Detention of Foreign Nationals facing Removals

Date: March 10, 2021
Classification: Unclassified
Fully releasable (ATIP)? Yes
Branch / Agency: IEB/CBSA

Proposed response:

• The CBSA has the sole federal authority to detain persons who are facing removal under section 55 of the Immigraton and Refugee Protection Act (IRPA), and, as such, is responsible for the care and control of immigration detainees.
• To protect the safety, health and security of Canadians and the integrity of our border, Canada’s immigration laws permit the CBSA to detain individuals for lack of identity, for flight risk, and for danger to the public.
• The IRPA also affords CBSA officers the legislative authority to impose conditions considered necessary to ensure an individual’s compliance with immigration-related requirements.
• CBSA officers work to ensure that they are exercising responsibility for detentions to the highest possible standards, by balancing the considerations of the physical and mental health and well-being of detainees as well as the safety and security of Canadians.
• The CBSA’s application of its detention authorities is risk-based and supports the selective use of detention in an immigration holding centre or provincial facility. Detention is a last resort. Alternatives to Detention are always considered prior to making a decision to detain.
• Where safety or security is an issue, immigration detention is considered for the shortest time possible and primarily focused on supporting the removal of individuals.
• Officers evaluate detainee risk through a standardized tool referred to as the National Risk Assessment for Detention. This process helps ensure national consistency of detention placement decisions in a transparent and objective way, and sets risk and vulnerability factors, which are assessed using a point system that will direct an officer on appropriate detention placement.
• The CBSA’s decision to detain a person is subject to ongoing review by the Immigration Division of the Immigration and Refugee Board, which is an independent administrative tribunal.
• CBSA officers can detain a foreign national or permanent resident at a port of entry for reasons including but not limited to:
  • There are reasons to believe that the person is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; or
  • a danger to the public.

If pressed on Quarantine Facilities and COVID-19 context:

• Quarantine facilities are not comparable to Immigration Holding Centres. The oversight of these government approved accommodation sites (or quarantine hotels) fall completely under the responsibility of the Public Health Agency of Canada (PHAC). Immigration Holding Centres are the responsibility of the CBSA, but it is very important to note that these two facilities are mutually exclusive.
• There are currently no confirmed COVID-19 cases at any Immigration Holding Centre.

If pressed on removals during COVID-19:

• Throughout the pandemic the Agency has continued to enforce removals for: those with serious inadmissibilities; those wishing to voluntarily leave Canada; removals conducted by ports-of-entry; and administrative removals for those who had departed voluntarily, but had not confirmed their departure.
• On November 30, 2020, the CBSA resumed enforcing removals of all inadmissible persons.

Background:

The CBSA works to ensure that it is exercising responsibility for detentions to the highest possible standards, with the physical and mental health and well-being of detainees as well as the safety and security of Canadians as primary considerations. Detainee rights are guaranteed by the Charter of Rights and Freedoms; individuals who are detained for immigration purposes are protected from arbitrary arrest and detention and have access to effective remedies.
CBSA officers detain foreign nationals and permanent residents when there are reasonable grounds to believe the person is inadmissible to Canada and is:

• a danger to the public;
• unlikely to appear (flight risk) for immigration processes;
• unable to satisfy the officer of their identity (foreign nationals only);
• upon entry, to complete an immigration examination; or,
• has been designated as part of an irregular arrival by the Minister of Public Safety (16 years of age or older only).

CBSA officers may also detain foreign nationals and permanent residents at a port of entry where there are reasonable grounds to suspect the individual is inadmissible due to security grounds, human rights violations or criminality.Immigration detention is not punitive but exercised to ensure the integrity of the immigration system and public safety. Detention is a last resort and officers must always consider alternatives. In provinces where there are no Immigration Holding Centres (IHCs) and/or the person presents a higher risk profile or is a public security risk, the CBSA relies on the use of provincial facilities. To reduce the use of provincial correctional facilities, we have expanded Alternatives to Detention (ATDs). An expanded ATD Framework was launched on July 24, 2018 and includes national Community Case Management and Supervision, Voice Reporting and, in the GTA and QUE, Electronic Monitoring. ATDs may include release on reporting conditions, including performance bond; cash deposit; establishment of a bondsperson; or, acceptance into a community supervision program.

