What if an applicant is not entitled to an automatic stay of removal?
An applicant can ask the Federal Court to order a stay of removal from Canada. To request a stay, the applicant must have been given a date for removal and been refused a deferral of removal by Canada Border Services Agency. At that point, the applicant may need to request a stay very quickly. Sometimes the Court will hear the request by telephone on the date set for removal.
The two most important questions the Court will consider in deciding whether to order a stay are these:
- Has the applicant raised a serious issue in their application for leave or judicial review?
- Would the applicant suffer ‘irreparable harm’ if the stay of removal is not granted?
To show irreparable harm, an applicant should give the Court information about how their removal would have an extremely harmful impact. Examples might include:
- risk to life or health
- harm to the best interests of a child
- family separation
- disruption of schooling