Immigration Detention Review Hearing in Canada

What is immigration detention?

Immigration detention is governed by the Immigration and Refugee Protection Act (IRPA), in its Detention and Release provisions. The Act lets an officer arrest and detain a permanent resident or foreign national in the situations listed below.

Why can someone be detained?

The Act sets out several routes into detention:

• With a warrant. An officer may issue a warrant to arrest and detain a permanent resident or foreign national where the officer has reasonable grounds to think the person is inadmissible and is either dangerous or a flight risk (IRPA s. 55(1)).
• Without a warrant. A foreign national who is not a protected person can be detained without a warrant on similar grounds, or where identity is not established to the officer's satisfaction (IRPA s. 55(2)).
• On entry. A person may be detained on arrival if an officer considers it necessary to complete the examination, or has reasonable grounds to suspect inadmissibility on certain grounds such as security or serious criminality (IRPA s. 55(3)).

When someone is detained, the officer must give notice to the Immigration Division without delay (IRPA s. 55(4)). An officer can also order release before the first review if the reasons for detention no longer exist, and may attach conditions, including a deposit or an assurance of compliance (IRPA s. 56(1)).

When is an immigration detention review hearing held in Canada?

The Immigration Division, one of the Divisions of the Immigration and Refugee Board, is the body that reviews the reasons for detention (IRPA s. 54). The Act sets the timing:

For each review, an officer brings the person to the Division, or to another place that the Division names (IRPA s. 57(3)).

A different timetable applies to "designated foreign nationals" aged 16 or over: a first review within 14 days, then reviews at six-month intervals (IRPA s. 57.1(1) and (2)). For that group the release rule also differs (IRPA ss. 56(2) and 58(1.1)). Whether that group applies is a question for a lawyer.

A party can also ask in writing for a review sooner than the seven-day or 30-day point. The Division may allow this if new facts are put forward that support an earlier review (Immigration Division Rules, Rule 9).

What does the Immigration Division decide?

The Division must order release unless, taking prescribed factors into account, it is satisfied that one of these applies (IRPA s. 58(1)):

1. the person poses a danger to the public;
2. the person is unlikely to show up for an examination, a hearing or removal, or for a proceeding that could end in a removal order;
3. the Minister is still looking into a reasonable suspicion that the person is inadmissible on grounds such as security or serious criminality; or
4. the Minister considers that identity is not yet established but could be, and either the person has not cooperated reasonably or the Minister is making reasonable efforts to establish it (the Act words this ground differently for some designated foreign nationals).

In short, the wording of s. 58(1) starts from release unless one of these grounds is made out. The Division may also order detention for a person who is under examination, facing an admissibility hearing or subject to a removal order, if it is satisfied of danger or flight risk (IRPA s. 58(2)).

What factors does the Division weigh?

The Regulations list factors for each ground (IRPR s. 244).

• Flight risk. These include compliance with earlier departure orders, appearances and conditions; any earlier avoidance of examination or escape; involvement in smuggling or trafficking operations; and strong community ties in Canada (IRPR s. 245).
• Danger to the public. These include certain convictions in Canada or abroad, association with a criminal organization, and engagement in smuggling or trafficking (IRPR s. 246).
• Identity. These include cooperation in providing identity evidence, destruction of documents, fraudulent documents, and contradictory information (IRPR s. 247(1)).

If grounds for detention are found, further factors apply before the decision: the reason for detention, how long it has lasted, how long it is likely to continue, unexplained delays or lack of diligence by either side, the existence of alternatives to detention, and the best interests of an affected child under 18 (IRPR s. 248).

Release conditions and immigration bonds

If the Division orders release, it may impose any conditions it considers necessary. The Act specifically mentions a money deposit or a posted assurance that the conditions will be kept (IRPA s. 58(3)). The Regulations make the existence of alternatives to detention one of the factors the Division considers (IRPR s. 248).

In security-related cases, the Act also requires certain prescribed conditions to be imposed on release (IRPA s. 58(5); IRPR s. 250.1).

Children and people who may need a representative

The Act sets out the principle that detaining a child under 18 should be a last resort (IRPA s. 60). The Regulations list additional considerations for minors, including alternative care arrangements, expected length, and conditions at the facility (IRPR s. 249), and factors for judging a child's best interests (IRPR s. 248.1).

If the person is under 18 or unable, in the Division's opinion, to appreciate the proceedings, the Division must designate a representative (IRPA s. 167(2)). Counsel who believes this is needed must tell the Division without delay (Immigration Division Rules, Rule 18).

What happens at a detention review?

1. Information is exchanged. The Minister must give the Division and the detained person key information, such as the place of detention, the dates and the provision of the Act relied on. For a 48-hour review this is due as soon as possible. For seven-day and 30-day reviews it is due at least three days before (Immigration Division Rules, Rule 8).
2. Documents are shared. A party who wants to rely on a document must give the other side and the Division a copy, as soon as possible for 48-hour and seven-day reviews, and otherwise at least five days before the hearing (Rule 26).
3. Language and interpreter. A person can ask in writing for an interpreter and say which language or dialect (Rule 17).
4. Representation. A person may be represented by counsel at their own expense (IRPA s. 167(1)).
5. Decision. The member must tell the parties the decision at the end, and sign and date a written order for detention or release. Written reasons can be requested orally at the end of the review or in writing within 10 days (Rule 11).

Can a detention decision be challenged in court?

Judicial review in the Federal Court is available for matters arising under the Act, and it starts with an application for leave (IRPA s. 72(1)). For a matter arising in Canada, the application must be filed and served within 15 days after the person is notified or becomes aware of the matter (IRPA s. 72(2)(b)). That period is short, and the real deadline turns on the facts, so a lawyer should confirm it right away.

Because reviews recur at least every 30 days, a lawyer can explain how a court application and the ongoing reviews fit together. Related guides cover Federal Court judicial review and the pre-removal risk assessment.

When it is worth talking to a lawyer

Legal advice is typically sought in situations like these:

• CBSA has detained someone, or issued a warrant, and a first review is coming within 48 hours;
• a detention review decision has been made and a short court deadline may be running;
• someone is considering offering a deposit or giving an assurance and wants to understand what that involves;
• a removal order, a PRRA, or a refugee claim is also in play;
• the detained person is a minor, has a medical or mental-health condition, or may need a designated representative; or
• the reasons for detention involve identity, criminality or security allegations.

What to gather

• The detained person's full name, date of birth, CBSA or IRCC file number and place of detention
• Any notices, warrants or reports provided at the time of arrest
• Passport, travel and identity documents, or proof of efforts to obtain them
• Proof of address, family ties, employment and community ties in Canada
• Details of anyone offering a release plan, including a possible deposit
• Medical records, and school or care details for any children affected