Being detained by immigration authorities is one of the most stressful experiences a person can face. Canadian immigration law requires regular detention reviews before the Immigration Division (ID) of the Immigration and Refugee Board. This guide explains the detention review schedule, grounds for detention, alternatives to detention, and the legal framework that governs these proceedings.
The Detention Review Schedule
When a person is detained under the Immigration and Refugee Protection Act (IRPA), they are entitled to a series of detention reviews on a strict timeline. The first review must occur within 48 hours of detention. If detention continues, the second review occurs within 7 days of the first. After that, reviews take place every 30 days for as long as the person remains detained.
At each review, the Minister bears the burden of justifying continued detention. The detained person has the right to be represented by counsel, present evidence, and call witnesses.
Grounds for Immigration Detention
Under IRPA, a person may be detained on three main grounds: they are considered a danger to the public, they are considered unlikely to appear for immigration proceedings or removal, or their identity has not been established. The ID member must weigh multiple factors in deciding whether to continue detention or order release.
The Thanabalasingham Framework
The Federal Court of Appeal’s decision in Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (2004) established that with each successive detention review, the Minister’s burden to justify continued detention increases. The ID must consider whether there has been any change in circumstances since the last review, and extended detention requires increasingly compelling justification. This principle is critical for individuals who have been detained for prolonged periods.
Alternatives to Detention
The ID can order release on conditions rather than continued detention. Common alternatives include a cash or performance bond (deposit or guarantee), regular reporting to the Canada Border Services Agency (CBSA), residence at a specific address, and supervision by a bondsperson. Presenting a credible release plan with a reliable bondsperson and stable housing can significantly increase the chances of release.
Special Considerations
Canadian courts and the IRB have recognized that certain factors weigh heavily against continued detention, including the presence of minor children who depend on the detained person, mental health concerns exacerbated by detention, and the length of time already spent in detention without resolution of the underlying immigration matter. The Supreme Court of Canada has emphasized that immigration detention must not become indefinite.
How a Lawyer Can Help
Detention reviews move quickly and the stakes are high. A lawyer can prepare evidence and arguments for release, identify viable bondspersons, negotiate conditions with the CBSA, and ensure that the ID member properly applies the legal framework. If you or a family member is in immigration detention, contact BridgePoint Law as soon as possible to discuss representation at the next detention review.
