine a less serious violation of the Act than that committed by the plaintiff. It is true that the applicant did not leave Canada when the removal order became enforceable, before filing her PRRA application which, under a new regime, automatically imposed a stay on her departure order. However, until the date of this PRRA application, the applicant never received instructions from CIC and therefore never received a departure date. It was only after she withdrew her request on November 28, 2002 that the 30-day time limit was reinstated. Four days later, the applicant left Canada.
The DIA and the ARCs
In accordance with the decision of the Federal Court of Appeal in the case Momi c. Canada (Citizenship and Immigration)2019 CAF 163, the Immigration Appeal Division does not have jurisdiction to determine whether a CRA refusal was reasonable or procedurally fair. It can, however, determine whether there are sufficient humanitarian grounds to overcome a refusal by the CEI in the context of family reunification category applications.
Locker suspension
In Laroche c. Canada (Citizenship and Immigration)2022 CF 1017Madam Justice Elliott noted that section 2.3 of the Criminal Records Act, RSC 1985, c C-47 (“CRA”), states that a record suspension “eliminates any prohibition or obligation to which the applicant is, by reason of his conviction, subject under any federal law” “. Although a record suspension under the CRA does not apply retrospectively to expunge the conviction, it “functions as an expression of the fact that even if the conviction continues to exist, future consequences must be minimized.” » » the removal order is not valid and the requirement for an ARC is still valid. However, officers must consider the record suspension in their assessment of the applicant’s CED application because the record suspension is a critical piece of information.