Enforcement

Port-of-Entry Examination

When you arrive in Canada, you will pass through a “port-of-entry” (POE), which may be at a land border or an airport (and even by sea). Here you will be examined by a Border Service Officer, who will verify your identity and confirm other details to ensure you meet the requirements to enter Canada. Depending on your status and the purpose of your visit, you may be sent to “secondary inspection”. This can happen to verify information or if your case requires the issuance of documents, for example, if you are entering Canada to obtain permanent residence, a study permit, or work permit. In cases where you have received approval of your application from a visa office, obtaining your documents at the POE should be a mere formality. In other cases, you may be applying for a study or work permit at the POE, if permitted by the regulations.  You may be asked questions about whether there have been any changes in circumstances since your application (for example, a change in marital status), and about your intentions in Canada. Your answers should not contradict what was stated on your application or indicate an intent to violate regulations. Applicants sometimes do this inadvertently, either because they are not familiar with immigration laws, or because they find themselves in a stressful situation and become overwhelmed. Note that even visitors who are visiting on an eTA or temporary resident visa may be sent to secondary inspection and denied entry to Canada if the officer suspects you will not leave by the end of your authorized stay or otherwise violate Canada’s immigration laws. You should be prepared to answer questions properly and be aware of your obligations while in Canada. 

You should also note that Border Services Officers have fairly wide powers and you have less legal rights to privacy at a POE than inside Canada.  Your laptop, cell phone and other devices can be seized and inspected, and you can be requested to provide a password to your device(s).  If you are concerned about your rights and obligations when entering Canada, you should consult with us before you travel.

Denial of Entry

Not everyone has a right to enter Canada.  Citizens and permanent residents who have complied with the law have a right to enter, but temporary residents must satisfy a Border Services Officer (BSO) that they have a valid purpose in Canada and will comply with the regulations.  For example, if a BSO suspects you will work in Canada without a permit, or stay in Canada beyond the validity of your status, s/he can deny entry, and you will be required to leave Canada immediately.  If you have been denied entry and wish to attempt to re-enter Canada, it is essential to obtain proper legal advice and guidance.  

Without Legal Status in Canada

There are thousands of people in Canada without legal status who have stayed beyond the validity of their visa, stayed after a refused refugee claim, or entered Canada illegally. If you believe that you have a compelling reason to stay in Canada despite your lack of status, contact us so that we can advise you regarding your status and your chances of regularizing it.

Overstay – Out of Status

If you are a foreign national who is in Canada on a work permit, study permit, or as a visitor, and you remain beyond the validity of your permit (or for visitors usually 6 months, or as stated on your passport or Visitor Record) you are considered to be out of status. A person without status in Canada is at risk of removal. To avoid this, you can either leave Canada or, if your status expired in the last 90 days, apply for restoration of status. It is recommended that you always comply with the conditions of your stay; the fact that you overstayed in Canada will appear on your immigration file and may negatively affect future applications. If this happens to you, you should consult us to assess options.

Obviously, to avoid overstaying, you should apply for an extension of your status in Canada before the expiry of your current status.  In some situations, you may also request to change your status, for example switching from student to visitor. During the processing of your extension application, you will remain in status even though your official status has expired.  This is called “implied status” and it is also subject to certain conditions.  If your application for an extension is ultimately refused, you will be considered out of status as of the date of the refusal letter. 

Some people end up staying in Canada without status for a very long time for a variety of reasons.  People in this situation find it extremely stressful and there is a constant fear of deportation; at the same time, they feel stuck and are too afraid to face the issue. Immigration laws of Canada can be forgiving of these situations in certain circumstances, and it is essential to obtain legal advice. If you are in this situation, we can advise you on whether an application for permanent residence on Humanitarian and Compassionate grounds could be the solution for you. 

Removal from Canada

A removal order may be issued to a permanent resident or foreign national who is in Canada and is found to be inadmissible. This could be the result of a refused application, a criminal offence, overstaying in Canada, or other breaches. Often removal orders are not immediately enforceable, for example when there is a right of appeal, and if an appeal is made, until its final determination. It is also possible that the removal order is “stayed”, meaning it is temporary delayed and unenforceable. This may happen if there are judicial proceedings involving the applicant, if there is a refugee claim or Pre-Removal Risk Assessment (where the applicant seeks protection), if there are sufficient humanitarian and compassionate grounds, or for other statutory or regulatory bases. Delays may also occur if the necessary travel documents cannot be obtained, or if a person’s identity cannot be established. 

There are three types of removal order:

• • • • • • • Departure Order: you must leave Canada within 30 days and confirm your departure with CBSA.
            • Exclusion Order: you must leave Canada and cannot return for 1 year (or 5 years in the case of misrepresentation).
            • Deportation order: you must leave Canada and are permanently barred.

With a departure order, you must register your departure or else it will turn into a deportation order after 30 days. If you wish to return to Canada after removal by a deportation order, or removal by an exclusion order before the passage of one year, you must apply for an Authorization to Return (ARC). If the government of Canada paid for your removal, you will also be expected to repay that amount. 

If you are subject to a removal order, we encourage you to contact us immediately to explore all your immediate options and formulate a strategy for the future. 

Detention Review

If the Canada Border Services Agency (CBSA) believes that you do not have the legal right to enter or remain in Canada, whether as a permanent resident or foreign national, you may be detained. This also can happen if your identity cannot be established, if you are deemed unlikely to appear for a scheduled interview, if you are being investigated for security reasons, or if you may be a danger to the public. Under normal circumstances, the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) will review the reasons for your detention within 48 hours at a formal hearing. During the Detention Review, you will be given an opportunity to make the case for your release, and witnesses may provide testimony, if available. It is recommended that you hire an immigration lawyer to assist you with this matter to better negotiate your release and address the factors at play. For instance, you may agree to abide to certain conditions, such as reporting to CBSA on certain days, and living with a specific person. In addition, a cash or performance bond by a “bondsperson” may be required, whereby money is deposited to the government to guarantee your compliance.  Such a bond will only be returned if you abide by your conditions. 

If the ID determines that you should be detained, the next detention review will take place within 7 days, and if you are not released at that time, every 30 days after that. (Different timelines apply for Designated Foreign Nationals, or “irregular arrivals”). If you are released and breach your conditions, you will likely be detained again. You may request that the conditions be changed after some time, depending on the circumstances. With many years of experience in immigration, we can discuss with you your rights and obligations, and ensure your case has the best possible outcome.