National Policies on Immigration Detention and the Global Compacts: A Comparative Analysis of Canada and France

Guest post by Camille Lefebvre and Silviana Cocan. Camille Lefebvre is a doctoral candidate at the Faculty of Law of Leiden University, in a joint program with Université Laval. After completing a clerkship at the Federal Court of Appeal of Canada and a Judicial Fellowship at the International Court of Justice, she is now a member of the Board of Directors of the Canadian Council on International Law. She is particularly interested in the implementation of international human rights law and international refugee law, crimmigration and national security (X: @CamLefebvre1). Silviana Cocan is a lecturer at Université de Montréal Faculty of Law and a BCL/JD candidate at McGill University Faculty of Law. She holds a double PhD in international law from Université Laval and Université de Bordeaux. Her doctoral thesis on judicial dialogue and the interpretation of the prohibition of torture was published by LGDJ in 2020 after winning the Louis Joinet thesis prize from the Francophone Institute for Justice and Democracy and the thesis prize of the Quebec Society of Comparative Law. Her research interests focus on public international law, international human rights law, comparative law and international refugee and migration law. This is the second post in the Border Criminologies' Global Compacts Thematic Series. 

Migrants are often portrayed as criminals and security threats, a depiction employed by governments and the media that further normalises restrictive migration policies. These policies are usually justified with the need to protect citizens from harm, even if this harm is only based on suspicion of criminal activity or fear of a threat to national security. In this blog post, we explain how Canada and France have engaged into multilateral discussions on the regulation of migration and the protection of refugees through soft law instruments, and the resulting impacts of these discussions on ongoing national practices.

As detention is an example of an administrative measure that perpetuates the criminalisation of migrants, we focused on Canada and France’s detention regimes. Indeed, this type of measure is used to exclude and alienate certain categories of people. Through immigration detention, states control foreigners entering their territory, to remove them when they are considered unwanted. Scholars such as Emma Kaufman and Mary Bosworth argue that the concept of ‘’foreignness’’ has become the dominant feature of incarceration, rather than wrongdoing, and that the symbolic utility of detention is, in fact, a way of demonstrating state control and the ability to protect citizens. Others such as Delphine Nakache, Leanne Weber and Rebecca Powell have argued that the dominant concept has become the ‘’cultural other’’ who must be excluded from society, and that the underlying goals of inclusion and exclusion, separating ‘’them’’ from ‘’us’’ through detention, further contribute to the criminalisation of migrants. 

Following the adoption of the Global Compacts in 2018, many were hopeful that these instruments would improve the migration regime. In particular, objective 13 of the Global Compact on Migration (GCM) embodied states’ commitment to use migration detention as a measure of last resort and work towards noncustodial alternatives, in accordance with international human rights law. More specifically, states agreed that detention should be ‘’non-arbitrary’’, ‘’based on law, necessity, proportionality and individual assessments’’ and ‘’for the shortest possible period of time,’’ irrespective of the moment when detention occurs.

Five years later, we examined how – if at all – international standards stemming from the Global Compacts were implemented at the national level in the Canadian and French detention regimes. We analysed these two States’ policies, legislation, and discursive strategies, and found discrepancies between states’ international commitments and their domestic implementation. Rather, their motivation for signing the GCM was useful in foreign policy and geopolitics, but implementation was not a priority domestically.

For its part, Canada has supported the adoption of the Global Compacts on the international scene. It accepted an invitation from the UN Network on Migration to be a GCM champion country  and, in November 2020, it participated in a regional review process of the GCM for Europe and North America on a voluntary basis. The Canadian government’s position was that existing Canadian policies and programmes were already aligned with all 23 GCM objectives. However, our research shows that Canada has not implemented some of the GCM objectives domestically because of the potential political backlash, while continuing to use its position as a champion country to lobby sending countries (countries that export migrants) to change their practices. In Canada today, individuals are still being detained for immigration-related purposes (not a criminal offence), which amounts to detention for administrative procedures. The government justifies its use of administrative detention for efficiency and financial reasons. Children are also housed in closed facilities, disregarding the principle of the best interests of the child. Administrative detention for identification issues is routine, poor conditions in detention centres are pervasive, alternative measures are difficult to access and there is still an absence of a maximum duration of confinement. As Idil Atak and Delphine Nakache explain, Canada portrayed ‘’any positive migration-related domestic development … as evidence of its commitment to aligning with the GCM objectives’’, while failing to implement the GCM domestically. 

France has also instrumentalized the GCM as a tool for its foreign policies and within the European Union (EU) regional and global agendas, pushing for the externalization of migration control and strengthening the cooperation with States of origin, transit and destination of migrants. The new EU Pact on Migration and Asylum was adopted on April 10, 2024, further reflecting member states’ will to control migration through restrictive policies. The implementation of the New EU Pact will undermine refugee rights through expeditive examinations of their claims and by using immigration detention at EU external borders for screening and registration purposes. 

In France, immigration detention is part of its migration policy and deterrence strategy, institutionalized in state practice and legislative and administrative frameworks. The French government considers it an effective tool to control irregular migration and uses it as a deportation management instrument. Despite important backlash from civil society, France maintains the need to detain families and children, which violates the principle of the best interests of the child. Indeed, according to the relevant legislation, minors can be detained if they are accompanying an adult foreigner that is placed in detention. Paradoxically, while signing the Global Compacts, France adopted legislation legitimizing the detention of children and extending immigration detention periods. For adults already on French territory, the period of detention was extended in 2018 from 45 to a maximum of 90 days. This period can even be extended to 210 days on the grounds of suspected terrorism.

Holding measures in ‘waiting zones’ (defined by the French Interior Ministry as various ports of entry such as airports, train stations, and harbours open to international traffic) can be implemented for up to 26 days. France was condemned repeatedly by the European Court of Human Rights for violations of the prohibition of torture and other inhuman or degrading treatment or punishment. Multiple violations occurred during administrative detention so as to facilitate expulsion measures, showing how systemic issues still permeate the French immigration detention regime. 

It is true that the Global Compacts were never meant to be binding. The flexibility of soft law can enhance state cooperation and encourage collaboration – but without accountability mechanisms, it also allows for the continuation of national practices that violate human rights. Both Canada and France have engaged in multilateral discussions to define a global strategy for migration governance. However, while promoting and championing cooperation of migration on the international scene, our research shows a lack of domestic implementation that perpetuates the circumvention of binding international obligations within their detention regimes.

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