What Is Immigration Detention?
Immigration detention is the lawful custody of a person by the Canada Border Services Agency (CBSA) while immigration proceedings are ongoing. A person in immigration detention is held in custody pending resolution of their immigration status, typically while awaiting removal, pending a hearing, or during an investigation.
Difference From Criminal Detention
Immigration detention is separate from criminal detention. You do not need to have committed a crime to be detained for immigration purposes. Immigration detention is civil in nature and is used to manage immigration matters rather than to punish criminal conduct.
Types of Detention Facilities
People in immigration detention may be held in various types of facilities. Some immigration detention centers are dedicated facilities. Others are provincial jails or remand centers. In some cases, people may be detained in hotel rooms or other informal settings. The conditions and restrictions vary depending on the facility.
When Can You Be Detained?
CBSA can detain a person for immigration purposes in specific circumstances. Understanding when detention is permitted can help you anticipate your rights.
At a Port of Entry
CBSA may detain you when you arrive at a port of entry (airport, land border, or marine port) if you do not have proper documentation, if your identity is unclear, or if CBSA believes you pose a security risk or flight risk. This detention may be brief (to complete initial processing) or may extend if investigation or proceedings are necessary.
During Immigration Proceedings
If you are in the middle of immigration proceedings (such as a refugee claim or removal process) and CBSA believes you are unlikely to appear for your hearing or departure, you may be detained. CBSA may also detain you if you are unable or unwilling to provide proof of identity.
Pending Removal
If you have received a removal order and are waiting to be removed from Canada, CBSA may detain you to ensure your departure. You may be released on conditions if CBSA is satisfied you will depart as ordered.
Security or Criminality Concerns
If you are believed to be a security risk or if you have been convicted of serious crimes, CBSA may detain you while these matters are investigated or processed. Detention in these circumstances is intended to protect public safety.
Identity Verification
CBSA may detain you if you are unable or unwilling to provide proof of your identity. This detention continues until your identity is established to CBSA's satisfaction. Providing your identity truthfully and completely is important to facilitate your release.
Your Rights in Immigration Detention
Even though you are in immigration detention, you retain important legal rights. Understanding these rights is crucial to protecting yourself during detention.
Right to Know Why You Are Detained
You have the right to be informed of the reasons for your detention. CBSA must provide you with written documentation explaining why you are being detained. If the reasons are unclear to you, you may request clarification.
Right to a Lawyer
You have the right to consult with a lawyer without delay. You may retain a lawyer to represent you in detention review hearings and other proceedings. If you cannot afford a lawyer, you may be eligible for legal aid in some provinces.
Right to Interpretation Services
If you do not speak English or French, you have the right to an interpreter at no cost. This is particularly important for detention review hearings so you can understand what is happening and communicate with your representative.
Right to Communication
You have the right to communicate with your family and legal representatives. While detention facilities may have restrictions on communication (such as scheduled phone times), you cannot be completely prevented from contacting your family or lawyer.
Right to Medical Care
The right to medical care exists while in detention. If health concerns or medical conditions exist, informing detention staff promptly is important. Detention facilities must provide access to medical services for detainees.
Right to File a Complaint
If you are mistreated in detention or your rights are violated, you have the right to file a complaint. You may complain to the detention facility management, to CBSA, to the Office of the Correctional Investigator, or to provincial oversight bodies depending on where you are detained.
Detention Review Hearings
If you are in immigration detention, you have the right to have your detention reviewed to determine whether it remains necessary and justified.
First Review
The first detention review must be scheduled within three days of detention. At this hearing, evidence and arguments may be presented regarding why release should be granted. The decision-maker will determine whether continued detention is necessary.
Subsequent Reviews
If detention continues after the first review, the right to request subsequent reviews exists. The second review may be requested after 30 days, and then reviews may be requested every 60 days. Each review provides an opportunity to present evidence that circumstances have changed and that release should be granted.
What to Present at Review
At a detention review, evidence should be presented demonstrating that the person is not a flight risk and that they will appear for immigration proceedings or removal as ordered. A community ties affidavit signed by someone in Canada who can vouch for the detainee may be presented. Evidence of employment, family in Canada, or property ownership may be presented. Evidence that identity has been established may be presented.
Standard of Review
The decision-maker will determine whether detention is necessary based on whether the person is a flight risk, whether their identity is verified, and whether they pose a security risk. The detained person does not need to prove release should be granted. Rather, CBSA must demonstrate reasonable grounds that continued detention is justified.
Alternatives to Detention
Canadian law requires that detention be used only when alternatives are not suitable. Several alternatives to detention may be available.
Reporting Conditions
Rather than being detained, you may be released on the condition that you report regularly to CBSA (for example, weekly or monthly). Reporting allows CBSA to monitor your compliance while allowing you to remain in the community.
Sureties and Bonds
You may be released if a person known as a surety (a friend, family member, or someone else in the community) agrees to supervise you and provide a bond (a financial guarantee) that you will appear for your proceedings or comply with conditions. The surety agrees to be responsible for your conduct.
Release on Own Recognizance
You may be released on your own recognizance (your personal promise) with or without a bond. In this case, you promise that you will appear for your proceedings and comply with any conditions imposed.
Bail Conditions
Release may be conditional on adhering to specific conditions such as maintaining a fixed address, providing notice of address changes, refraining from leaving the country, or not contacting certain individuals.
Detention Conditions and Concerns
Immigration detention can involve challenging conditions. Understanding what to expect and how to protect yourself is important.
Facility Types
Conditions vary significantly depending on the facility where you are detained. Dedicated immigration detention centers may have better conditions than provincial jails. Some facilities are more secure than others. Knowing where you are detained can help you understand your circumstances.
Vulnerable Populations
Special rules apply to vulnerable people in immigration detention. Children, pregnant women, and people with mental health conditions should not be detained unless there are no suitable alternatives. If you fall into a vulnerable category, inform CBSA and request alternatives to detention.
Complaints About Conditions
If you experience mistreatment, insufficient food, inadequate medical care, or other serious concerns about detention conditions, you have the right to complain. Make a formal written complaint and request that it be documented.
Options for Release
Several options may lead to your release from immigration detention.
Successful Detention Review
The most direct path to release is success at your detention review hearing. If the decision-maker finds that you are not a flight risk and that detention is not necessary, you may be released on conditions.
Changed Circumstances
If your circumstances change after your initial detention (for example, if a surety becomes available, or if your identity is established), you may request a new detention review based on these changed circumstances.
Court Applications
In some cases, you may apply to the Federal Court for review of your detention. If you can show that your detention is unlawful or unreasonable, the court may order your release. This requires legal representation.
Negotiation With CBSA
In some cases, your lawyer or representative may be able to negotiate release terms with CBSA without requiring a formal hearing. CBSA may be willing to release you on conditions if it is convinced you will comply.
Indefinite Detention Issues
In some cases, people remain in immigration detention for extended periods because their country of origin cannot be reached or will not accept their return. This raises serious legal concerns.
Detention Without Realistic Prospect of Removal
If you have been detained for a long period and it appears unlikely that you will be removed in the foreseeable future (for example, because your country has no diplomatic relations with Canada or refuses to accept your return), your continued detention may be unlawful.
Legal Challenge
If you are in prolonged detention without a realistic prospect of removal within a reasonable timeframe, you may apply to the Federal Court for review. The court has found that indefinite detention without reasonable prospect of removal can violate Canadian rights.
Impact on Your Case
If detention has extended for a long period, this is important evidence that release should be granted. Each subsequent detention review provides an opportunity to argue that detention is no longer justified because removal is not reasonably foreseeable.