“Papers, Please”: The Indefinite Detention of Undocumented Refugees in Canada
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Constantine Gidaris is a PhD Candidate in the English and Cultural Studies Department at McMaster University, and an instructor in the Peace Studies Department. His dissertation and research focuses on the relationship between surveillance technologies and data as non-penal forms of carcerality. His work is funded by the Social Sciences and Humanities Research Council.
The Case of Ebrahim Toure

In 2011, Ebrahim Toure fled Guinea, West Africa, using his cousin’s passport under the name of Omar Toure. He was allowed entry into Canada as a visitor and made his way to Toronto, Ontario. There, he applied for refugee status using his real name, admitting to having fraudulently used his cousin’s passport to enter Canada. As the Immigration and Refugee Board (IRB) reviewed his refugee application, Toure applied for and was granted a work permit under his own name, and was hired at a private recycling company in Toronto.
The IRB eventually denied his refugee clam, including his subsequent appeals, and issued Toure a removal appointment by mail. In 2013, the Toronto Police Service arrested Toure pursuant to a Canada-wide arrest warrant issued by the Canada Border Services Agency (CBSA)—a removal appointment that Toure claims to have never received, despite having attended all of his previous immigration appointments. His failure to appear before the IRB for his removal hearing marked Toure as a flight-risk, and authorized his detention under section 55 of Canada’s Immigration and Refugee Protection Act.
For four and a half years, Toure was detained at the Central East Correctional Centre (CECC) in Lindsay, Ontario, considered a maximum-security prison. He was subsequently transferred to the Toronto Immigration Holding Centre for an additional year of detention, until Superior Court Justice Alfred O’Marra ruled that his indefinite detention at the CECC without any criminal charges amounted to “cruel and unusual” treatment and violated the Charter of Rights and Freedoms. This ruling served as the backbone for Toure’s release from detention on September 21, 2018.
In a release plan that was jointly submitted by the CBSA and Toure’s lawyers, the CBSA acknowledged that their previous concerns of Toure posing a flight risk were unfounded and no longer valid, particularly because there was no reasonable way for Toure to obtain any sort of travel or identity documents. Although Toure had repeatedly expressed a desire to leave Canada at the time of his arrest, the CBSA could not deport him because he did not possess any valid identity documents. As an individual with purported citizenship claims to The Gambia and Guinea, but with no valid identity documents to substantiate either claim, neither The Gambia nor Guinea expressed a willingness to take him back. In the end, the CBSA and the IRB conceded to what Toure and his lawyers had argued from the very beginning; namely, why keep him detained when he could not be deported?
The Punitive Nature of Immigration Detention
Toure’s case demonstrates that immigration detention is part of a punitive process that relies rather extensively on state-issued identity documents. Without them, undocumented people seeking asylum or refugee status can be rendered ineligible. Unlike other regions of the world, such as Sub-Saharan Africa and South Asia, where millions of rural populations are undocumented from birth, state-issued identity documents in Canada, the United States and the United Kingdom, are integral to identity and mobility as part of everyday life. In what Kamal Sadiq calls “citizenship from above,” identity documents allow governments to control and identify who enters and exits their borders, while enabling them to deport or refuse entry to those who they deem illegitimate. Yet, these ways of seeing and knowing from ‘above’ are fused to bureaucratic modes of understanding identity and mobility, which simply do not exist in many of the world’s rural regions.
Citizenship from above works to invoke fear and insecurity of undocumented people. Sadiq employs the term “citizenship from below” to describe the long-standing existence of undocumented citizens by birth. Although the state does not recognize them through no fault of their own, these citizens spend most of their lives with little support from the state, and often without exercising any civil or political rights. Even without the rights afforded to documented citizens in these more rural and developing regions of the world, undocumented citizens are still acknowledged to exist. In other words, their existence is predicated not entirely on the state’s power to recognize or define their citizenship, but on the collective community who “vouch[es] for the individual’s membership claim.”
Once undocumented citizens exercise their right to migrate, they are exposed to new or continued human rights violations, including those part of immigration detention. Deprived of the informal and communal structures that recognize citizenship, social and cultural membership in traditionally rural regions, the citizenship of undocumented refugees becomes contingent on the notion of documentary citizenship in more urban regions of the world. Without the necessary identity documents to corroborate their claims of citizenship, undocumented individuals are met with speculation upon arriving at their destination countries. With no viable way of tracing who they are or where they came from, governments that rely on infrastructures of documentary citizenship view undocumented populations as schisms in the ‘normalcy’ with which human life is recognized and verified. To clarify, while undocumented bodies exist as corporeal entities, they are nonexistent as documented identities. In this way, their appearance and existence in destination countries is seen as both paradoxical and abnormal.
Undocumented Refugees as Undocumented Monsters
For Michel Foucault, one of the domains of abnormality that came together in the nineteenth century was the figure of what he calls the “human monster.” According to Foucault, the human monster concerns individuals for whom “existence and form is not only a violation of the laws of society but also a violation of the laws of nature.” Using this definition, I suggest that undocumented refugees like Toure, embody the abnormality of the human monster. Their appearance within the state’s “‘juridico-biological’ domain” represent a transgression of the law and of what we might refer to as the ‘natural’ order.
The existence of undocumented refugees without any documented proof of existence beyond their bodies disregards the legal and natural order with which modern states have come to acknowledge and define existence. Similar to the human monster, the unnatural or abnormal existence of undocumented refugees is seen to violate the law and the natural order of things. Without the necessary identity documents to legitimize their existence undocumented refugees—or undocumented monsters—are locked away until states can figure out what to do with them. Their perceived abnormality is often met with an equally abnormal way of confining them through indefinite detention—a form of confinement in Canada that blatantly disregards international laws, conventions and guidelines.
The absence of identity documents singles out undocumented refugees as legal and natural anomalies, as notions of legal and natural existence are frequently fused to documents at birth in the modern state. This natural order of things requires our biological existence to be written into a legal existence. Without verifying our existence in this way, and subsequently through other state-issued identity documents, which include social insurance numbers, health cards and driver’s licenses, existence itself becomes almost impossible. By detaining or deporting undocumented refugees, states seek to contain or eliminate the legal and natural threats that the undocumented are seen to pose, not only to the state but to the notion of existence itself. And while identity documents such as passports may indeed offer “‘high-truth-claims’ with regard to nationality, belonging, and citizenship,” they do not offer the state any increased safety or security since these documents cannot in any way lay claims to an individual’s character or intentions.
Without state-issued identity documents, undocumented refugees like Toure are effectively rendered stateless. The illegibility of his body, as well as others, demonstrates just how susceptible undocumented refugees are to the systemic violence ingrained in immigration and detention systems. Toure’s experience, in particular, reminds us that indefinite detention, as a result of an absence of documentation, is not a solution for identifying or deporting undocumented refugees. In fact, it serves no real purpose but to incarcerate those who do not fit into legal and bureaucratic modes of existence.
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How to cite this blog post (Harvard style)
Gidaris, C. (2020). “Papers, Please”: The Indefinite Detention of Undocumented Refugees in Canada. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/04/papers-please [date]
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