Changes to the Canadian Immigration Detention System

The Canadian detention estate is comprised of provincial correctional or remand facilities as well as three “immigration holding centres” located near the airports in Toronto, Montreal, and Vancouver. According to a UNHCR report, there were 9,423 immigration holds in Canada in fiscal year (FY) 2009-10, and 8,838 in FY 2010-11. From 2004-2011, less than half (43%) of immigration detainees were asylum seekers who had been found to qualify for refugee protection under the 1951 Refugee Convention or on the basis of other international obligations of non-refoulement. These numbers may be higher because the Canadian government does not include in its statistics minors accompanying a detained parent in Canadian immigration detention facilities. As the authors of a recent report on alternatives to detention note, a centrepiece of good practice in Canada is the automatic administrative review of immigration detention.

 

The Canadian detention system is set to undergo major changes stemming from Protecting Canada’s Immigration System Act (an amendment to the Immigration and Refugee Protection Act) which came into force in December 2012. A key Government of Canada objective for this piece of legislation is to deter large-scale smuggling operations. In his speech announcing Royal Assent to the Bill, the Minister of Citizenship, Immigration and Multiculturalism framed the changes as an effort to “maintain

In practice, the Protecting Canada’s Immigration System Act implements sweeping changes to the Canadian immigration detention system. It empowers the Minister of Public Safety to use his or her discretionary authority to designate two or more new arrivals as a group of “irregular arrivals.” The Minister may make these decisions on the basis of administrative convenience founded on inadmissibility requirements, or if the group is suspected of involvement in “smuggling.” If unsuccessful at gaining refugee or admissibility status within two weeks, the group of irregular arrivals – now called “designated foreign nationals” – will enter detention for a period of six months to one year with little opportunity for review. The principal exception is for persons aged 16 or older: the Minister will decide whether to detain the minors or to place them in foster care or the community. Since the Act was implemented, the Minister has employed the “irregular arrivals” designation once, in December 2012.

 

The Act’s ambiguous definitions and allocation of enhanced discretion and powers to the Canadian Minister of Public Safety raises several sets of questions. First of all, is it fair to constitute a “group” as the Act does? For instance, could the two or more irregular arrivals be a family or simply people who came together on their journey to Canada as a collective survival strategy? How can the law distinguish strangers who happened to get caught up in the same travelling company from a group who purposefully hired a smuggler? On that note, could an irregular arrival be on a return trip, or be discovered after living in the country for some time – and, if so, how long? Further, there is, as yet, no evidence that detention successfully deters spontaneous or undocumented travel, so how will legislation change this fact? Moreover, Canada – like other developed countries – blocks legal routes of entry for a range of visa applicants. Why should people who use a risky method of travel be subjected to months of detention? Finally, the Minister claims that the Act will demonstrate tolerance and security to citizens and would-be immigrants. In that case, should it be seen as part of a larger Government effort to create a spectacle that will encourage belief in the justness of the country’s immigration enforcement policy? We can only speculate on how these changes will impact the numbers of people reaching Canadian shores seeking protection and how many of them will be detained.