A CBSA officer’s decision to detain a person under the IRPAis subject to a review by the Immigration and Refugee Board (IRB), an independent quasi-judicial tribunal. Detainees must appear before the IRB within the first 48 hours of being detained. At a detention review, the IRB may release the person or identify conditions for release or determine that detention should continue. If the IRB determines that detention should be continued, the individual must appear in the next seven days and every 30 days thereafter. The Immigration Division of the IRB always provides reasons for its decisions, and its decisions are subject to judicial review with leave from the Federal Court.

Immigration Holding Centres

In light of the novel coronavirus pandemic, temporary measures have been implemented to further mitigate the risks to more vulnerable detainees and limit the use of detention as much as possible. With the goal of minimizing the risk of introducing and spreading COVID-19 to CBSA facilities, the CBSA has:

• restricted access to IHC facilities to those performing critical services, such as health/mental health services (including doctors and nurses on staff 24 hours, 7 days per week), security services, food services, cleaning services and, when applicable, legal services;
• enhanced hygiene measures for persons authorized to enter the IHCs;
• undertaken additional measures to completely sanitize spaces and facilities for detainees and staff.
• increased the frequency of cleaning bathrooms, rooms, common areas and lobbies in IHCs;
• implemented mandatory use of personal protective equipment at all times for those working at CBSA facilities in order to prevent the spread of Covid-19;
• mandated that staff, contracted staff, and detainees currently adhere to social distancing at all times, as recommended by health authorities, unless exceptional situations arise.
• introduced two time slots for each meal at IHCs to facilitate social distancing;
• set up teleconferencing services to avoid the need for detainees to travel (for example, hearings and/or detention reviews);
• discontinued personal visits until further notice, except for legal advisors, designated government representatives and interpreters;
• improved access to telephones as well as allowing for free long-distance calling, where possible, in order to maintain connections with support systems at this difficult time;
• implemented enhanced medical oversight of detainees;
• began conducting twice daily temperature checks in the Toronto IHC;
• implemented a Covid-19 medical screening form for all new IHC admissions;
• been working with the Immigration and Refugee Board to ensure detention reviews are being held via telephone or videoconference to the greatest extent possible.

Should a detainee in CBSA care be seriously ill and in need of immediate medical attention, they would be referred to the appropriate local or emergency health authority for medical assessment without delay. This also applies to cases of persons arrested at inland locations within Canada. In situations where the Immigration and Refugee Board determines the release of a detainee before the 14-day self-isolation period is complete, a Medical team will meet with the individual and provide them with directives for continuing their self-isolation, along with the same handout that is being provided in airports.

The CBSA will continue to engage with PHAC on any cases of suspected exposure to COVID-19. The CBSA is constantly reviewing its processes and procedures as events unfold. The CBSA also continues to work with its provincial partners on measures to ensure the safety and security of CBSA detainees who are being detained in provincial facilities.

As of March 4, 2021, there were four detainees who were subject to self-isolation at the Immigration Holding Centre in Laval, and 16 at the Immigration Holding Centre in Toronto. As of March 2, 2021, three detainees were required to self-isolate at the Immigration Holding Centre in Surrey.

There are currently no confirmed COVID-19 cases at any Immigration Holding Centre. To date, there have been five confirmed detainee positive COVID-19 cases within Immigration Holding Centres, four confirmed positive COVID-19 CBSA employee cases within Immigration Holding Centres, and 32 confirmed positive COVID-19 contracted staff cases within the Immigration Holding Centres. All individuals within the Immigration Holding Centres who tested positive for COVID-19 have recovered.

Detention Statistics

Since November 2016, the CBSA has been posting statistics related to immigration detention online at http://cbsa.gc.ca/security-securite/detent-stat-eng.html. Published statistics include annual and quarterly statistics up to 2020-2021, and include details on minors including their status, age, gender, length of housing/detention and facility type, as well as the average and median length of time in a facility.

As of February 28, 2021, there were 159 individuals in immigration detention, a reduction of 55% from 353 detainees on March 17, 2020 when border restrictions were imposed. As of February 28, 2021, 40% were in Immigration Holding Centres, 58% in a provincial facility, and 2% in other facilities. 

