Can You Claim Asylum from a Canadian Jail While Awaiting Deportation?

Finding yourself in a provincial or federal correctional centre is a terrifying experience, but for foreign nationals, the nightmare is often compounded by an active removal order. If you have been convicted of a crime in Canada, the Canada Border Services Agency (CBSA) will usually place an immigration hold on you. This means that on the day you finish serving your criminal sentence, you will not be released into the community. Instead, you are transferred directly into immigration detention to await deportation. For individuals from dangerous countries, being sent back could mean facing persecution, torture, or death.

You absolutely have the right to seek protection under Canadian and international law, even from behind bars. 📊 However, because you are already subject to an active removal order, subsection 99(3) of the IRPA prevents you from submitting a new refugee claim to the Immigration and Refugee Board (IRB). Instead, your protection claim must be processed through a paper-based Pre-Removal Risk Assessment (PRRA). Additionally, under paragraph 101(2)(a) of the IRPA, a domestic conviction rules a claim ineligible on the grounds of “serious criminality” if the offence is punishable by a maximum term of imprisonment of at least 10 years.

This guide explains the highly complex process of claiming protection while in Canadian custody. Whether you are detained in Toronto, Montreal, or Calgary, we will outline how to initiate a claim, how to navigate the PRRA process, and why retaining a specialized Canadian immigration law firm is the most important step you can take to fight your deportation. 📂

Step-by-Step Process in Canada

Step 1: Notifying CBSA and Correctional Staff

Your very first step is to declare your intent to seek protection. You must tell the correctional staff and the CBSA liaison officer at your facility that you fear returning to your home country. By law, once you express a fear of return, CBSA must temporarily pause your physical removal and provide you with the application forms for protection.

Step 2: Assessing Your IRB Eligibility

The CBSA will review your status and criminal history to determine your available legal pathway. ⚖ Under subsection 99(3) of the IRPA, because you are already subject to an active removal order, you are completely barred from making a new refugee claim to the IRB, regardless of whether your crime was a minor summary conviction or an indictable offence. For anyone facing deportation, the PRRA is the only available protection mechanism. Furthermore, even if you were not subject to a removal order, under paragraph 101(2)(a) of the IRPA, a Canadian conviction disqualifies a claim from the IRB on the grounds of “serious criminality” if the offence is punishable by a maximum term of imprisonment of at least 10 years.

Step 3: Retaining an Immigration Lawyer

Fighting a deportation from jail without a lawyer is nearly impossible. You must use your facility’s phone system to contact an immigration law firm or provincial legal aid (such as Legal Aid Ontario). Your lawyer will need to schedule a legal visit at the jail to take your testimony, gather evidence of the danger you face, and begin drafting your legal submissions.

Step 4: Submitting the PRRA or BOC Application

If you are routed to a PRRA, you usually have just 15 days to apply and 30 days to submit your written evidence. 📄 Your lawyer will compile country condition reports, human rights documents, and your personal affidavit to prove that you face a personalized risk of torture or death if deported. Because PRRA applications for criminals are decided almost entirely on paper without a hearing, this documentation must be flawless.

Step 5: Receiving the Danger Opinion

If you have a serious criminal record, IRCC must balance the risk to your life against the danger you pose to the Canadian public. The Minister will issue a “Danger Opinion.” If they decide you are a massive threat to Canada, they can legally deport you even if you face risks back home, though this is reserved for extreme cases.

Step 6: Seeking a Stay of Removal at Federal Court

If your PRRA is refused, the CBSA will move to deport you immediately. 🏨 Your final option is for your law firm to file an Application for Leave and Judicial Review at the Federal Court of Canada, alongside an urgent motion for a Stay of Removal to physically stop the plane from leaving while a judge reviews your case.

How Much Does it Cost in Canada?

Defending against deportation while incarcerated is extremely costly because it requires immediate, emergency legal interventions.

• Government Filing Fees: Applying for a PRRA is free ($0 CAD). However, filing for Judicial Review at the Federal Court costs $50 CAD.
• Immigration Lawyer Retainer: Hiring a law firm to manage a PRRA while in custody generally costs between $5,000 and $10,000 CAD due to the complexity and jail visits.
• Federal Court Stay of Removal: Emergency litigation to stop a deportation flight typically costs an additional $5,000 to $12,000 CAD.
• Translation Services: Translating police reports or affidavits from your home country costs roughly $50 to $100 CAD per page.

How Long Does the Process Take?

Timelines are incredibly compressed when you are in custody. ⏳ You have exactly 15 days to notify IRCC that you are applying for a PRRA, and 30 days to submit the evidence. Once submitted, a PRRA decision for a detained individual is fast-tracked and usually takes 1 to 3 months. If you lose and must file a Stay of Removal, your lawyer may have only 48 hours to draft and file the emergency injunction before your scheduled deportation flight.

Frequently Asked Questions (FAQ)

Author: lawyerinfo.ca