A phone call from a detention centre, or from a family member who has just watched someone taken from an airport secondary inspection area, is usually the first time most people think about immigration detention. What follows moves quickly, and the first few days matter more than anything that comes after.
This post explains why the Canada Border Services Agency (CBSA) detains people, how the review process works, and what the Immigration Division actually decides at each hearing.
A companion post covers how to prepare a release plan.
Why the CBSA detains people
The Immigration and Refugee Protection Act allows an officer to arrest and detain a foreign national or permanent resident on a small number of grounds. The most common are:
- Flight risk: The officer believes the person is unlikely to appear for an examination, hearing or removal.
- Danger to the public: Usually tied to a criminal record or outstanding charges.
- Identity: The officer is not satisfied of the person’s identity, and the person is not cooperating in establishing it.
- Examination not yet complete: The CBSA needs more time to decide whether the person is admissible, most often where security, human rights or organized crime concerns are being investigated.
Detention can happen at a port of entry, during an inland arrest, or when someone reports to the CBSA for a scheduled interview. People are held in an immigration holding centre where one exists, or in a provincial jail where it does not.
The review cycle: 48 hours, 7 days, 30 days
Detention is never meant to be indefinite, and the Act builds in a fixed schedule of reviews before the Immigration Division (ID) of the Immigration and Refugee Board.
- First review within 48 hours of detention (or as soon as possible after that). This is the earliest opportunity to argue for release, and in practice it is often the hardest hearing to win because there has been little time to gather evidence.
- Second review within 7 days of the first.
- Further reviews every 30 days for as long as detention continues.
A detained person can also ask for an early review if something material changes, for example a bondsperson becoming available or new identity documents arriving.
Each review is a fresh hearing.
The member is not bound by the previous decision, although the Federal Court of Appeal has said a member who departs from an earlier decision should explain why.
In practice, the longer detention goes on, the more the burden shifts: the Minister must show clear and compelling reasons why continued detention is justified, and the member must weigh the length of detention and the likelihood of removal actually happening.
What the member actually decides
A detention review is not a hearing about whether the person is inadmissible, whether their refugee claim has merit, or whether they should be removed. Those questions are decided elsewhere. The ID member decides one thing: does a ground for detention still exist, and if so, are there conditions that would address it?
The factors the member must consider include:
- the reason for detention and how strong the evidence is on that ground;
- how long the person has already been detained and how much longer detention is likely to last;
- whether the person or the Minister has caused delay;
- whether alternatives to detention are available; and
- the best interests of any child directly affected.
The Minister’s counsel presents the CBSA’s position first.
The person concerned (i.e., the detained person), or their lawyer, responds.
Witnesses, including proposed bondspersons, can testify. Interpreters are provided.
Alternatives to detention
The CBSA runs a formal Alternatives to Detention program. Depending on the concern the member is trying to address, release may be ordered on conditions such as:
- reporting to the CBSA in person or by voice-reporting at set intervals;
- residing at a fixed address and notifying the CBSA of any change;
- a cash deposit or a performance bond posted by a bondsperson;
- community case management and supervision through a contracted agency; and
- in a minority of cases, electronic monitoring.
A bondsperson is someone, usually a Canadian citizen or permanent resident, who agrees to supervise the person and to forfeit money if the conditions are breached. The member will want to know the bondsperson’s relationship to the detainee, their ability to actually exercise influence, their own immigration and criminal history, and where the money comes from.
Beyond the ID
If the ID orders release and the Minister disagrees, the Minister can seek judicial review at the Federal Court and ask for a stay of the release order.
If the ID orders continued detention, the person can seek judicial review as well, and in some provinces may apply to a superior court for habeas corpus.
The Supreme Court of Canada confirmed in 2019 that habeas corpus remains available to immigration detainees in appropriate cases.
Why the first 48 hours matter
Most of the work in a successful detention review happens before the hearing: locating a suitable bondsperson, gathering proof of address, obtaining identity documents, and preparing the detained person to answer questions consistently. That work is much easier when a lawyer is involved from the first review rather than the third.
If a family member has been detained, contact us as early as possible. We represent clients at detention reviews across Ontario and can attend the first hearing on short notice.
You can book a consultation here.
This post is general information about Canadian immigration law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.