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.

Next guide section: 8.3 In Detention