Immigration and Refugees Law
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Securing an IAD Stay Removal Order is a critical legal remedy within the Canadian immigration system. The Immigration Appeal Division (IAD) plays a fundamental role in reviewing enforcement actions. A frequent question among applicants is: under what legal circumstances will the tribunal halt deportation on humanitarian and compassionate (H&C) grounds?
According to the explicit language of Canadian law, the tribunal will only grant an IAD Stay Removal Order if it is satisfied, after weighing all positive, negative, and neutral factors, that there are sufficient humanitarian and compassionate considerations to warrant special relief. This evaluation is highly discretionary, deeply fact-specific, and statutorily mandates the careful consideration of the best interests of any child directly affected by the decision.
The jurisdiction of the tribunal to hear appeals against deportation is explicitly derived from the Immigration and Refugee Protection Act (IRPA). Under subsection 63(3) of the IRPA, a permanent resident or a protected person holds the right to appeal an enforcement decision made either under subsection 44(2) or at an admissibility hearing. If you need immediate assistance with your case, please visit our Legal Consultation page.
Upon reviewing the merits of an appeal, the statutory remedies available are clearly delineated. As outlined in section 66 of the IRPA, the Division must choose one of three distinct paths:
Consequently, issuing a stay is an explicit statutory remedy provided by Parliament, rather than an implied or auxiliary power of the tribunal.
The statutory core of the framework is found in subsection 68(1) of the IRPA, which mandates the exact parameters required to issue an IAD Stay Removal Order:
“To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.”
The definitive interpretation of this mandate was established by the Supreme Court of Canada in the landmark ruling Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3. The Supreme Court affirmed that the panel is legally obligated to examine every relevant circumstance through an open, flexible framework, rather than applying a restrictive or exhaustive checklist. The Court confirmed that the historical “Ribic factors” remain the proper analytical tool, stating:
“The factors set out in Ribic remain the proper ones for the I.A.D. to consider during an appeal under s. 70(1)(b)… The I.A.D. is thus obliged to consider every relevant circumstance…”
The Supreme Court further emphasized that “this list is illustrative, and not exhaustive,” meaning that the weight assigned to any single factor varies entirely based on the unique facts of the individual case.
This principle continues to govern under current legislation. In Canada (Public Safety and Emergency Preparedness) v. Slimani, 2019 FC 39, the Federal Court reiterated that under subsection 68(1), the panel must apply these non-exhaustive factors to determine whether special relief is warranted in light of all circumstances.
As confirmed in Canada (Public Safety and Emergency Preparedness) v. Nguyen, 2017 FC 915, which cited and upheld the traditional Ribic framework, specific general areas determine if an individual qualifies for relief. In practice, the balancing assessment covers the following central areas:
| Factor Category | Legal Considerations & Jurisprudential Context |
|---|---|
| Seriousness of the Offence & Rehabilitation | The severity of the underlying misconduct leading to the removal order, balanced against the genuine possibility of rehabilitation and the prospective risk of re-offending. |
| Establishment in Canada | The total length of time the individual has lived in Canada and the depth of their economic, social, and cultural roots. Learn more about status on our Permanent Residency page. |
| Family Ties & Dislocation | The presence of family members in Canada and the degree of severe emotional, psychological, or logistical dislocation that deportation would cause to the family unit. |
| Community and Family Support | The availability of stable, supportive networks within both the immediate family and the broader community. |
| Hardship in the Country of Origin | The degree of hardship the individual would experience if returned to their country of nationality, which may include country conditions (subject to specific legal status limitations). |
| Best Interests of an Affected Child | A mandatory statutory consideration evaluating how the removal or stay impacts any minor child directly affected by the decision. |
As emphasized in Slimani (at para 16), weighing and applying these factors is a “highly fact-based and discretionary exercise” where the tribunal holds the exclusive authority to determine what specific weight to assign to each element. For more information on the structure of these hearings, read our guide on Canadian Immigration Courts.
The statutory text explicitly compels the panel to take into account the best interests of a child directly affected by the decision. This mandatory requirement is embedded across the statutory scheme, appearing in both paragraph 67(1)(c) (for allowing an appeal) and subsection 68(1) when processing an IAD Stay Removal Order.