Since the beginning of the COVID-19 pandemic, the CBSA has made a concentrated effort to ensure the volume of detained persons remains at a minimum. In February 2021, 55% of the detention population were new admissions while 45% of the detentions are continuing from January 2021.  

Minors in Detention

The detention of a minor under A55 of the Immigration Refugee Protection Act (IRPA) is exceptional and a measure of last resort.

The CBSA actively and continuously seeks alternatives to detention when unconditional release of parent/legal guardian is not appropriate and it is not the CBSA’s practice to separate children from their parent(s) or legal guardian(s).

The best interest of the child is always a primary consideration. The CBSA actively and continuously seeks alternatives to detention, such as placement with family members, when the release of a parent/legal guardian is not appropriate.

When a minor is housed or detained, the CBSA ensures that they have the proper access to programs and services, including access to health care services, outdoor and indoor recreation, and proper nutrition that caters to special dietary needs. Minors that are in Immigration Holding Centres for periods in excess of seven days are provided with educational programming.

In 2019-2020, 136 minors were housed with their detained parent(s) or legal guardian and only two minors were detained. Of those, 134 minors were housed in the Laval Immigration Holding Centre and all minors were accompanied. The other two detained minors were in the Immigration Holding Centre in Surrey. Eighty percent of minors were housed or detained due to concerns with their identity or the identity of their parents or legal guardians.

To date in 2020-2021, four minors were housed with their detained parent(s). This represents a significant decrease of 97% compared to the same period last fiscal (136 minors in 2019-20 to four minors in 2020-21).

As of March 3, 2021, no minors were housed or detained at any CBSA Immigration Holding Centres.

The CBSA continues to work to reduce the number of detainees, including adults with minor children, through its expanded suite of Alternatives to Detention.

Removals during COVID-19

On March 17, all scheduled removals were postponed; however, exceptions were considered on a case-by-case basis, whether at ports of entry or inland, particularly:

• serious inadmissibility cases; and
• individuals who approach the CBSA with a request to leave voluntarily. The Agency will facilitate the removal, as per normal process, by purchasing an airline ticket if the individual is unable to do so themselves.

During this period, removals were also being administratively enforced as per regulatory changes that came into effect in 2018 (section 240(3)).

Furthermore, an Administrative Deferral of Removal (ADR) was imposed on Hubei Province, China, on February 6, 2020. It was subsequently lifted on July 30, 2020. On August 4, 2020, as part of the Removals Resumption Plan, the CBSA resumed escorted removals of serious inadmissibility cases.

On November 30, the CBSA recommenced the removal of all inadmissible persons in Canada. This includes failed irregular migrants, failed refugee claimants and lesser inadmissibility. The Agency has taken note that countries have begun a gradual re-opening, which is increasing the availability of flights for international travel. This also coincides with increased mitigation measures by countries and airline companies, such as social distancing and mandatory mask wearing, which increases the possibility of safely and effectively conducting removals. This is further enhanced by CBSA COVID-related protocols, which includes the use of personal protective equipment for removals.

The Agency will continue the requirement of headquarters senior management authorization of escorted removals on a case by case basis to ensure they are done as safely as possible for everyone involved. Additionally, the Agency will continue to actively monitor the COVID-19 situation, both domestically and abroad, to ensure that removals continue to be conducted safely and fairly for everyone. This will also allow the Agency to act quickly upon any changes in the COVID-19 environment as soon as possible and, if the situation should require it, the Agency can re-impose the pause.

Removals Statistics

In the 2018-2019 fiscal year, the CBSA removed 9,698 individuals from Canada; it removed 11,536 in the 2019-2020 fiscal year. These represent the highest removal numbers in the last four years for the Agency. As of March 4, 2021, the CBSA has removed 10,570 individuals for the 2020-2021 fiscal year, which has been impacted by a removal stoppage due to COVID-19. The breakdown is as follows:

• Total Removals: 10,570
• POE Removals: 593
• Inland Removals: 9,977
• R240(3) Removals (i.e., Administrative Removals): 7,981
• Serious inadmissibility cases (ss34, 35, 36 & 37 of IRPA): 269
• Voluntary (i.e., requested to leave during pandemic): 1,301

Contacts:

Approved by: Scott Harris, Vice President, Intelligence and Enforcement Branch

Date modified:

2021-05-04