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IMMIGRATION DETENTION REVIEW

Immigration detention in Canada is a complex and challenging aspect of the immigration system, raising significant legal and human rights considerations. Detention reviews, conducted by the Immigration Division of the Immigration and Refugee Board of Canada (IRB), play a crucial role in determining the lawfulness and necessity of an individual's detention. The authority to detain individuals for immigration reasons is governed by the Immigration and Refugee Protection Act (IRPA). Sections 55 to 58 of the IRPA outline the conditions under which individuals may be detained, emphasizing the importance of the least restrictive measures. Detention reviews are integral to ensuring compliance with Canada's legal obligations and protecting individuals' rights.

POSSIBLE REASONS FOR DETENTION:

The CBSA representative holds the authority to request the Immigration Division member to maintain a person’s detention based on the following beliefs:

  • Danger to the public:
  • To substantiate its stance, the CBSA can provide instances such as an individual’s association with criminal organizations, ongoing or past criminal convictions, charges for certain offenses (e.g., sexual, drug-related, violent, or weapons-related), and any other behavioral patterns indicating potential danger. Detainees have the right to present their own evidence and arguments to contest these claims.

  • Risk of Non-Appearance:
  • Another grounds for detention lie in the CBSA’s belief that the person is likely to evade immigration hearings or removal from Canada. The CBSA may cite instances where the individual failed to appear for legal matters, violated conditions, entered a country illegally, or escaped from custody. Detained persons can counter these assertions with their own evidence demonstrating their commitment to compliance.

  • Identity Verification Concerns:
  • If the detained person’s identity is not immediately established due to the absence or questionable authenticity of identity documents, the CBSA may seek to prolong detention until identity verification is achieved. The onus is on the person to assist the CBSA in confirming their identity by obtaining relevant documents and providing information.

  • Inadmissibility for Security Reasons, Violation of Human Rights or Criminality:
  • The CBSA might assert that the person is potentially inadmissible to Canada due to security reasons or violations of human or international rights, serious criminality, criminality, or organized criminality. In such cases, the Immigration Division member can only assess the reasonableness of the CBSA’s suspicion and its efforts to investigate, without delving into the actual determination of inadmissibility.

INITIATING A DETENTION REVIEW:

Detention reviews are typically triggered when an individual is detained by the Canada Border Services Agency (CBSA) for immigration reasons. The first review must occur within 48 hours of detention, followed by subsequent reviews at specified intervals. The IRB’s Immigration Division oversees these reviews, providing an impartial assessment of the necessity and justification for continued detention.

WHAT HAPPENS DURING DETENTION REVIEW?

  • CBSA Notification:
  • The CBSA communicates with the Immigration Division of the IRB upon detaining an individual.

  • Detention Review Entitlement:
  • Individuals subjected to detention have the right to a review hearing within 48 hours or as promptly as possible. The CBSA retains the option to release the person before this hearing. In cases where release doesn’t occur, the Immigration Division of the IRB conducts the review.

  • Notice of Detention Review:
  • The Immigration Division issues a notice to the detained individual, specifying the time and location of the detention review. Simultaneously, the detained person should be provided with copies of documents that the CBSA intends to use as evidence.

  • Flexible Hearing Methods:
  • Detention review hearings can be conducted via videoconference, telephone, or in-person, providing flexibility in the proceedings.

  • Role of the Immigration Division Member:
  • The individual overseeing the hearing, referred to as a member of the Immigration Division, holds the authority to decide whether the detained person will be released or continue to be held in detention.

