If You Are Detained
Most people seeking refugee protection in Canada are not detained. If you are detained, understand why. Learn where and when you may be detained. Understand how to make a refugee claim in detention.
Understanding Immigration Detention in Canada
Canada immigration law allows federal authorities to detain non-citizens for one or more reasons that are mentioned in the Immigration and Refugee Protection Act. CBSA is responsible for immigration detention.
Only a small percentage of refugee claimants are detained. Most refugee claimants live freely in the community for their entire refugee claim process.
In most cases, detention could happen at the beginning of the refugee claim process. Most refugee claimants who are detained are later released from detention.
If you are detained, CBSA must inform you of the reasons for detention.
The reasons for immigration detention in Canada
There are different reasons that you could be detained in Canada. It is important to be aware of these reasons, so you can avoid them. These reasons include:
Flight means that authorities believe you will not present yourself when required. This can happen if you did not present yourself to immigration authorities in the past, in Canada or in another country. There may be other reasons why authorities think you will not appear.
If you are detained for flight risk, you may be able to present an Alternative to Detention (ATD). This could include the condition to report regularly to CBSA, a specific place of residence, or a cash bond provided by a third person. You may also present an ATD if you are detained for one of the other reasons listed below.
You can be detained for identity reasons if a CBSA officer is not convinced you are who you say you are. This can happen if you do not have documents to prove your identity. It can also happen if a CBSA officer suspects that documents may be fraudulent or does not believe information you provide about yourself and how you travelled to Canada.
If you are detained for identity reasons, you will have to provide evidence to confirm your identity. CBSA may ask for documents that prove your identity. Sometimes they investigate social media, visa applications or information from other countries in order to confirm your identity.
Danger to the public
CBSA can detain you if they believe you pose a danger to the public in Canada.
If CBSA believes or suspects any criminality or other security concerns, they can detain you while they investigate to gather more information. If CBSA finds evidence of serious criminality or other security concerns, they may ask the IRB-ID to find you inadmissible to Canada. If you are found inadmissible for serious criminality or other security concerns, you will not be eligible to make a refugee claim. It is important to seek legal advice.
When you can be detained in Canada
You could be detained at a legal border crossing, between legal border crossings, at an airport, a seaport or within Canada. There are three situations when you can be detained in the immigration process:
- When you are trying to enter Canada
- After you are in Canada
- During or after an immigration inquiry while you are in Canada.
Where you can be held for detention in Canada
If you are arrested by a CBSA officer, the officer will decide at which location you will be held for detention.
CBSA operates three detention centres in Canada, called Immigration Holding Centres:
- Toronto, Ontario
- Laval, Quebec (close to Montreal)
- Surrey, British Columbia (close to Vancouver).
CBSA can also detain people for immigration reasons in a provincial or territorial jail.
Where you are held for detention is based on multiple factors including the existence of an immigration holding centre in the region, available space, and the level of risk you pose.
Detention conditions depend on the location of detention. Conditions are different depending on whether you are in an Immigration Holding Centre or in a provincial jail.
In some cases, it may be possible to ask CBSA to change your location. If you are in detention there is a CBSA officer called a Detention Liaison Officer or an Inland Enforcement Officer who you can contact if you have any questions or concerns about detention conditions.
How long you can be detained in Canada
The length of time in detention depends on the reasons for detention. For example, the IRB-ID may agree to your release if there are conditions that address the reasons for detention, or based on the best interest of children under 18 affected by your detention.
In some cases, you may need to provide an ATD.
The Detention Process
How the detention process works
If you are arrested and detained for immigration reasons, it is possible that CBSA will release you within 48 hours if the reasons for detention are resolved, or if there is an ATD.
Detention review hearing
The first detention review hearing with the IRB-ID occurs 48 hours after arrest or as soon as possible afterwards. The IRB-ID has the authority to review reasons for immigration detention and to order release or continued detention.
This detention review hearing may be held in person, either at the IRB or at an Immigration Holding Centre. The detention review hearing can also be held by videoconference, or in some cases by telephone conference.
The detention review hearing is conducted in English or French. An interpreter is provided by the IRB-ID if necessary. If you need an interpreter, you should inform CBSA when you are arrested. You can also ask for an interpreter at the time of your detention review hearing.
The people present at a detention review hearing include:
- The Member of the IRB-ID who makes the decision
- A CBSA representative (also called Minister’s Counsel) who presents the reasons for detention and makes a recommendation,
- You and your accompanying family members, if they are with you in detention
- An interpreter, if necessary
- Your legal representative, if you have one
- It may be possible to have witnesses or observers at your hearing.
If detention is maintained or if you are released
At the beginning of the hearing, the CBSA representative must explain the reasons for detention and make a recommendation for release or continued detention. CBSA may request conditions or an ATD.
Alternatives to Detention
You and/or your legal representative can make arguments in favour of your release and can propose an ATD.
Possible alternatives to detention may be:
- The condition to report to CBSA on a regular basis
- A specific place of residence
- A cash deposit or guarantee from a third person (such as a friend, family member)
- Other conditions.
Factors taken into consideration
The IRB-ID Member will decide at the end of the hearing whether to release you, to release you with some conditions, or to maintain detention. The Member will make this decision by considering factors including:
- The reasons for detention
- The length of detention
- The future length of detention
- Any delays or lack of diligence caused by CBSA or by you
- Any possible alternatives to detention
- The best interest of any children under 18 who are affected by your detention
- Conditions of detention.
