Immigration detention hearings in Canada
Often our firm gets calls from people who have been "picked up" by the immigration authorities, in Canada known as the Canadian Border Service Agency (CBSA). In most cases, such persons are residing in Canada without status, sometimes for many years. These "overstays" usually came to Canada legitimately as visitors, workers or students but remained beyond their visa permits and may face an immigration detention hearing.
Other people subject to immigration detention can actually be legal Canadian permanent residents who have criminal records. In some instances, certain criminal offences can result in deportation proceedings even if you are a permanent resident. Generally, but not always, only Canadian citizens are immune to deportation.
If you or someone you know, has been apprehended by the CBSA and are sent to an immigration detention centre, you have certain rights that you should be aware of.
Firstly, under Canadian immigration regulations, you have a right to an immigration detention hearing, formally called a "Detention Review". According to the regulations, your immigration detention hearing must take place within 48 hours of being detained. Now, in practice, the 48 hour rule sometimes does not work out, especially in cases when the detention takes place, say, on a weekend. Scheduling issues in getting a immigration judge (called a "Member") sometimes results in a delay for a day or two before your case is heard.
At the detention review hearing, the Member has to consider three factors when deciding whether to release the person in detention:
- Whether the person poses a "flight risk". Will the person, if released, appear when Canada immigration contacts him or her?
- Whether the person is considered to be a "danger to the public". Detainees who have a criminal record will be more likely not be released if they have an extensive or serious criminal history in Canada or elsewhere.
- Whether the person's identity can be ascertained. In the vast majority of cases, identity is not really an issue as Canada immigration usually has the person's passport or ID in their possession and knows the true identity of the person in detention.
At the immigration detention hearing, the Member may consider ordering the release of the person if a bond is proposed, usually in the form of cash and performance (promise to pay) by a Canadian citizen or Canadian permanent resident. The Member will consider the amount of the bond proposed and the nature of the relationship of the bonds-person to the detainee, in making a decision to release the person from detention. The Member will weigh these factors with the three grounds of detention mentioned above and make a decision about whether to make an order for release or continued detention.
If after considering these factors, the Member orders that release is not warranted, then the person in detention has a right to another, second Detention Review within 7 days of the original 48 hour hearing. And if at the 7 day hearing, the person is still not ordered released, he or she has right to yet another immigration hearing within 30 days of that hearing.