Overview
Immigration detention is when the Canadian government holds a person in custody on the basis of immigration law. Detention may occur at different stages: when someone first arrives in Canada, during the refugee claim process, or prior to removal from Canada.
Immigration detention is civil in nature, not criminal. However, it can involve significant restrictions on freedom and access to family and work. Understanding your rights and the legal mechanisms to challenge detention is essential.
Reasons for Detention
Under Canadian immigration law, you can be detained for one of three reasons:
- Identity: To verify your identity or determine whether you are the person named in a removal order.
- Flight Risk: If IRCC believes you are unlikely to appear for removal or other immigration proceedings.
- Public Safety/Security: If you pose a danger to the public or are a security risk, including if you are subject to an arrest warrant or have a criminal conviction.
IRCC must establish one of these grounds to justify detention. Simply being undocumented or having a refugee claim is not sufficient grounds for detention, though you may be detained initially while identity is being verified.
Your Rights During Detention
Even though you are detained, you retain important rights:
- Right to Know Reasons: You must be told why you are being detained and the grounds upon which detention is justified.
- Right to Legal Counsel: You have the right to contact a lawyer of your choice and to have a lawyer present during interviews.
- Right to Interpreter: If you do not speak English or French, you have the right to a free interpreter.
- Right to Challenge Detention: You can request a detention review by the Immigration Division of the IRB.
- Right to Humane Treatment: You must be treated with dignity and housed in appropriate conditions.
You also have the right to communicate with family, access healthcare, and have access to basic needs. If your rights are violated, document everything and inform your lawyer.
Detention Reviews
A detention review is a hearing before the Immigration Division of the IRB to determine whether continuing detention is justified. You have the right to request a review, and the timing depends on when you were detained.
- First Review: Must be held within 30 days of being detained (or 48 hours if you are detained at a port of entry without a previous encounter with IRCC).
- Subsequent Reviews: If detention continues, subsequent reviews must be held every 30 days for the first six months, then every 60 days thereafter.
At a detention review, IRCC must establish that detention remains justified on one of the three grounds. The burden is on IRCC to prove the case, not on the individual to prove that release should occur.
Your Bail Hearing
During a detention review, you will have a hearing before an Immigration Officer or IRB Member. This is similar to a bail hearing in criminal law. You can testify, call witnesses, and present evidence to support your release.
Preparation to address each of the three detention grounds is important. For example, if identity is at issue, gathering documents proving identity is helpful. If flight risk is the concern, showing ties to Canada (family, employment offers, community contacts) is relevant.
Legal representation at this hearing is important. Even if the first hearing does not result in release, subsequent opportunities to request review will occur every 30 or 60 days.
Alternatives to Detention
Rather than detaining you, IRCC may impose conditions to ensure you appear for proceedings and do not pose a risk. Common alternatives to detention include:
- Release on your own recognizance (a promise to comply with conditions)
- Release with a deposit or guarantee
- Reporting conditions (reporting to IRCC at regular intervals)
- Residence requirements (remaining at a specific address)
- Supervision by a bondsperson (a third party who agrees to monitor compliance)
If you are released with conditions, it is essential to comply with them fully. Any breach may result in immediate return to detention and jeopardy to your immigration case.
Release Conditions
If you are released with conditions, you will receive a document outlining what you must do. Common conditions include:
- Reporting at specified times (weekly, monthly, etc.) to an IRCC office
- Remaining within a specified geographic area
- Residing at a specific address and notifying IRCC of any change of address
- Surrendering your travel documents (passport)
- Refraining from criminal activity or further immigration violations
- Providing regular proof of residence or employment
Failure to comply with any condition can result in being taken back into custody. If a condition cannot be complied with (for example, if cost of living at the residence specified is prohibitive), legal assistance regarding modification should be sought.
Getting Legal Help
If detained, seeking legal help is important. Many community legal clinics, immigration NGOs, and law schools provide free or low-cost legal assistance. Some organizations specialize in detention cases.
A lawyer can help you prepare for your detention review, gather evidence, identify weaknesses in IRCC's case, negotiate release conditions, and help you navigate the ongoing review process. Detention can be costly emotionally and financially, and legal assistance can significantly improve your chances of release.