Usually a family finds out through a phone call. A brother did not come home from a meeting with the Canada Border Services Agency (CBSA). A wife was stopped at Pearson. A father who had been living quietly in Brampton for years was picked up on an outstanding immigration warrant. The person on the other end of the line may have only a few minutes, and may not know exactly where they are being taken or why.
Immigration detention is different from a criminal arrest, and the instincts people bring from criminal cases do not always help. Nobody is on trial, and there may be no charge of any kind. Yet the system moves fast, and the first hearing can come within two days. What family members do in those first hours, particularly gathering information and identifying someone who can act as a bondsperson, can make a real difference to how the hearing goes.
The information below is general and is not legal advice on any specific detention. If someone you love is being held, try to contact a lawyer or legal aid as soon as possible. Procedures may also change, so check with the Immigration and Refugee Board (IRB) and CBSA for current details.
Who Holds the Person and Who Reviews It
Two separate bodies are involved. CBSA is the enforcement agency that arrests and detains. The Immigration Division of the IRB is an independent tribunal that reviews whether detention should continue. A member of the Division, not a CBSA officer, decides at the hearing whether the person stays in custody.
CBSA can also release someone itself before the first hearing, if the reasons for detention no longer exist. It is required to consider alternatives, and its assessment in the first 48 hours is a good moment for a lawyer to contact it with a proposed release plan.
People are usually held at an immigration holding centre, though someone considered higher risk may be held in a more secure facility, and short detentions may take place in other enforcement cells or at a port of entry. If you do not know where your relative is, ask CBSA directly, or ask a lawyer to do it.
Why Someone Can Be Held
Under section 58 of the Immigration and Refugee Protection Act (IRPA), the Immigration Division must order a person released unless it is satisfied that certain grounds exist. Stated simply, these are that:
- The person is a danger to the public.
- The person is unlikely to appear for an examination, hearing, or removal.
- The Minister is taking necessary steps to look into a reasonable suspicion of certain serious inadmissibility grounds, such as security or organized crime.
- The person’s identity has not been established, and either they have not reasonably cooperated or the Minister is making reasonable efforts to establish it.
In practice, “flight risk” is by far the most common issue for ordinary families. That usually arises from a history such as missed appointments, past use of a different name, an unenforced removal order, or having been out of status for a long time. A person might live in a stable home and have a job, and yet be seen as a flight risk because a removal is now imminent and they have said they will not go.
The Timeline
Section 57 of IRPA sets out the schedule:
- First review: within 48 hours of detention, or without delay afterward.
- Second review: at least once in the seven days after the first review.
- Later reviews: at least once in every 30-day period after that, for as long as detention continues.
If something changes between hearings, such as a bondsperson becoming available or a document arriving, you can ask for an earlier review rather than waiting for the next date. There is a different, much harsher set of review rules for “designated foreign nationals” in a group arrival, which is uncommon. Your lawyer can tell you whether it applies.
Hearings are normally scheduled as virtual, by video or telephone, although a person can request one in person. Family members in Brampton generally don’t need to travel far to take part, but check the notice carefully and tell the Division in advance if a witness or bondsperson will attend.
What the Member Must Consider
Even when grounds for detention exist, the analysis does not end. Section 248 of the Immigration and Refugee Protection Regulations requires the member to weigh:
- The reason for detention.
- How long the person has been detained.
- Any indication of how much longer detention will last.
- Any unexplained delay or lack of diligence by the government or by the person.
- Whether there are alternatives to detention.
- The best interests of a directly affected child under 18.
This last factor applies to any child directly affected, including a child in Brampton whose parent is being held. It can be powerful evidence to show how the detention has affected a child at home, including school problems, loss of the family’s income, or medical needs. A letter from a teacher or doctor may help. So may a clear account of who is caring for the child at the moment.
The factor of length is also significant, because detention cannot go on indefinitely. If removal is not going to happen soon because, say, a travel document is unavailable, the balance can shift over time. The Division must take that into account at each review. Previous decisions are weighed, and the member will want a clear reason to depart from them, so a family should bring something new to each hearing where it can.
