A stay of removal is an emergency court order that temporarily prevents a person from being removed from Canada while a legal challenge is ongoing before the Federal Court.
Stay motions are urgent proceedings that often arise on very short notice, sometimes only days or hours before a scheduled removal. These cases require immediate legal assessment, preparation of evidence, and compliance with strict Federal Court procedures and timelines.
Gerami Law PC represents clients facing imminent removal from Canada and assists with urgent stay of removal motions before the Federal Court.
What Is a Stay of Removal?
Filing an application for leave and judicial review does not always automatically stop removal from Canada.
In many cases, a separate motion requesting a stay of removal must be brought before the Federal Court to temporarily suspend enforcement of the removal order while the Court considers the underlying legal challenge.
The Federal Court and immigration authorities recognize that a stay of removal is an exceptional remedy requiring urgent judicial intervention.
The Legal Test for a Stay Motion
To obtain a stay of removal, the applicant generally must satisfy a three-part legal test:
- there is a serious issue to be determined;
- the applicant would suffer irreparable harm if removed; and
- the balance of convenience favours granting the stay.
Canadian courts have repeatedly applied this framework in immigration stay motions.
Stay motions are highly evidence-driven proceedings. The Federal Court will closely examine the specific facts, supporting evidence, urgency of the matter, and the nature of the alleged harm.
Urgent and Time-Sensitive Proceedings
Stay motions often proceed on an expedited basis where removal is imminent.
These matters may involve:
- urgent preparation of affidavits and evidence;
- obtaining medical, psychological, or country-condition evidence;
- preparation of legal memoranda;
- coordination with the Department of Justice;
- emergency scheduling before the Federal Court; and
- extensive preparation within very limited timelines.
The Federal Court has issued specific practice guidelines for urgent immigration stay motions because of the time-sensitive nature of these proceedings.
Evidence in Stay Motions
The success of a stay motion often depends on the quality and credibility of the evidence presented.
Depending on the circumstances, evidence may include:
- risk-related evidence;
- medical or psychological reports;
- evidence regarding children affected by removal;
- country-condition documentation;
- evidence of humanitarian hardship;
- evidence connected to pending immigration applications; and
- evidence addressing procedural fairness or legal errors in the underlying decision.
The Court generally requires clear and persuasive evidence demonstrating that the harm goes beyond the ordinary consequences of removal from Canada.
Deferral Requests and Stay Motions
In some situations, a request may first be made to the Canada Border Services Agency (“CBSA”) asking that removal be deferred.
If a deferral request is refused, it may be possible to challenge that refusal before the Federal Court and seek a stay of removal pending judicial review.
Strategic assessment is important because removal-related litigation may involve multiple overlapping legal proceedings and strict timelines.
Refugee and Immigration Contexts
Stay motions may arise in many different immigration contexts, including:
- refused refugee claims;
- PRRA refusals;
- refused humanitarian and compassionate applications;
- inadmissibility proceedings;
- sponsorship-related removals;
- criminality-related removals;
- cessation or vacation matters;
- refused deferral requests; and
- other immigration enforcement proceedings.
The legal and evidentiary strategy can differ significantly depending on the type of underlying immigration matter and the urgency of the removal.
How We Can Help
Gerami Law PC assists clients with:
- urgent stay of removal motions before the Federal Court;
- preparation of affidavits and supporting evidence;
- emergency Federal Court filings;
- review of removal-related decisions and procedural fairness issues;
- strategic advice regarding deferral requests and related remedies;
- judicial review proceedings connected to removal matters; and
- complex refugee and immigration litigation involving imminent removal from Canada.
Stay motions are emergency proceedings involving strict timelines and significant legal consequences. Immediate legal advice is strongly recommended where a removal date has been scheduled or where CBSA has initiated enforcement action.