Timelines and the BOC Form
You must still meet any deadlines for the refugee claim process. This includes the BOC Form. If you get a BOC Form at your eligibility interview, you have 45 days from that date to send it to the IRB-RPD.
It is important to ask your legal representative if they can help you with your BOC Form. If you do not have a legal representative, ask CBSA to send your form to the IRB-RPD.
If it was hard to do the BOC form while detained, explain this on the document. For example:
- You did not have a legal representative
- There was no way to get a translator or interpreter
- Any other problems you had because you were detained
You, or your legal representative if you have one, can ask for more time to do your BOC form.
If you send in the BOC form after the deadline, the IRB will hold a special hearing to decide if they will accept it. They may say you have abandoned your claim. CBSA must take you to this hearing if you are detained.
If you have a legal representative for your detention review hearings, the same person might not also represent you for your refugee claim.
When you are released, you must give your address to the IRB-RPD. You will need to know if they want more information for your claim or give you a hearing date.
If you remain detained after your refugee claim has been filed, the IRB-RPD will process your claim more quickly. They will schedule a hearing in a shorter amount of time than usual. If you have your hearing while detained, and you do not have a legal representative, it is important to ask an NGO for help.
If you were detained for identity reasons, you may be asked about this during your refugee claim hearing. CBSA may release you but still have concerns. They may come to your hearing. Make sure to ask your legal representative whether you have all the documents you need.
Get legal representation
If you are detained, ask to speak to a legal representative. How easily you can get one depends on where you are in Canada. In some areas:
- Duty counsel (a lawyer or a paralegal) can give free legal representation for your hearings.
- You may get a legal representative through a provincial legal aid program if you qualify.
- If there is no legal aid, you can hire a private lawyer or immigration consultant. You can also choose to have an unpaid representative such as a family member, or none at all.
Get legal aid
You may have trouble getting legal help while detained:
- If you do not speak English or French, there may not be interpreters to help you get legal aid services.
- If you are in a provincial jail, you may not get a free phone call to legal aid.
It can be difficult to talk to people who are outside your centre or jail.
In the centres, you cannot use the internet or your own cell phone unless CBSA gives you permission. You can make free calls within Canada. You may need a prepaid international calling card to call another country. CBSA officers may let you make a video call.
Inside provincial jails, you may have trouble using a phone depending on which one you are in.
You can ask to speak to a CBSA officer for more information about the steps ahead. Your legal representative can also give you important information.
There are Non-Governmental Organizations (NGO) who support detained people. They may be able to visit you and give you information about your situation. Ask if you can speak to an NGO.
You may be able to have visits from friends, family members, or others. Visiting hours and conditions will vary.
You may not be allowed to have visitors if you are being confined for some reason, such as public health.
The centres and jails are staffed by security guards who enforce the rules and watch over you.
Being detained can be a very difficult experience. It will seem like a prison and you will not have basic freedoms. Handcuffs, shackles, and other restraints may be used when you are outside the facility.
If you are in Canada with your children, they may be held in a centre with you. If you are separated from your children or other family members, tell your legal representative and get help from an NGO.
Make a complaint
If you have a complaint about your treatment, you can complain to CBSA. Any discussions you have may come up again at your hearings. It is important to get legal advice or get information from an NGO.
While you are detained, you have the right to:
- Be told why you are detained.
- Have access to a CBSA officer.
- Hire a legal representative to act for you.
- Get legal aid if you qualify. You will be told about the legal aid services available to you. You may also get a friend or a member of an organization to represent you without a fee.
- Contact your country’s embassy or consulate. If you are making a refugee claim, you should not do this without first getting legal advice. You can ask that the United Nations High Commissioner for Refugees (UNHCR) in Canada be contacted.
- Contact NGOs who may support you.
- Get an interpreter if you do not understand or speak English or French.
- Get medical attention.
- Practice your religion.
How detention works
Detention review hearing
You have your first detention review hearing with the IRB-ID 48 hours after your arrest or as soon as possible. The IRB-ID looks at the reasons you were detained and decides whether to release you or not.
This hearing may be in person, either at the IRB or at an Immigration Holding Centre. The hearing can also be held by videoconference or telephone conference.