Children and Families
Section 60 of IRPA states the principle that detaining a minor child should be a measure of last resort, taking into account other reasonable alternatives and the best interests of the child. CBSA says it houses minors only in exceptional circumstances.
Sometimes children end up in a holding centre without being formally detained, because a detained parent has no one else to care for them and the family chooses to keep them together. A parent facing this kind of decision is in a very hard position, and a lawyer should be involved as soon as possible. If a trusted relative in Brampton can care for a child, it can help to make this known right away. Anyone looking after a child in those circumstances should keep records of schooling and medical needs, and ask a lawyer about any need for a written consent.
A person under 18 or someone who is unable to appreciate the nature of the proceedings must have a designated representative at the hearing. If you think your relative has a serious mental health problem or a cognitive limitation, raise it with the lawyer and the Division straight away, since this may significantly change how the hearing is run.
The Bondsperson’s Role
This is often the most useful thing a family can offer. The Division can release someone on conditions, including a deposit or a guarantee.
A deposit, also called a cash bond, is money paid to the government. It is returned if the person obeys the conditions.
A guarantee, or performance bond, is a promise to pay a set amount if the conditions are broken. The guarantor must be a Canadian citizen or permanent resident able to pay the amount.
Someone offering to be a bondsperson should realize this is a real responsibility, and not a favour you do just out of loyalty. The member is likely to ask how you know the person, how often you will see them, what you know of their immigration history, and whether you would report them if they broke a condition. Someone who answers “of course I would call CBSA” with sincerity and can explain how they would know is more persuasive than someone who offers only general praise. The IRB’s bondsperson form can be completed ahead of the hearing, and you should be available at the hearing to answer questions.
Be honest about your finances and about the immigration history. If the person breaks a condition, the money can be forfeited, and that may mean losing savings or being pursued for the amount. Anyone in the family with concerns should think these through before volunteering.
Conditions on Release
Conditions can include giving CBSA an address, reporting regularly, a curfew, living with a specific person, and staying away from alcohol or drugs. CBSA also runs alternative-to-detention programs in some situations. A thought-out plan, with the address, a reporting method, and a way of getting to appointments from Brampton without a car, tends to be more convincing than a general promise.
After release, keep track of every condition. Missing a report or moving without telling CBSA can result in re-arrest and may cost the bondsperson their deposit. If a condition stops being workable, such as a reporting time that conflicts with a new job, ask to vary it in writing to the Immigration Division, with a copy to CBSA. Do not just stop complying.
Release from detention does not resolve the underlying immigration case. A removal order will still exist if it existed before, and the family should keep working on any stay, appeal, or application with legal help. Our immigration law page lists the areas where we can assist, and our contact page is the fastest way to reach us.
What Family Members Can Do Today
If you have just learned of a detention, try the following:
- Write down the person’s full name, date of birth, and any CBSA or IRCC file numbers.
- Find out where they are held and the time of the first hearing.
- Collect their passport, permits, removal documents, and any letters, including anything mailed to the house.
- Find a lawyer, or contact legal aid, which may be available in some cases. Community and religious organizations can sometimes offer support.
- Identify a possible bondsperson and start collecting their proof of status and proof of income.
- Collect documents about their ties in Brampton: lease, employment, children’s school records, medical records.
- Tell the lawyer and the Division if an interpreter is required. Do not wait to raise this during the hearing.
Be careful about what is said on the detention centre phone lines, and be sure not to coach anyone to say something untrue. An inaccurate statement to CBSA or at a hearing can do real damage to credibility, which is often the deciding issue when the question is whether someone will comply.
If Detention Continues
Long detention is hard on everyone. If the reviews keep going against the person, a lawyer may consider whether the reasoning can be challenged in Federal Court by way of judicial review, or whether a different approach, such as a stronger release plan or a change in the proposed bondsperson, could be presented at the next review. A person also has rights while detained, including the ability to contact counsel, and the Canadian Red Cross independently monitors conditions.
Each hearing is another opportunity, and each one is a chance to show that something has changed. A family’s steady, honest effort in supporting that plan is frequently what makes a release plan credible, though no one can promise how a given member will rule.