What Is a Section 44 Report in Canada?

The Three Stages of a Section 44 Report

Section 44 sets out a sequence, not a single decision. An officer forms an opinion and writes a report, a delegated officer reviews that report, and then either the Immigration Division holds an admissibility hearing or a removal order is made in the circumstances the Regulations allow. Each stage has a different decision maker and a different legal test. Knowing which stage you are at is the single most useful thing to establish, because it determines what can happen next.

What Happens After a Report Is Written

The sequence below is the statutory path. Timing varies widely, and an officer, a delegate, or the Immigration Division may act on a file at different speeds depending on the ground and the circumstances.

1. 1
   The report is transmitted to the Minister: IRPA s.44(1) provides that a report prepared by an officer shall be transmitted to the Minister. The report sets out the relevant facts and the inadmissibility ground the officer believes applies.
2. 2
   A delegated officer reviews it: Under s.44(2) the question is whether the report is well founded. The reviewing officer is generally the Minister’s delegate, and IRCC’s published guidance for this step is ENF 6, Review of reports under subsection A44(2).
3. 3
   Referral or a removal order in prescribed circumstances: A well-founded report may be referred to the Immigration Division for an admissibility hearing. For a permanent resident reported solely under the s.28 residency obligation, and for a foreign national in the circumstances prescribed by IRPR s.228, a removal order may be made instead of a referral.
4. 4
   The admissibility hearing: If the case is referred, the Immigration Division decides under IRPA s.45. You may be represented by legal or other counsel at your own expense under IRPA s.167(1). Conditions may be imposed on a person who is the subject of a report or a hearing under IRPA s.44(3).
5. 5
   If a removal order is made: The order type follows IRPR s.228 or s.229. A removal order is enforceable once it has come into force and is not stayed (IRPA s.48(1)), and a permanent resident loses that status when a removal order made against them comes into force (IRPA s.46(1)(c)). Appeal rights, where they exist, are in IRPA s.63 and are limited by s.64.

What a Section 44 Report Is Not

A lot of the fear around these reports comes from what people assume they mean. Here is what the statute does not say:

Permanent Residents and Foreign Nationals Are Treated Differently

Section 44 applies to both permanent residents and foreign nationals, but the route the file takes and the appeal rights at the end are not the same.

Permanent residents

• ✓ A well-founded report is generally referred to the Immigration Division for an admissibility hearing. The one exception in s.44(2) is a permanent resident who is inadmissible solely for failing to meet the residency obligation under s.28, where the Minister may make the removal order.
• ✓ For that residency-obligation case, IRPR s.228(2) provides that the order made is a departure order, which is the least restrictive of the three removal order types.
• ✓ A permanent resident or a protected person may appeal a removal order to the Immigration Appeal Division under IRPA s.63(3), whether the order was made under s.44(2) or at an admissibility hearing.
• ✓ That appeal right is removed by IRPA s.64 where the person is found inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, or organized criminality. For s.64, serious criminality means a crime punished in Canada by a term of imprisonment of at least six months, or an offence described in IRPA s.36(1)(b) or (c).
• ✓ Status itself continues until a removal order comes into force (IRPA s.46(1)(c)).

Foreign nationals

• ✓ Section 44(2) allows a removal order to be made without an admissibility hearing in the circumstances prescribed by the Regulations, and IRPR s.228 sets out that list. Many common grounds sit on that list, so a hearing is not the default for every foreign national.
• ✓ IRPR s.228(1) also fixes the order type. Criminality or serious criminality based on a conviction in Canada leads to a deportation order, misrepresentation under IRPA s.40(1)(c) leads to a deportation order, and several failures to comply with the Act under s.41 lead to an exclusion order.
• ✓ A foreign national who holds a permanent resident visa may appeal a removal order to the Immigration Appeal Division under IRPA s.63(2). Other foreign nationals generally have no appeal to that Division, though other legal avenues may exist and a licensed representative can explain them.
• ✓ Conditions, including a deposit or a guarantee, may be imposed on a person who is the subject of a report, a hearing, or a removal order under IRPA s.44(3).

Frequently Asked Questions