Overview
Immigration detention is when a person is held in custody under the Immigration and Refugee Protection Act (IRPA) rather than under criminal law. Arrests and detention are carried out by officers of the Canada Border Services Agency (CBSA), not by IRCC. Detention may occur at different stages: on entry to Canada (IRPA s.55(3)), during the refugee claim process, or before 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
IRPA s.55 allows a CBSA officer to arrest and detain a permanent resident or foreign national where the officer has reasonable grounds to believe the person is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal or a proceeding that could lead to a removal order. A foreign national (other than a protected person) may also be detained without a warrant if the officer is not satisfied of their identity (s.55(2)(b)). On entry, a person may be detained so that an examination can be completed, or on reasonable suspicion of inadmissibility on security, human or international rights, sanctions or criminality grounds (s.55(3)).
Once detention is reviewed by the Immigration Division, IRPA s.58(1) requires release unless the Division is satisfied of one of the listed grounds:
- Danger to the public: the person is a danger to the public (s.58(1)(a)).
- Unlikely to appear: the person is unlikely to appear for examination, an admissibility hearing, removal from Canada, or a proceeding that could lead to a removal order (s.58(1)(b)).
- Ongoing inadmissibility investigation: the Minister is taking necessary steps to inquire into a reasonable suspicion of inadmissibility on grounds of security, violating human or international rights, sanctions, serious criminality, criminality, transborder criminality or organized criminality (s.58(1)(c)).
- Identity: the identity of a foreign national has not been established and either they have not reasonably cooperated or the Minister is making reasonable efforts to establish it (s.58(1)(d)).
Being undocumented or having made a refugee claim is not, on its own, a listed ground. A minor child may be detained only as a measure of last resort, taking into account the best interests of the child (IRPA s.60).
Your Rights During Detention
Even though you are detained, you retain important rights:
- Reasons for detention: everyone has the right on arrest or detention to be informed promptly of the reasons (Canadian Charter of Rights and Freedoms, s.10(a)).
- Counsel: everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right (Charter s.10(b)). Before the Immigration Division, a person may be represented by legal or other counsel at their own expense (IRPA s.167(1)); the IRB states that counsel may be a lawyer, a licensed immigration consultant, or a notary in Quebec, and that an unpaid friend or family member may also assist.
- Interpreter: a party or witness in any proceeding who does not understand or speak the language of the proceeding has the right to the assistance of an interpreter (Charter s.14). The IRB arranges interpreters for Immigration Division hearings on request.
- Review of detention: detention is reviewed automatically by the Immigration Division of the IRB on the schedule set out in IRPA s.57; a detainee does not need to request the first reviews.
- Habeas corpus: everyone has the right to have the validity of a detention determined by way of habeas corpus and to be released if the detention is not lawful (Charter s.10(c)).
When a person is taken into detention, the officer must without delay give notice to the Immigration Division (IRPA s.55(4)). Records of any concern about conditions or treatment are useful to counsel at the review.
Detention Reviews
A detention review is a hearing before the Immigration Division of the IRB to determine whether continuing detention is justified. Reviews happen automatically under IRPA s.57; the detainee does not have to apply for them.
- First review: within 48 hours after the person is taken into detention, or without delay afterward (IRPA s.57(1)).
- Second review: at least once during the 7 days following the first review (s.57(2)).
- Further reviews: at least once during each 30-day period following each previous review (s.57(2)).
At each review, IRPA s.58(1) directs the Immigration Division to order release unless it is satisfied that one of the listed grounds is made out. The CBSA, as the Minister's representative, presents the evidence and arguments for continued detention; the detained person and their counsel may present their own evidence and arguments. Different rules apply to designated foreign nationals (IRPA s.57.1).
Your Bail Hearing
A detention review is heard by a member of the Immigration Division of the IRB, not by a CBSA or IRCC officer. It is often compared to a bail hearing in criminal law. The detained person can testify, call witnesses and present evidence in support of release. The IRB states that most Immigration Division hearings are open to the public, except where the person has a pending refugee matter (IRPA s.166(c.1)).
Evidence that responds to the specific ground relied on is what the member weighs. Where identity is at issue, identity documents and cooperation with efforts to establish identity are relevant. Where the concern is that the person is unlikely to appear, evidence of ties to Canada, a fixed address, and a proposed bondsperson are relevant.
If release is not ordered, the next review follows automatically within 7 days and then within each following 30-day period (IRPA s.57(2)).
Alternatives to Detention
A CBSA officer may release a detained person before the first detention review if the reasons for detention no longer exist, and may impose conditions including a deposit or guarantee (IRPA s.56). When the Immigration Division orders release, it may impose any conditions it considers necessary, including the payment of a deposit or the posting of a guarantee (IRPA s.58(3)). The IRB lists examples of conditions such as:
- Providing a residential address and living at that address
- Reporting regularly to the CBSA
- A curfew or restrictions on where the person may live
- Restrictions on substance use
- A cash deposit (bond) or a guarantee posted by a third party (a bondsperson)
Failure to comply with a release condition can lead to re-arrest and a new period of detention, since IRPA s.55 allows arrest where an officer has reasonable grounds to believe the person is unlikely to appear.
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 to a CBSA office
- Remaining within a specified geographic area
- Residing at a specific address and notifying the CBSA 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 the CBSA's case, propose 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.