Immigration | If I am deported, what happens to my Canada-born children?

Dear Miss Powell,

My refugee claim was refused, and I have been served with a deportation order. I have two children who were born here. What happens to my Canada-born children?

T.E.

Dear T.E.,

Children born in Canada are citizens from birth, regardless of a parent’s status, with a narrow exception for children of foreign diplomats and persons with diplomatic privileges under Section 3 of the Citizenship Act. A removal order against you is not a removal order against your children.

YOUR CHILDREN ARE NOT BEING DEPORTED

Having a Canada-born child does not prevent the removal of a foreign national parent. If you are removed and choose to bring your children, Canadian Borders Services Agency (CBSA) can arrange for them to travel with you. If they stay in Canada, their citizenship is unaffected either way, and it does not lapse if they later leave the country with you. The issue now becomes their eligibility to stay in your home country with you and their status there.

If there is another parent with parenting rights, you cannot decide unilaterally to remove the children from Canada. Existing custody arrangements and other family law obligations may still apply.

THEIR BEST INTERESTS MATTER

Under subsection 25(1) of the Immigration and Refugee Protection Act, IRCC must consider the best interests of a directly affected child when assessing an application for permanent residence on humanitarian and compassionate (H& C) grounds. Relevant factors include the children’s ages, how established they are here, their education and health needs, conditions in the country they may have to live in, and the effect of separation from a parent. The children’s citizenship alone does not decide the outcome. The application must show what removal, or separation, would mean for each child.

YOU MAY HAVE AN H&C OPTION

A failed refugee claimant is normally barred from filing an H&C application for 12 months after refusal. That bar does not apply where your removal would have an adverse effect on the best interests of a child directly affected, but the exception is not automatic. It requires evidence of what that effect would actually be, not just proof that your child was born in Canada. You should also note that filing an H&C application does not automatically stop your removal. IRCC can still require you to leave while the application is pending.

ACT QUICKLY

Since you have a deportation order and time-limited options, I recommend that you contact an immigration lawyer directly to assist you. Depending on what has already happened in your case, you may still have options such as the ability to appeal to the Refugee Appeal Division, seek judicial review at the Federal Court, request a Pre-Removal Risk Assessment, or file an H&C application. Deadlines are short. An application for judicial review of an IRB decision made in Canada must generally be filed within 15 days.

If CBSA has called you for a removal interview, it is important to tell the officer about any circumstances affecting your children. A child’s school year, medical treatment or other significant needs may be relevant to the timing of your removal. You may also request a deferral of removal, based on the best interests of your children. This does not cancel the removal order, and CBSA’s discretion is limited once the order is enforceable, but these circumstances should be raised and supported with evidence.

Your children’s citizenship protects their ability to remain in Canada, not you. Your ability to remain in Canada will be based on whether there is a legal basis to challenge your removal, and whether the impact on your children supports another route to remain. Speak to an immigration lawyer immediately to find out which of these options, if any, are still open to you.

Deidre S. Powell is a lawyer, mediator and author in Canada. Contact her via www.deidrepowell.com or WhatsApp 613-695-8777.