The Immigration and Refugee Protection Act (IRPA) provides that permanent residents, protected persons and foreign nationals who are in possession of a permanent resident visa all have the right to appeal removal orders against them. In addition, the IRPA provides for a ground of appeal which applies only to permanent residents. The appeal is not against a removal order although it may result in the Immigration Appeal Division (IAD) making a removal order. The appeal is against a decision made by an officer outside Canada that a permanent resident does not meet the residency obligation found in section 28 of the IRPA.
What are removal orders?
Notwithstanding the general principle that permanent residents have the right to enter and remain in Canada, those rights are not absolute. Removal orders may be made against permanent residents if they are found inadmissible on any of a number of grounds: security, violating human or international rights, serious criminality, organized criminality, misrepresentation, failure to comply with any conditions imposed by the regulations or failure to comply with the residency obligation in IRPA.
In accordance with subsection 44(2) of IRPA, a permanent resident may be ordered removed only by the Immigration Division and not by the Minister, except in the case of a breach of the residency obligation.
A permanent resident enjoys a right of appeal to the Immigration Appeal Division (IAD) unless the removal order is base d on one of the first four grounds listed above. Thus there are two jurisdictional issues. The first one is whether the appellant is a permanent resident as defined in the IRPA. The question of determining whether a person is or is not a permanent resident is fundamental to the exercise of the board's jurisdiction. The second issue is whether an appeal to the IAD is barred because the Immigration Division found the permanent resident inadmissible on one of the grounds enumerated in subsection 64(1) of the IRPA: security, violating human or international rights, serious criminality, or organized criminality.
Loss of Permanent Resident Status
Once acquired, permanent resident status can be lost in certain circumstances.
Subsection 46(1) of the IRPA sets out the four ways in which permanent residents can lose their status:
Return to Canada for appeal
- If they become Canadian citizens
- On a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28 of IRPA
- When a removal order made against them comes into force
- On a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection
After a removal order is made against a permanent resident, they may leave Canada while their appeal is pending. In the case of a decision made outside Canada on the residency obligation, they may already be outside Canada.
Permanent residents do not lose their status until there has been a final determination of their appeal of their removal order. Also, permanent residents do not lose their status when a decision is made outside Canada that they do not meet the residency obligation. It is only when there has been a final determination of that decision that they lose their status. Therefore an appellant may be able to return to Canada as a permanent resident during the appeal process. In cases where an appellant has returned to Canada and the appeal under s. 63(4) is dismissed the IAD must issue a removal order, i.e. a departure order.