Why You May Be Detained
Immigration detention is used when authorities believe there is a valid reason to detain someone who is in the immigration process. As a refugee claimant, you could be detained if authorities believe:
- You cannot establish your identity
- You are a flight risk (likely to leave Canada to avoid your claim being processed)
- You pose a security risk to Canada
- You are unlikely to appear for your immigration proceedings
If you are detained, you have the right to be informed of the reasons for your detention and the right to know what evidence is being used against you. You also have the right to a detention review to determine whether continued detention is justified.
Types of Detention Reviews
There are three types of detention reviews, each with different timing:
48-Hour Detention Review
This is the first review, which must occur within 48 hours of being taken into custody (not including weekends and holidays). At this review, the burden is on the government to justify continued detention. If detention has not occurred within 48 hours, release is required.
7-Day Detention Review
If you remain detained after the 48-hour review, you have the right to another review within 7 days. At this review, the government still bears the burden of justifying detention.
30-Day Detention Review
If detention continues beyond 30 days, the burden of proof shifts. After 30 days, YOU must show that detention is no longer justified. This is a significant change in the legal test. Subsequent reviews occur every 30 days after this point.
Your Rights During Detention
Even in detention, you have important legal rights:
- ✓Right to know reasons: You must be told why you are being detained
- ✓Right to a detention review: You have the right to a review of your detention
- ✓Right to legal counsel: You can consult with a lawyer
- ✓Right to a fair hearing: You can present your case at the review
- ✓Right to reasonable conditions: You must be held in humane conditions
- ✓Right to contact family: You can communicate with family and friends
Preparing for Your Review
Before your detention review, prepare as much as you can:
- 1.Contact a lawyer: Many organizations provide free legal help for detained immigrants. Legal aid in the user's province or refugee advocacy organizations can be contacted for assistance.
- 2.Get information from detention staff: Ask what evidence the government is using to justify your detention. You have the right to know this information.
- 3.Prepare your evidence: Gather documents showing ties to Canada (lease, job offer, family members, community connections), your identity documents, and evidence of your refugee claim status.
- 4.Find a surety (if possible): A surety is someone who promises to supervise you if you are released. This person must be a Canadian resident with stable income and ties to the community.
- 5.Practice your story: Readiness to explain the situation clearly is important. Clear explanation of why remaining in Canada is the intention and why release is justified is advisable.
Example Detention Review Dialogue
This shows language such as what you might hear during a detention review.
Review Officer:
"Good morning. This is your 7-day detention review. I will decide whether you should remain in detention. Can you tell me why you believe you should be released?"
Language such as:
"I believe I should be released because I have family in Canada who can help me. I have a job offer and a place to stay. I want to go through my refugee claim process properly. I am not a flight risk because my claim is important to me."
Review Officer:
"The government says you cannot establish your identity. Can you explain what identity documents you have?"
Language such as:
"I have my passport, but it is difficult to use because my government is looking for me. However, I have documents from organizations in my country that confirm my identity. My sister in Toronto can also provide a letter confirming who I am."
Review Officer:
"Do you have someone in Canada who would supervise you if released?"
Language such as:
"Yes, my sister is here. She has a stable job and owns her home. She is willing to supervise me and ensure I comply with any conditions of release."
What Happens During the Review
A detention review hearing typically follows this structure:
1. Government's Position
An immigration officer or lawyer will explain reasons for continued detention. Evidence such as identity concerns, concerns regarding leaving Canada, or security issues will be presented.
2. Your Response
You (with or without a lawyer) will explain why detention is not justified. You can present evidence such as documents proving identity, job offers, family ties, and a surety offer.
3. Surety Examination
If you have a surety, they will be questioned about their willingness and ability to supervise you. The review officer will ask about their income, residence, and ability to ensure you comply with release conditions.
4. Review Officer's Decision
The review officer will issue a decision, either ordering your release (with or without conditions) or directing that you remain in detention. The decision will be provided immediately or within a few days.
Possible Outcomes
There are several possible outcomes from your detention review:
Release Without Conditions
The review officer may order your immediate release. You can walk out of detention.
Release with Conditions
You may be released but required to follow conditions such as reporting regularly to IRCC, residing at a specific address, or complying with a surety's supervision.
Continued Detention
The review officer may order you to remain in detention. You will have another review at the next scheduled interval (7 days, or 30 days if beyond the 30-day threshold).
Conditional Release with Recognizance
You may be released on the basis of a recognizance (a promise to comply with conditions). This may include a monetary deposit or a surety agreement.
Getting Legal Help
Having a lawyer at your detention review can significantly improve your chances of release. Many organizations provide free legal help for detained immigrants:
- •Legal Aid: Legal aid in the province provides free representation and can be contacted for assistance
- •Refugee advocacy organizations: Many organizations provide free legal clinics for detained immigrants
- •Law school clinics: University law schools often provide free legal services
- •Private lawyers: Some refugee lawyers work on contingency or reduced fees for detained clients
If you cannot find a lawyer before your review, ask the review officer if you can request an adjournment to allow time to get legal help.
Disclaimer: This information is provided for general informational purposes only and does not constitute legal advice. Detention reviews are complex proceedings. For advice specific to your situation, consult with a lawyer or legal aid provider immediately.