DETENTION REVIEWS:

  • Release Before First Detention Review: Before the initial detention review, there is a possibility of release if a CBSA officer determines that the grounds for detention no longer apply or if concerns can be alleviated by posting a bond.
  • Within Forty-Eight (48) Hours: The Immigration Division of the Immigration and Refugee Board (IRB) conducts the first detention review promptly, typically within 48 hours or as soon as possible thereafter. The decision-maker, known as the “member,” is independent of the CBSA, ensuring an impartial assessment.
  • Seven (7) Days Review: In the event that detention continues, a subsequent review is conducted by the IRB within the next seven days. This review serves as an additional layer of scrutiny, reevaluating the necessity of continued detention.
  • Every Thirty (30) Days: Following the seven-day review, the IRB mandates that your case undergoes periodic reviews, occurring at least once every 30 days. These recurring reviews provide ongoing assessment and oversight to determine the appropriateness of maintaining detention.

FACTORS CONSIDERED IN REVIEWS:

The Immigration Division considers various factors, including the likelihood of appearance at future proceedings, potential danger to the public, and the existence of alternatives to detention. Evidence, including affidavits and documentation, is presented to support or challenge these factors.

RIGHTS OF DETAINED INDIVIDUALS:

Detained individuals have the following rights:

  • Representation Rights:
    • As the detainee, you have the right to legal representation at your own expense or may qualify for legal aid, with information provided about available legal aid services.
    • Alternatively, you can designate a friend, organization member, or association representative to act on your behalf.
  • Right to Reasons:
    • The detainee is entitled to be informed about the reasons for their detention.
  • Contact Rights:
    • The detainee has the right to contact their embassy or a representative from their country’s consulate upon request. In cases where a consular representative is undesired, the option to inform the office of the United Nations High Commissioner for Refugees in Canada about the detention is available.
  • Language Assistance:
    • If the detainee does not comprehend or speak the language used in proceedings (e.g., detention reviews, immigration hearings), the right to assistance from an interpreter is ensured.
  • Special Considerations for Minors:
    • In cases where the detainee is a minor under 18 or deemed incapable of understanding the proceedings by the Immigration Division of the Immigration and Refugee Board (IRB), a designated representative may be appointed to provide assistance and guidance throughout the proceedings.

RELEASE CONDITIONS:

Following the review, a member of the Immigration Division of the IRB will issue an order either continuing your detention or releasing you from detention. The IRB has the authority to impose conditions on your release, which may include:

  • Deposit:
  • Money provided to ensure compliance with release conditions. Typically returned six to eight weeks after the case conclusion if all release conditions are met.

  • Guarantee:
  • A commitment without a deposit. A Canadian citizen or permanent resident acts as a guarantor, pledging to pay a specified sum if you fail to adhere to release conditions. Guarantors usually remain bound until the resolution of your immigration case.

CONCLUSION:

Governed by the Immigration and Refugee Protection Act (IRPA), Sections 55 to 58 outline the parameters for detention, emphasizing the importance of the least restrictive measures and safeguarding individuals’ rights. Detention reviews serve as a crucial mechanism to ascertain the lawfulness and necessity of detention, ensuring compliance with legal obligations. The multifaceted reasons for detention, initiation of reviews, and the comprehensive considerations during the process underscore the significance of these procedures in maintaining a fair and just immigration system in Canada.

Legal representation during detention reviews is pivotal, ensuring that individuals have a robust defence and that the principles of fairness and justice are upheld throughout the proceedings. As Canada continues to refine its immigration policies, a comprehensive understanding of detention reviews remains paramount for all stakeholders involved.

At Kozyrev Law, we are committed to providing unwavering support and expert legal guidance to individuals navigating the intricate landscape of Canadian immigration, with a particular focus on immigration detention and detention reviews. Our dedicated team at Kozyrev Law understands the profound implications of detention reviews on individuals’ lives. We strive to ensure that our clients receive meticulous and personalized representation, upholding their rights and advocating for fair and just outcomes throughout the immigration detention process. With a client-centric approach, Kozyrev Law is your trusted partner in addressing the legal complexities of immigration detention in Canada.

Note: The information presented in this article is not intended to constitute legal advice. It is recommended to refer to official government publications and guidelines for accurate and up-to-date information. For obtaining legal advice tailored to the specific circumstances of your case, it is advised to consult with a qualified professional.

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