If your detention is maintained
If your detention is maintained, you will have another detention review hearing within 7 days. If your detention is maintained again, you will have another detention review at least every 30 days.
If you are released from detention
When you are released, you will receive a release order with any conditions that you must respect. It is very important to understand these conditions. Any conditions remain until you become a permanent resident, or until the IRB-ID or CBSA agree to change your conditions. If in the future you wish to request a change in conditions, you may make a request to the IRB-ID.
If you are released from detention, you must provide a residential address. In some regions of Canada there are temporary shelters for refugee claimants. You can obtain information about shelters from your legal representative, from a settlement service provider or other community organization, or in some cases from CBSA.
Access to legal representation
Access to legal representation varies depending on where you are detained. In some regions:
- A duty counsel program exists. Duty counsel are lawyers/paralegals who provide free legal representation for detention review hearings
- Access to a legal representative may be provided through a provincial legal aid program, depending on eligibility criteria.
- There is no legal aid provided. Some people hire a private lawyer or immigration consultant, appoint an unpaid representative such as a family member, or have no representative.
If you are detained, ask if you can speak to a legal representative.
Challenges accessing legal representation or other services
There are general challenges that you may experience when accessing legal representation when in detention. These include:
- If you do not speak English or French, there are often no interpreters available to support you while accessing legal aid services from detention
- Legal aid’s number that is provided by CBSA can go either to the general office number and/or directly to a legal representative on duty. If there is no interpreter available, this will pose a challenge
- If you are detained in a provincial jail, you may not be granted a free phone call to legal aid.
Access to communication
It is difficult to communicate with the outside when you are in detention. Access to communication depends on the location of detention.
You will not have access to the internet or your cell phone, unless given special permission by CBSA. In Immigration Holding Centres it is possible to make free calls within Canada. A prepaid international calling card may be required to call another country. In some cases, CBSA officers may provide access to a phone or video call, at their discretion.
Access to telephones inside provincial jails varies depending on the facility.
Access to information
If you need more information about immigration procedures, you can ask to speak to a CBSA officer. Your legal representative can provide you with important information.
There are Non-Governmental Organizations (NGO) who provide free support to people in immigration detention and who may be able to visit you. NGOs can provide you with information about detention, the refugee claim process, and other important information.
If you are detained, ask if you can speak to an NGO representative.
You may be able to receive visits from friends, family members or other visitors. Visiting hours and conditions are different depending on where you are detained.
If you are confined for public health or other reasons, you may not be allowed to receive visitors.
Detention centres and jails are staffed by security guards who enforce the rules and carry out surveillance.
Being in immigration detention can be a very difficult experience, without basic freedoms and confined to a prison or prison-like environment. Handcuffs and sometimes other restraints are used in the transportation to and from the detention facility, with exceptions for some vulnerable people.
If you are in Canada with your children, it is possible that they will be in detention with you in an Immigration Holding Centre. If you are separated from your children or other family members, it is important to discuss with your legal representative and to seek help from an NGO.
Making a complaint
If you have a complaint about your treatment, you may complain to CBSA. Complaints are handled internally by CBSA. Communications with CBSA can be used in detention review hearings. It is important to seek legal advice or seek information from NGOs.
You have rights in detention, these include the right to:
- Be informed about the reason(s) for your detention and have access to a CBSA officer
- Be represented by a legal representative at your expense or to receive legal aid, if you qualify. You will be given information about the legal aid services available to you. You may also designate a friend or a member of an organization or association to represent you without a fee
- Contact a representative of your country’s embassy or consulate. If you do not want a consular representative to be contacted because you are seeking protection in Canada, you can ask that the office of the United Nations High Commissioner for Refugees (UNHCR) in Canada be informed of your detention
- Contact NGOs who may support you
- Be assisted by an interpreter if you do not understand or speak the language in which immigration proceedings are being conducted (English or French)
- Receive medical attention
- Practice your religion.
Making a Refugee Claim in Detention
Timelines and the BOC Form
If you are detained, you must still respect any deadlines for the refugee claim process. This includes submitting the BOC Form. If you are given a BOC Form at your eligibility interview, you will have 45 days from that date to submit the completed form to the IRB-RPD.
It is important to ask your legal representative if they can assist you with your BOC Form. If you do not have a legal representative, you can ask CBSA to submit the form to the IRB-RPD.
If you had difficulties completing the BOC form while you were in detention, you can explain on the document, for example:
- No legal representative
- No access to proper translation or interpretation
- Other difficulties caused by detention.
You, or your legal representative if you have one, can ask for an extension of the BOC form deadline.
If you submit the BOC form after the deadline, the IRB will hold a special hearing to determine if your claim is abandoned or if a late BOC Form will be accepted. CBSA must present you to the IRB-RPD for this procedure if you are detained.
If you have a legal representative for your detention review hearings, the same person will not automatically represent you for your refugee claim.
When you are released from detention, you must provide your new address to the IRB-RPD in order to receive notices of any further information required for the claim or of a hearing date.
It is extremely rare that a refugee claimant has their refugee hearing while in detention. If you receive a date for a refugee hearing while you are in detention and you do not have a legal representative, it is important to ask an NGO for help.
If you were detained for identity reasons, it is possible that questions will be raised about your identity during your refugee hearing. Release from immigration detention is not a guarantee that CBSA is satisfied with your identity. Make sure to discuss with your legal representative whether you have all necessary documents to confirm your identity during your refugee hearing. CBSA may also intervene in your refugee claim if they have concerns about your identity.