Facing removal while your H&C application is pending: can it be used to stop the removal?

By Sundeep S. Grewal, lawyer at Lawgical Law Corporation · Reviewed November 12, 2026

Published November 13, 2026

Sundeep S. Grewal is a lawyer at Lawgical Law Corporation, called to the BC bar in 2018, and a member of the Law Society of British Columbia.

Updated November 12, 2026: IRPR s. 233, IRPA s. 48 and the Federal Court of Appeal’s decision in Baron checked that day.

Many people facing removal have an application on humanitarian and compassionate grounds (H&C) already in IRCC’s queue. It is natural to assume CBSA has to wait for the answer. It does not. Under section 48 of the Act, an enforceable removal order must be carried out as soon as possible, and the regulations stay removal for an H&C only once IRCC forms the opinion that the humanitarian grounds justify a stay, which in practice comes with first-stage approval. Until then, the H&C is a reason you can give CBSA to put off the removal date, and the application a Federal Court judge can be asked to protect with a stay. How strong that reason is depends on where the H&C is in processing and what it is about.

Lawgical Law Corporation, an immigration law firm in Surrey, Abbotsford and Vancouver, BC, brings deferral requests and Federal Court stay motions for people with pending H&C applications; this guide is by Sundeep S. Grewal.

Book a consultation about your stay of removal TapClick to open a short form. Our team will contact you to arrange a time.Short form, 4 quick fields Open form

Does a pending H&C stop removal?

No, not on its own. Section 233 of the Regulations stays a removal order only “if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations”. The stay then lasts until IRCC decides whether to grant permanent residence. Before that point, CBSA’s legal duty under section 48 is to remove you as soon as possible. See humanitarian and compassionate applications for how the application itself works.

Why the processing stage matters

An H&C can be the underlying application for a request to put off removal. How much weight it carries depends a great deal on timing:

IRCC’s IRCC: Check processing times page shows current H&C processing times. They change, so check them on the day you write to CBSA.

Step one: a deferral request to CBSA

A removals officer has a limited discretion over the timing of removal. The Federal Court of Appeal in Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81 adopted the summary in Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682: an H&C application, “absent special considerations”, will not justify deferral unless it is based on a threat to personal safety, and cases where the only harm is family hardship can usually be fixed by readmission if the H&C later succeeds. That is a narrow door, so the request has to show what is special about your case:

• the H&C was filed in good time, not in response to the removal date;
• it raises a risk to your safety, a serious medical issue, or the short-term interests of a child;
• IRCC’s delay, not yours, is why it is still pending;
• removal now would cause harm that coming back later cannot fix.

Step two: a Federal Court stay motion

If CBSA refuses to defer, the refusal can be challenged in the Federal Court, together with a motion to stay the removal until the Court decides. The judge applies the three-part test from Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA): a serious issue, irreparable harm, and the balance of convenience. The ordinary hardships of removal are not enough on their own (Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261). The way removal stays are argued is explained in a stay after a PRRA or deferral refusal.

Why this needs a lawyer

One lawyer, one file, every step:

• checking the H&C’s filing date, contents and stage against the removal timeline;
• writing the deferral request with evidence of what makes the case special;
• filing the Federal Court application and stay motion if CBSA refuses;
• keeping IRCC updated so the H&C can be decided as soon as possible.

The deferral request and the stay motion are usually prepared in days, sometimes hours. The H&C file has to be read with the removal law in mind, or the strongest point gets left out.

Immigration lawyers are members of a provincial law society (in our case, the Law Society of British Columbia), and only a lawyer can bring a motion to stay a removal in the Federal Court. An immigration consultant cannot file or argue it there.

Mistakes I have seen

• Assuming CBSA will wait for the H&C because it was filed.
• Filing an H&C the week before removal and expecting it to stop the removal.
• Writing to CBSA without evidence of IRCC’s processing times or the risk the H&C raises.
• Missing the removal date while waiting for an answer, which can lead to a warrant.

Frequently asked questions

Will IRCC still decide my H&C if I am removed?

The application can continue to be processed after removal in some cases, and a positive decision can allow you to come back. Confirm how your specific application will be handled before you leave.

Can I file an H&C just to delay removal?

Filing does not stop removal, and a last-minute filing is usually given little weight in a deferral request.

Is a pending H&C enough for a Federal Court stay?

Not by itself. The Court looks for a serious issue with the refusal to defer and harm beyond the usual consequences of removal.

Related guides: humanitarian and compassionate applications, a stay after a PRRA or deferral refusal, a parent of Canadian children facing removal, CBSA enforcement interviews.

What should I do right now?

Find your H&C file number and filing date, write down your removal date, and get your evidence of risk, health or children’s needs together today. The deferral request should go to CBSA well before the removal date.

Book a consultation with our immigration lawyers in Surrey, Abbotsford or Vancouver, or online from anywhere.

Ready to book? Open the booking form ↑

Sources (official)

• Immigration and Refugee Protection Regulations, s. 233
• Immigration and Refugee Protection Act, s. 48
• Immigration and Refugee Protection Act, s. 25(1.2) and (1.21)
• IRCC: Check processing times
• Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81
• Wang v. Canada (Minister of Citizenship and Immigration), 2001 FCT 148, [2001] 3 FC 682
• Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (FCA)
• Selliah v. Canada (Minister of Citizenship and Immigration), 2004 FCA 261

This article is general information, not legal advice. Every case depends on its own facts.