This is the most time-sensitive process in Candian immigration law. Once CBSA issues a direction to report, the remedies are measured in days, sometimes hours. Delay is itself a reason courts refuse relief. If you have a removal date, contact a lawyer today.
If the Canada Border Services Agency has given you a direction to report — a document setting a date and place for your departure — there are two distinct legal steps available. They are frequently confused, and they happen in order.
A deferral request asks the CBSA removals officer to postpone your removal. A stay of removal asks the Federal Court of Canada to halt it. You normally have to attempt the first before the second is available.
Who this applies to:
Anyone subject to an enforceable removal order (including deportation order) who has received a direction to report, including failed refugee claimants, people whose status expired and was not restored, and people found inadmissible.
Permanent residents are in a different position: a removal order against a permanent resident may carry a right of appeal to the Immigration Appeal Division, which most foreign nationals do not have. If you are a permanent resident, that route should be assessed first.
First: check whether your removal is already postponed by law:
Some removals are automatically stayed by Candians immigration rules. These include, among others, periods while an application for leave and judicial review of a Refugee Appeal Division decision is pending where leave has been granted, while certain appeals are before the Immigration Appeal Division, and while a pre-removal risk assessment is pending after being accepted for processing.
If a statutory stay applies, CBSA must postpone removal. Even so, confirm it with CBSA in writing and keep the documentation. Enforcement occasionally proceeds against people who are in fact covered.
And even after you confirmed with the CBSA, it is still better to double-check if you are not removable with an immigration lawyer.
Second: the deferral request to CBSA
A deferral request is a written submission to the removals officer asking that removal be postponed.
Be realistic about the scope of this remedy. The Federal Court of Appeal has held that an enforcement officer’s discretion to defer is limited, and that deferral should be reserved for situations where failing to defer would expose the person to a risk of death, extreme sanction or inhumane treatment — particularly where postponing would allow a pending application to become meaningful rather than moot. Officers do have some latitude over the practical timing of removal, but they are bound to enforce a valid order.
Grounds that are argued in practice include:
- New or changed risk in the destination country
- A pending application that will be rendered pointless by removal
- The best interests of a child directly affected
- Medical circumstances, including fitness to travel
- Practical impediments — travel documents, an unaccompanied child, a school year mid-term
Submit it in writing, with evidence attached, as early as possible. A deferral request filed close to the removal date is weaker for that reason alone. In one reported case the applicants knew their removal date for more than two weeks before requesting deferral, and the Court held it against them.
Third: the stay motion in Federal Court
If deferral is refused — or the officer does not answer — you can file an application for leave and judicial review of that refusal, together with an emergency motion to stay the removal until the Court decides (not every stay is an emergency stay, but they often happen very fast)
To grant a stay, the Court applies the tripartite test from Toth v. Canada (Minister of Employment and Immigration), read alongside the Supreme Court’s decision in RJR-MacDonald. All three branches must be met:
- A serious issue to be tried. Ordinarily a low threshold — the argument need only be neither frivolous nor vexatious. Where you are challenging the refusal of a deferral, the threshold rises: because a stay would effectively give you the very relief sought, the Court looks for a likelihood of success.
- Irreparable harm. The harm must go beyond what deportation inherently involves — separation, disruption and financial loss are the ordinary consequences of removal and are not, on their own, enough. It must be specific, credible and supported by evidence rather than speculation. Harm that has been accepted includes removal rendering a pending court application moot.
- The balance of convenience. Whether the harm to you outweighs the public interest in enforcing removal orders.
A stay is an extraordinary equitable remedy. It is granted, but it is not granted lightly.
Can I do it myself
For the deferral request — yes, in principle. It is a written submission to a CBSA officer and there is no rule against preparing it yourself. However, it is always best to “prep” your deferral request with an expectation that it could be refused. The more arguments you have for the later stay motion – the better. So ideally – engage an immigration lawyer to delay your deportation.
For the stay motion — no. Only a lawyer licensed in Canada may appear before the Federal Court on someone else’s behalf, and you would be self-representing in an emergency motion, on a legal test with reported case law behind each branch, usually within days. This is the one process on our site where the honest answer is that you should not attempt it alone.
It is also worth saying plainly: the passage of time does not make a removal order go away. Waiting is not a strategy.
How can lawyers help
- Establishing quickly whether a statutory stay already applies, before anything else is filed
- Building a deferral request that engages the narrow discretion an officer actually has, rather than arguing the merits of a case the officer cannot decide
- Assembling irreparable harm evidence that rises above the ordinary consequences of removal — the branch on which most stay motions fail
- Filing the leave application and emergency motion within the time available
- Appearing before the Federal Court
- Advising on what should be running in parallel: PRRA, H&C, or a sponsorship application
(The above should not be treated as legal advice)
Still unsure? We can help you make sense of your situation and suggest what you might need to do next.