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TORONTO CANADA
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Deportations By Immigration Canada Can Be Stayed |
Author: George J. Kubes B.A., LL.B.
Over the past several months there has been much publicity concerning Canada Immigration’s deportation of many persons who were living in Canada for several years without proper residency documentation. Many of these persons were from the Portuguese and Brazilian communities, but some deportations were and continue to be with respect to people from other ethnic groups. Many of these persons had arrived in Canada as visitors several years ago, and when their visitor visas expired, rather than returning to their countries of origin, they remained in Canada without having any visas. In essence they became illegals.
As time went by, they started to also work illegally in various industries, including the construction industry. They were performing a very useful service for their employers, who were certainly aware of their employees’ situations. Eventually, the thought of ever leaving Canada became very distant to the thinking of these persons, as they had family and work here, some of them had children born in Canada who automatically became Canadian citizens, and they essentially became Canadianized to some degree.
Many of these people did want to legalize their residency status in Canada, but some were incorrectly advised that their residency status would eventually be legalized through an amnesty or through some other means. Some of them later even claimed refugee status in an effort to avoid being sent back to their countries. Unfortunately, many of these people paid a lot of money to their advisors, but received very little in return, until finally their hopes were crushed when Canada Immigration began deporting them, in some cases seven or even more years after they first arrived in Canada.
The illegal residents normally encounter, and are detained by, Canada Immigration as a result of being identified during a traffic stop, or during a raid by immigration officers at the residence or work address of the illegal resident. Once they are detained, it is important for these persons to realize that officers working for Canada Immigration are not their friends, and that these officers’ mandate is to deport people who are in Canada illegally, as soon as possible. The officers may often give what appears to be legal advice to the detained person, as far as what the person’s options in that situation are. It is important for the illegal resident to receive proper legal advice from a competent legal advisor, who is able to assist in this situation. It is important also to realize that the Charter applies to many aspects of the case at this point.
Although the situation for these persons is seemingly hopeless, there are steps that a person faced with deportation can take in order to improve the chances of remaining in Canada. The most effective one is to make an application for a stay of the deportation order to the Federal Court, which if granted, could eventually lead to the person becoming a permanent resident of Canada. This application is usually brought on an urgent basis seeking an immediate hearing - sometimes on the same or the next day - in which the Federal Court is asked to stop the deportation on an interim basis, because the person or the family in question would be irreparably harmed, physically or emotionally, if they were deported from Canada.
The court will consider several factors in determining whether the deportation should be stopped. These will include whether there is any family illness, unfinished school by the children, whether the person would be harmed in his or her own country if deported there, and many others.
As well, one of the factors the Federal Court looks at is whether the person or family has any outstanding immigration applications in progress, for example, whether an application to remain in Canada pursuant to humanitarian and compassionate grounds had previously been made by the family, but for which no decision has yet been made by Canada Immigration. In some cases the Federal Court of Canada has stopped the deportation, where the family had earlier made an application based on humanitarian and compassionate grounds, and allowed the family to stay in Canada, pending the decision in that application. It is therefore very important to begin an application for permanent residence in Canada based on humanitarian and compassionate grounds as soon as possible, and not to wait until the person is detained by Canada Immigration, because at that point it may be too late.
Persons who have lived in Canada illegally for several years are very qualified to make an application for permanent residence in Canada based on humanitarian and compassionate grounds, because in that application process, one must show that he has established himself and his family in Canada, that his children are attending school, that he has friends in Canadian society, that he has worked in Canada (even if only illegally), that he has a bank account and some money, that he can produce letters of support from Canadian friends and associates, and many other factors.
There have been cases in which a family made an application for permanent residence in Canada based on humanitarian and compassionate grounds, and six months or a year later, while this application was in process, a member of the family was detained by Canada Immigration, and Canada Immigration at that point wanted to deport the entire family. In that situation, an urgent Application to the Federal Court might be able to stay the deportation, using several arguments, including the argument that the family should be allowed to stay in Canada because they have an outstanding application based on humanitarian and compassionate grounds, and no decision has yet been made in that application.
No matter how long a person has been in Canada without proper documentation, it is very important to receive proper legal advice prior to being detained by Canada Immigration, to determine what options a person has with respect to legalizing his or her residency in Canada. However, even if one has been detained by Canada Immigration, it is not too late to determine what steps can be taken to assist the family in preventing the deportation.
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