In Nguyen (2017 FC 915), the Federal Court characterized these considerations as foundational, noting that they are “not only relevant, but they are also essential to an assessment under paragraph 67(1)(c) of the IRPA.” In that specific case, the court highlighted that the children’s best interests were best served by having their father actively involved in their upbringing. Similarly, in the administrative decision Taher v. Canada (Public Safety and Emergency Preparedness), (2018) IRB, the panel explicitly noted its legal obligation to evaluate this factor, concluding that the best interests of the children weighed heavily in favor of granting relief.
Generally, a single positive factor cannot independently guarantee an IAD Stay Removal Order. The panel is legally required to balance the entire evidentiary matrix. As explained by the Federal Court in Slimani, the panel must comprehensively weigh positive, negative, and neutral elements together.
For instance, an individual might demonstrate exceptional establishment or deep community roots in Canada; however, if the underlying criminal offence is exceptionally severe, the risk of recidivism remains high, or family support is negligible, the stay may legally be denied. Conversely, if an offence is historical, genuine rehabilitation is proven, the family unit is highly dependent on the individual, and children face severe disruption, the probability of obtaining relief increases significantly.
In appeals involving criminality, the severity of the offence and the prospects of rehabilitation frequently occupy a central role in the analysis. In Canada (Public Safety and Emergency Preparedness) v. Khongsawat, 2018 FC 57, the Federal Court confirmed that the tribunal is fully entitled to concentrate its primary analytical focus on the person’s potential for rehabilitation based on the specific circumstances of the case. Furthermore, as upheld in Nguyen, the tribunal can validly conclude that an individual has demonstrated the capacity to function productively in society and live a crime-free life, offsetting an existing criminal record against long-term residency and family ties.
While the Supreme Court in Chieu established that “all the circumstances” broadens the scope to include conditions an individual would face upon removal, this factor does not apply uniformly to every appellant. In Bangoura v. Canada (Public Safety and Emergency Preparedness), (2016) IRB, the tribunal clarified that because a convention refugee is legally protected by the international law principle of non-refoulement, potential hardship in the country of origin cannot be factored into the balancing test for that category of individuals.
A stay granted by the tribunal is inherently temporary and conditional rather than a final cancellation of the deportation mandate. Under subsection 68(2) of the IRPA, the Division is statutorily required to impose prescribed conditions and holds the discretionary authority to append any additional conditions it deems necessary for the duration of the stay.
The mandatory conditions are set out in section 251 of the Immigration and Refugee Protection Regulations (IRPR) and require the foreign national or permanent resident to:
A stay can be modified, cancelled upon application, or terminated automatically by operation of law. A critical enforcement mechanism is found in subsection 68(4) of the IRPA: if an individual who was ordered removed due to serious criminality, criminality, or transborder criminality is subsequently convicted of another offence described under subsection 36(1) of the IRPA, the IAD Stay Removal Order is automatically cancelled by operation of law and the appeal is terminated immediately.
While both remedies rely on the same fundamental humanitarian and compassionate considerations, their legal outcomes differ significantly. The tribunal may choose to outright allow an appeal under section 67, which sets aside the removal order completely. Alternatively, it may issue a stay under section 68.
A stay is typically utilized when the tribunal finds sufficient H&C factors to block immediate removal but determines that a structured period of immigration supervision, monitoring, and personal accountability is required before the case can be fully resolved. As articulated by the panel in Taher (2018 IRB), a conditional stay provides an essential period of supervision rather than dissolving the enforcement order outright.
In conclusion, the tribunal will issue an IAD Stay Removal Order on humanitarian grounds only when a holistic, fact-specific assessment proves that the positive factors—such as extensive rehabilitation, deep family dependency, long-term Canadian establishment, severe country hardship, and the best interests of affected children—collectively outweigh negative factors like criminal severity and public safety risks. The decision remains entirely discretionary, meaning no single factor acts as an absolute determinative trigger, though child interests, offence gravity, and rehabilitation consistently command the highest analytical weight.
The Supreme Court of Canada’s decision in Mason (2023) provides a strong framework to reject overbroad interpretations of security inadmissibility by requiring a strict, direct nexus to Canada’s national security.
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