The detention review hearing is in English or French. The IRB-ID will give you an interpreter if you need one. If you do not speak English or French and need an interpreter in your own language, tell CBSA this when you are arrested.
The people at a detention review hearing are:
- The Member of the IRB-ID who makes the decision
- A CBSA representative (called Minister’s Counsel)
- You and any family members, if they are also detained
- An interpreter, if you need one
- Your legal representative, if you have one
- Witnesses or observers at your hearing, if allowed
At the hearing
At the hearing, the CBSA representative explains why you are being detained and either recommends your release or argues why you should stay detained. If you are released, CBSA may ask for conditions that you must follow.
Alternatives to Detention
You or your legal representative can explain why you should be released. You can also suggest an Alternative to Detention (ATD) with the conditions you will follow.
What the IRB-ID Member considers
The IRB-ID Member decides at the end of the hearing whether to release you, to release you with conditions, or to keep you detained. The Member considers:
- Reasons for detention
- Length of detention
- Delays or problems that CBSA or you caused
- Possible alternatives to detention
- The best interests of any children under 18 who are involved
- Conditions of detention
If detention continues
If the IRB-ID Member decides you must continue to be detained, you will have another hearing within seven days. If you are ordered detained at this second hearing, you will have hearings at least every 30 days from then on.
If you are released
When you are released, you will get a release order with any conditions to follow. It is very important to understand the conditions. You must follow these conditions until CBSA says you do not have to, or until the IRB-ID or CBSA agree to change them.
If you are released, you must tell CBSA where you will live. There is some temporary housing available for refugee claimants in Canada. You can get information about these shelters from your legal representative, from a settlement or community worker, or sometimes from the CBSA.
Most refugee claimants live freely in Canada for their entire claim process. Only a small number are arrested and detained (held in custody).
In most cases, this happens at the start of the refugee claim process. If CBSA detains you, they will tell you why. Most refugee claimants who are detained are released later.
Why you may be detained
It is important to know the reasons why you could be detained, so you can avoid them. These reasons include:
Flight means that CBSA does not believe you will show up for your removal or an immigration proceeding. For example, you may have a history of not following immigration laws (in Canada or another country).
A CBSA officer may not be sure that 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 CBSA believes you have false documents or does not believe your information about yourself and how you travelled to Canada.
CBSA will ask you for evidence to prove your identity. Sometimes they look at social media, visa applications, or information from other countries.
Danger to the public
CBSA may believe you are dangerous to people in Canada.
If CBSA has any criminal or security concerns, they can detain you while they try to get more information. If they find evidence supporting their concerns, they may ask the IRB-ID to decide that you are not allowed to be in Canada. You will not be able to make a refugee claim. It is important to get legal advice if this happens.
Get released with conditions
For any of the situations above, CBSA may release you if you promise to follow certain conditions. For example, if they think you are a flight risk, you can promise to:
- report to CBSA regularly,
- live at a certain place, or
- get a cash deposit or guarantee from another person (such as a family member).
When you can be detained
You can be detained at a legal border crossing, at an unofficial border crossing, at an airport, a seaport, or within Canada. This may be:
- when you are trying to enter Canada,
- when you are already in Canada, or
- during or after an interview with immigration officials, while you are in Canada.
Where you can be held
If a CBSA officer arrests you, they decide where you will be detained.
CBSA has three Immigration Holding Centres:
- Toronto, Ontario
- Laval, Quebec (close to Montreal)
- Surrey, British Columbia (close to Vancouver)
CBSA can also detain you in a provincial or territorial jail.
Where you are detained depends on whether there is an Immigration Holding Centre in your region, available space in it, and the level of risk they think you pose. The conditions of these locations vary. It may be possible to ask CBSA to change your location. A Detention Liaison Officer or an Inland Enforcement Officer can tell you who to contact if you are concerned about conditions.
How long you can be detained
How long you are detained depends on why you are there. For example, the IRB-ID may release you if you follow certain conditions or if there are children under 18 involved.
Sometimes you may need to give an Alternative to Detention (ATD). An example of an ATD might be to stay with a friend who can supervise you and help you follow your conditions of release. Someone may need to make a cash deposit as part of your ATD.