Immigration Appeal Division (IAD)
Overview
The Immigration Appeal Division (IAD) hears four types of immigration appeals: (1) appeals by permanent residents or foreign nationals with valid visas against removal orders made by the ID; (2) appeals by sponsors of refused family class sponsorship applications; (3) appeals by permanent residents of residency obligation determinations; and (4) certain appeals involving travel outside Canada. The IAD can allow appeals on legal or factual error or on humanitarian and compassionate grounds — it may stay a removal order with conditions. Persons inadmissible on serious criminality grounds (s 36(1)) have no right of appeal to the IAD.
The IAD's H&C jurisdiction is one of its most distinctive features. Unlike a court on judicial review (which can only set aside decisions for legal error), the IAD can intervene based on the circumstances of the case and the interests of the person and their family — even where the removal order is legally correct.
Legal basis
- IRPA s 63 — the four types of IAD appeals and who may bring them
- IRPA s 64(1) — no right of appeal to the IAD for persons inadmissible on serious criminality (s 36(1)) or security (s 34)
- IRPA s 65 — in family class appeals, the IAD may not consider H&C grounds unless it has found that the person is not a member of the family class (i.e., H&C is an alternative, not the primary ground)
- IRPA s 67 — IAD powers: allow the appeal, stay the removal order, dismiss the appeal
- IRPA s 68 — the IAD may stay a removal order and impose conditions; if conditions are breached, the stay may be cancelled
How it works
Appeal type 1 — Removal order appeals (s 63(1)–(2))
A permanent resident or foreign national who holds a valid visa may appeal to the IAD against a removal order made by the ID. The IAD may allow the appeal if:
- The ID erred in law or fact (legal/factual error ground), or
- H&C circumstances warrant relief even if the removal order is legally correct
The IAD may also stay the removal order — allowing the person to remain in Canada subject to conditions — and review the stay periodically. If conditions are met, the IAD may lift the order.
Appeal type 2 — Sponsorship refusals (s 63(1))
A sponsor whose family class sponsorship application was refused by IRCC may appeal to the IAD. The IAD conducts a de novo review — it may hear new evidence and makes its own findings on whether the person is a member of the family class. The IAD also has H&C jurisdiction in sponsorship appeals.
Appeal type 3 — Residency obligation (s 63(3)–(4))
A permanent resident who has been determined to have not met the residency obligation (s 28 — 730 days in 5 years) may appeal to the IAD. The IAD may allow the appeal on H&C grounds — for example, where the person was abroad for compelling reasons (medical emergency, employment obligation) and the circumstances do not warrant loss of status. See the residency obligation concept page.
The serious criminality bar — s 64
A permanent resident who is inadmissible under s 36(1) (serious criminality — convicted in Canada for an offence with a maximum imprisonment of at least 10 years, or receiving a term of imprisonment of more than 6 months) has no right of appeal to the IAD. The only remedies are judicial review, PRRA, or an H&C application outside the IAD.
H&C factors in IAD removal order appeals
When exercising H&C jurisdiction, the IAD considers the Ribic/Chieu factors (from leading cases):
- Seriousness of the offence or conduct
- Remorse and rehabilitation
- Establishment in Canada
- Family and community support in Canada
- Hardship to the person and family members if removed
- Best interests of any children affected