The injustice of immigration detention

This blog is part of our “focus on refugees” feature series highlighting LAO’s commitment to refugees and immigrants. Ongoing support from the federal and provincial government helps LAO provide essential services to individual refugees and also support test case litigation that can change the laws that affect refugees.

The Canada Border Services Agency (CBSA) detains refugees and immigrants, including children, in violation of their human rights. This is the first in a multi-part blog on why—and on what LAO and other concerned citizens are doing about it.

By Andrew Brouwer

On August 1, 2016, the government announced that it would invest in expanding immigration jails in British Columbia and Quebec.

But that won’t solve the real problem. We’ve just seen hunger strikes at jails in Lindsay and Toronto, and the protesters were not up in arms over the need to transfer refugees to nicer jails.

They were rallying against the Canada Border Services Agency (CBSA)’s routine practice of tossing refugee claimants and immigrants into Immigration Detention Centres and jails, and keeping them there for months and even years.

Other countries have a presumptive maximum period for detention. Canada does not. And our immigration adjudicators seem consistently unwilling or unable to recognize indefinite detention as a constitutional violation.

That is why Legal Aid Ontario, along with many others, is demanding that 90 days become the maximum amount of time refugee claimants or immigrants can be detained.

Why people are incarcerated

When people are convicted of a crime and are sentenced, they know how long they will be jailed. Refugees and immigrants detained under immigration law do not have that luxury.

Refugees, immigrants, visitors – anyone who is not a Canadian citizen – can be arrested and jailed by CBSA if, in an enforcement officer’s view, they are:

  • a flight risk
  • a danger to the public or to themselves
  • undocumented, i.e., they don’t have acceptable identification papers or their papers conflict with information the CBSA has on file.

What happens next

People who have been thrown in jail are entitled to appear before an immigration adjudicator 48 hours after their arrest. If they can’t persuade the adjudicator to let them go, they must appear again a week later. If that appearance fails too, the legality of their ongoing detention is reviewed every 30 days, even once it becomes evident that no further evidence is available.

There is no end in sight.

Worse yet, once a detainee has received two to three orders for continued detention, subsequent adjudicators just rely on the previous adjudicator’s decisions.

What we’re doing

LAO – and in particular the Refugee Law Office – is working with civil society groups and the new federal government to try and bring about a sea change in immigration detention in Canada.

In addition to advocating for a fixed, 90-day limit on immigration detention, we are calling for a ban on the detention of mentally ill detainees and children, as well as an end to the separation of children from their detained parents.

There are many viable, less-restrictive alternatives to detaining refugees and immigrants.

To begin with, there needs to be a culture shift at CBSA, away from the current over-reliance on arrest and detention. As well, better access to case management assistance will improve compliance with immigration rules and reduce the need for CBSA enforcement officers to get involved.

Where some sort of restrictions are necessary to ensure compliance, there should be a much great reliance on telephone reporting, and, if necessary, curfews, rather than detention. Where mental illness is involved, the answer is improved psychiatric care, not detention (which only exacerbates the situation).

What’s next

On August 15, the government announced that it would invest in a new National Immigration Detention Framework to enhance alternatives to detention, which would include a community supervision program and stakeholder consultations.

LAO and other stakeholders will be participating in those consultations, bringing forward concrete proposals to bring Canadian immigration detention practices into alignment with core Canadian values and with international human rights standards. We have a long way to go.

Andrew Brouwer is LAO’s senior counsel – refugee law and a certified specialist in citizenship and immigration law.