Immigration Division members hear the same argument at almost every detention review: “He has family here, he will show up.”
On its own, that sentence rarely gets anyone released. What persuades a member is a concrete plan that answers the specific concern the CBSA has raised, backed by documents and by people who are prepared to testify.
This post sets out what a release plan should contain. It assumes you have read our earlier post on how the detention review process works.
Start with the ground for detention
A release plan has to be built around the reason the person is being held. A plan that addresses flight risk does nothing if the real issue is identity, and vice versa.
- If the concern is flight risk, the plan needs to show a stable residence, a credible bondsperson, and a reason to believe the person will engage with the process rather than disappear from it.
- If the concern is danger to the public, the plan needs to address the underlying conduct: treatment, supervision, distance from the circumstances that led to the charges, and often a stronger bond.
- If the concern is identity, the most useful thing anyone can do is obtain documents: passports, national ID cards, birth certificates, school and employment records, and affidavits from people who can speak to who the person is. Evidence of cooperation with the CBSA also matters.
Read the Minister’s written submissions and the previous decision, if there is one, before drafting anything. The member’s reasons for continued detention tell you what the plan must overcome.
Choosing a bondsperson
The bondsperson is the centre of most release plans. A good bondsperson:
- is a Canadian citizen or permanent resident with a clean immigration and criminal record;
- knows the person concerned (i.e., the detained person) well enough that a promise to supervise them is believable;
- lives at or near the proposed residence, or can otherwise show how supervision would work in practice;
- can explain where the bond money comes from and show that losing it would matter to them; and
- is willing to testify and to be cross-examined by the Minister’s counsel.
A bondsperson who did not know about the person’s criminal history, or who cannot say what they would do if the person breached a condition, will usually hurt the case more than help it.
Prepare them. They should expect questions about their own status, their income, their relationship to the detainee, and their understanding of the obligations they are taking on.
A cash deposit is money paid up front and returned if conditions are met. A performance bond is a promise to pay if conditions are breached.
Members often ask for one or the other, and sometimes both. The amount should be meaningful relative to the bondsperson’s finances rather than large in absolute terms.
Residence and reporting
Provide a specific address, proof that the person can live there (a lease, a letter from the homeowner, utility bills), and a description of who else lives in the household. If the bondsperson does not live there, explain how they will stay in contact.
Offer a reporting schedule rather than waiting for the member to impose one. Weekly in-person reporting at a CBSA office is common at the outset; it can be relaxed later.
Supporting documents
A typical package includes:
- affidavits or sworn statements from the bondsperson and any other supporters;
- proof of the bondsperson’s status, employment and finances;
- proof of the proposed address;
- identity documents for the detained person, or evidence of efforts to obtain them;
- evidence of ties to Canada: family, employment history, community involvement, medical care;
- where relevant, letters from treatment providers, counsellors or programs the person has enrolled in; and
- documents showing the status of any pending immigration application or refugee claim.
Everything should be disclosed to the Minister’s counsel and the ID in advance, in accordance with the Immigration Division Rules.
Late disclosure is a common reason a hearing is adjourned, and an adjournment means more time in detention.
Preparing the detained person
The member will usually hear from the person directly. Consistency matters.
The account of how they entered Canada, why they missed an appointment, or what happened around a criminal charge should match what is in the file. Inconsistencies are treated as evidence of unreliability, which feeds directly into the flight-risk analysis.
The person should also be able to describe the plan in their own words: where they will live, who they will report to, and what they understand will happen if they breach a condition.
Length of detention and likelihood of removal
As detention continues, two arguments become more important. First, the length of time already served, and whether there is any realistic end in sight.
Second, whether removal is actually going to happen: if the person’s country of nationality is not issuing travel documents, or a legal process is standing in the way of removal, continued detention becomes harder to justify.
Members are required to weigh these factors, and a release plan at a later review should say so directly.
Getting help
A release plan is not complicated in concept, but assembling it under time pressure, from outside a holding centre, with a family that has never dealt with the system before, is hard. We prepare release plans and represent detained clients at every stage of the review cycle.
Book a consultation, and if the first 48-hour review is imminent, call the office directly.
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.