August 2, 2017 – The Federal Court says Canada’s immigration detention system is legal, provided the Immigration and Refugee Board manages it properly.
Justice Simon Fothergill says there is enough protection in place to ensure the policy is not against the Canadian constitution.
The judge found that cases where immigrants have been detained for long periods were down to bad management by the IRB and not a problem with the process. With the court of appeal there to provide oversight, the system is legal, the judge declared.
“The availability and effectiveness of these review mechanisms are sufficient to render the statutory scheme constitutional,” read Fothergill’s written judgement.
“If the (IRB) does not respect these standards in practice, this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional.”
The Federal Court heard several complaints about the process of detaining immigrants who are deemed a flight risk, or whose identity cannot be established.
Fothergill wrote that cases needed to be treated on an individual basis when deciding whether detention was necessary.
“The question of when detention for immigration purposes is no longer reasonable does not have a single, simple answer,” Fothergill’s judgement said. “It depends on the facts and circumstances of the case.”
Canada is one of the only developed nations in the world to detain immigrants indefinitely. The European Union places an 18-month limit for its members in special cases, with many of them setting their own lower limits. U.S. rules state that, after six months, if deportation is not ‘reasonably foreseeable’, the detainee should be released.
Canada Border Services Agency officials hold thousands of people each year if they are deemed dangerous, considered a flight risk, or their identity cannot be confirmed.
The average length of detention is three weeks, but a significant number of cases lead to months and years behind bars.
One common problem is an inability to prove citizenship, meaning the countries detainees claim as home are unwilling to take them back.
Overcrowding in immigration detention centres means many are held in high-security provincial jails, a practice that has drawn major criticism.
Other key parts of the argument include that monthly detention reviews are unfair and do not protect rights, that the CBSA has too much unchecked power to decide who is held where, as well as the lack of a limit on detention.
The CBSA recently released a new framework aimed at overhauling the immigration detention system.
The ‘National Immigration Detention Framework’ looks at ways to end the controversial practice of putting immigration detainees in provincial jails. It also looks at ways to considerably drop the number of children held in immigration detention.
The document would represent a significant change in Canada’s immigration detention policies, although it is not a commitment by the CBSA. Instead, it is described as a statement of direction.
The document is the result of consultations conducted in 2016 with stakeholders.
“The CBSA is committed to informing and engaging Canadians on government programming and policy proposals,” the report reads.
“Input received through this important citizen engagement activity will help inform transformations of Canada’s immigration detention program.”
Why Are Immigrants Detained?
Immigrants are detained if:
- They are deemed dangerous.
- They are a flight risk.
- They are unable to prove their identity.
The federal government is concerned that if it set a limit on immigration detention, detainees would simply not cooperate until that limit was reached.
The report reads: “Constructive input from stakeholders and Canadians on the new National Immigration Detention Framework is critical to establishing a detention program that reflects Canadian democratic values ― one that is better, fairer and provides humane and dignified treatment of individuals while upholding public safety.”
Support for ending the use of jails has gathered pace after three immigration detainee deaths in 2016 and 15 in total since 2000.
Human rights groups have also raised concerns over the detention of migrant children.
More than 100 senior Ontario lawyers in 2016 signed an open letter to Yasir Naqvi, Ontario Community Safety and Correctional Services Manager, expressing concerns that detainees are having their basic human rights violated.
The letter read: “We are gravely concerned that there are no public laws or regulations governing when and in what circumstances an immigration detainee can be transferred to, and incarcerated in, a provincial jail.” It added that a third of the 7,300 immigrants in custody in 2014 were being housed in provincial jails.
The federal government announced in August 2016 it would spend $138 million on improving Canada’s immigration detention system.
New, bigger holding centres in Laval and Vancouver will command most the spending, as the government looks to reduce the number of detainees housed in provincial jails.
Community monitoring programs are also set to be used more.
The report reads: “Expanding the availability and use of detention alternatives, working closely with trusted partners, improving immigration detention infrastructure and thoroughly reviewing detention policies and standards are critical to transforming Canada’s immigration detention program.”
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