Case snapshot
At a glance
- Case
- Can a Removal Order Be Stayed Pending Judicial Review in Ontario?
- Court / Tribunal
- FC
- Date
- July 20, 2026
- Area of law
- Immigration Law
- Key issue
- Whether the applicant met the legal test for a stay of removal pending judicial review of an immigration decision.
- Outcome
- The Federal Court ruled on the stay application, applying the established three-part test to determine whether removal should be paused while the underlying matter was reviewed.
- Why it matters
- If you or a family member is facing removal from Canada, understanding when a court will pause that removal can be the difference between staying in Canada and being forced to leave before your case is heard.
Legal principle
The rule from this case
To obtain a stay of removal in Canada, an applicant must satisfy a three-part legal test: first, there must be a serious issue to be argued on judicial review — meaning the underlying challenge is not frivolous; second, the applicant must show they would suffer irreparable harm if removed before the review is heard; and third, the balance of convenience must favour granting the stay, meaning the harm to the applicant must outweigh any harm to the public interest in enforcing immigration law. Courts do not grant stays automatically just because a judicial review application has been filed. Each part of the test must be genuinely satisfied. Irreparable harm, in particular, requires more than inconvenience or hardship — it means harm that cannot be adequately compensated or undone if the applicant ultimately wins their judicial review.
Important limits
What this does not mean
This decision does not mean that anyone facing removal can simply file for judicial review and expect removal to be automatically paused. The stay is a separate, discretionary remedy, and courts scrutinize each application carefully. Filing a judicial review application alone does not stop a removal order from being enforced. This case also does not establish a new or lower threshold for obtaining a stay. The three-part test remains demanding, and applicants who cannot clearly demonstrate irreparable harm or a serious underlying issue are unlikely to succeed. Each case turns on its own facts, and the outcome here should not be read as a guarantee for others in similar situations.
What Is a Stay of Removal and How Does It Work in Canada?
A stay of removal is a court order that temporarily pauses a removal order while a legal challenge — typically a judicial review — is pending. Without a stay, the Canada Border Services Agency (CBSA) can enforce a removal order even if you have filed an application for judicial review at the Federal Court. Getting a stay requires a separate, urgent court motion, and it is not granted automatically.
In Alhayajneh v. Canada (Citizenship and Immigration), 2026 CanLII 72622 (FC) (CanLII), the Federal Court considered whether the applicant had met the legal requirements to have their removal paused while their immigration matter was reviewed. This type of motion is one of the most time-sensitive proceedings in Canadian immigration law.
What Is the Legal Test for a Stay of Removal in Canada?
The legal test for a stay of removal has three parts, and all three must be satisfied. First, the applicant must show there is a serious issue to be determined — meaning the judicial review application raises a genuine legal question, not just a weak or frivolous argument. Second, the applicant must demonstrate that they would suffer irreparable harm if removed before the review is decided. Third, the balance of convenience must favour the applicant — in other words, the harm to the applicant from being removed must outweigh the public interest in enforcing immigration law promptly.
This three-part framework is well-established in Canadian courts and applies in virtually every stay of removal motion. Courts do not treat any one part as automatically satisfied — each element requires real evidence and legal argument.
What Counts as Irreparable Harm in an Immigration Stay Motion?
Irreparable harm is often the hardest part of the test to satisfy. It means harm that cannot be adequately remedied after the fact — not simply hardship, inconvenience, or the disruption that naturally comes with leaving Canada. Courts have consistently held that the emotional difficulty of being separated from family or losing a job, while real, does not automatically qualify as irreparable harm.
Examples that courts have found more persuasive include a serious and personalized risk to life or safety upon return to the country of removal, medical conditions that cannot be treated abroad, or situations where removal would effectively render the judicial review moot — meaning there would be no practical way to undo the harm even if the applicant won.
Does Filing a Judicial Review Application Stop Your Removal?
No — filing a judicial review application does not automatically stop a removal order. This is one of the most common misunderstandings in immigration law. The judicial review and the stay motion are two separate proceedings. If you want removal paused, you must bring an urgent stay motion and succeed on all three parts of the legal test.
Time is critical. Stay motions are typically heard on very short notice, sometimes within days of a scheduled removal. If you are facing a removal order and believe you have grounds for judicial review, you should seek legal advice immediately. Our Ontario immigration lawyers can help you assess whether a stay motion is appropriate in your situation.
How Does the Court Weigh the Balance of Convenience?
The balance of convenience asks the court to weigh the harm to the applicant against the public interest in enforcing immigration law. Canada has a legitimate interest in maintaining the integrity of its immigration system, which means courts do not treat this part of the test lightly. However, where an applicant has demonstrated a serious issue and genuine irreparable harm, the balance often tips in their favour.
Factors that can influence this analysis include the length of time the applicant has lived in Canada, family ties, the nature of the underlying immigration decision being challenged, and whether the applicant has complied with immigration requirements throughout their time in Canada.
What Happens If a Stay Is Denied?
If a stay is denied, the removal order can be enforced, and CBSA may proceed with removal even while the judicial review application remains before the court. In some cases, the judicial review may continue from outside Canada, but practically speaking, the ability to participate meaningfully in the proceedings — and to benefit from a successful outcome — can be significantly affected.
If you are removed and later succeed on judicial review, the court may set aside the underlying decision, but that does not automatically mean you will be permitted to return to Canada immediately. The consequences of a failed stay motion can be serious and long-lasting, which is why the motion must be prepared carefully and with strong supporting evidence.
Practical Takeaways for People Facing Removal Orders
- Act immediately. If you receive a removal date, contact an immigration lawyer right away — stay motions are time-sensitive and courts expect urgent action.
- Filing judicial review alone is not enough. You must bring a separate stay motion; the removal order will not be paused automatically.
- Gather evidence of irreparable harm. Medical records, country condition evidence, and documentation of personal risk are critical to satisfying the second part of the test.
- Understand that all three parts of the test must be met. A strong argument on one element does not compensate for weakness on another.
- Get legal help early. The stronger and more complete your materials, the better your chances — last-minute, poorly supported motions rarely succeed.
If you are in the Hamilton or Halton region and facing an urgent immigration matter, our team at UL Lawyers in Burlington is familiar with the timelines and evidentiary requirements these motions demand. We also assist clients across the GTA, including those seeking judicial review of immigration decisions.
UL Lawyers offers a free initial consultation from their Burlington office and serves clients across Ontario. If you or a family member is facing removal, reach out to speak with one of our immigration lawyers before time runs out.
This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.
FAQ
Frequently asked questions
You should act as soon as you receive a removal date — stay motions are often heard with only a few days' notice. Waiting too long can mean the motion is not heard before removal is carried out.
Yes, a failed refugee claimant can apply for a stay of removal pending judicial review of the Refugee Protection Division's decision, but you must satisfy all three parts of the legal test. Simply having a pending judicial review application does not pause your removal.
You typically need affidavit evidence addressing each part of the three-part test — particularly evidence of irreparable harm, such as medical records, country condition documents, or personal risk information. The strength of your evidence often determines the outcome.