Attending a Detention Review

Why You May Be Detained

Immigration detention is governed by sections 55 to 58 of the Immigration and Refugee Protection Act (IRPA). A CBSA officer's power to detain is set out in s. 55. A refugee claimant may be detained where the officer:

• Is not satisfied of the person's identity (s. 55(2)(b))
• Has reasonable grounds to believe the person is inadmissible and is unlikely to appear for examination, an admissibility hearing or removal (s. 55(1), 55(2)(a))
• Has reasonable grounds to believe the person is inadmissible and is a danger to the public (s. 55(1), 55(2)(a))
• Considers detention on entry necessary to complete the examination, or has reasonable grounds to suspect inadmissibility on security, human rights, criminality or organized criminality grounds (s. 55(3))

Under IRPA s. 55(4), the officer must notify the Immigration Division of the IRB without delay when a person is detained. Section 10 of the Canadian Charter of Rights and Freedoms gives everyone who is detained the right to be informed promptly of the reasons and to retain and instruct counsel without delay. Detention is then reviewed by the Immigration Division on the automatic schedule described below.

Types of Detention Reviews

IRPA s. 57 sets a fixed schedule of reviews before the Immigration Division of the IRB. The reviews happen automatically; the detained person does not have to request them. At every review the same legal test in s. 58(1) applies: the Division must order release unless it is satisfied that a listed ground exists.

Your Rights During Detention

CBSA's information sheet BSF5012, Information for People Detained Under the Immigration and Refugee Protection Act, and the IRB's detention review hearings page describe the following:

• ✓Reasons for detention: Charter s. 10(a) requires that a detained person be informed promptly of the reasons; CBSA states that a detained person receives notice of the reasons and updates on the case
• ✓Automatic detention reviews: Reviews at 48 hours, 7 days and every 30 days under IRPA s. 57
• ✓Counsel: Representation by counsel at the person's own expense (IRPA s. 167(1)), or through legal aid if the person qualifies under the provincial program (BSF5012)
• ✓A hearing: The detained person responds to the Minister's case with their own evidence and arguments (IRB); the Division must hold a hearing where practicable and give notice to the person and the Minister (IRPA s. 173)
• ✓Interpreter and medical care: BSF5012 states that a detained person who does not understand the language of the proceedings has the right to an interpreter, and can ask for medical attention
• ✓Contact with others: BSF5012 states that a detained person may contact their embassy or consulate, make local telephone calls at designated times, send and receive mail, and receive visitors under each facility's rules

Preparing for Your Review

Before your detention review, prepare as much as you can:

• 1.Contact a lawyer: The IRB notes that legal aid may be available through the province or territory or through community organizations. Counsel before the Immigration Division is otherwise at the person's own expense (IRPA s. 167(1)).
• 2.Learn the Minister's case: At the review, the CBSA representative (Minister's counsel) explains the reasons for detention and presents the evidence relied on. Knowing the ground alleged (identity, unlikely to appear, danger) shapes the response.
• 3.Prepare evidence: Section 245 of the Regulations lists strong ties to a community in Canada and past compliance with conditions among the factors on whether a person is unlikely to appear. Section 247 lists cooperation in establishing identity. Documents showing identity, a place to live, family in Canada and the status of the refugee claim are therefore relevant.
• 4.Find a bondsperson (if possible): Release may be ordered on a deposit or a guarantee. Under IRPR s. 47(2) a person who posts a guarantee must be a Canadian citizen or permanent resident, physically present and residing in Canada, and able to ensure that the released person complies with the conditions. The IRB states that a bondsperson can be a friend, family member, employer or community worker.
• 5.Be ready to explain: Being able to explain clearly where the person will live, who will support them, and why they will attend future proceedings addresses the factors the member must weigh.

Example Detention Review Dialogue

This shows language such as what you might hear during a detention review.

What Happens During the Review

According to the IRB, a member of the Immigration Division presides. Most Immigration Division hearings are open to the public. The hearing follows this order:

Possible Outcomes

The possible outcomes of a detention review are:

Getting Legal Help

Counsel can help present evidence and a release plan. Under IRPA s. 167(1) counsel is at the person's own expense; the following sources of lower-cost help exist:

• •Legal aid: Each province and territory runs its own legal aid program with its own eligibility rules; BSF5012 states a detained person may receive legal aid if they qualify
• •Community organizations: The IRB notes that community organizations may also help with legal assistance for detained people
• •Law school clinics: Some university law schools run clinics that take immigration matters
• •Authorized representatives: IRCC's authorized representative page lists who may be paid to represent a person: lawyers, Quebec notaries, licensed paralegals in Ontario and licensees of the College of Immigration and Citizenship Consultants

A person who has not been able to find counsel before a review can tell the member, who decides how to proceed. The review schedule in IRPA s. 57 continues to apply, so later reviews follow automatically.