On January 31, 2011, the Canadian Border Services Agency (CBSA) released a report evaluating their Detentions and Removals Programs and proposing a number of policy changes, many of which are to be implemented in the coming months (http://cbsa-asfc.gc.ca/agency-agenc...). Although the report makes some positive recommendations, such as the increased use of alternatives to detention, there are very serious shortcomings, particularly with regard to detention of refugee claimants (asylum seekers). My comments are based in part on the preliminary results of a study on the impact of detention on refugee claimants that I am conducting in collaboration with Dr. Cécile Rousseau (McGill University), Prof. Delphine Nakache (University of Ottawa), Prof. François Crépeau (McGill University) and Dr. Lisa Andermann (University of Toronto). However the positions expressed here are my personal views.
CBSA officers have the discretion to detain refugee claimants if not satisfied with their identity or if they have reasonable grounds to suspect that the person might represent a flight risk, a security risk or a danger to the public. Only a small proportion of refugee claimants are detained on arrival in Canada. If flight risk is the sole reason for detention, the Immigration and Refugee Board (IRB) may order release subject to a performance bond or similar conditions. If, on the other hand, identity is at issue, the person will be held until they establish their identity to CBSA’s satisfaction. The Board cannot order their release unless it concludes that CBSA has not made reasonable efforts to ascertain the person’s identity. Persons held for immigration reasons may either be detained in specialized Immigration Holding Centres (IHCs), or in provincial prisons if there is no room in an IHC or if the person is considered dangerous.
Overview of the report
The core focus of the CBSA Detentions and Removals Programs Evaluation Report is to propose ways of reducing costs, reducing inconsistencies in the application of detention and removal policies, and carrying out removals more ‘efficiently’. The report does however address some of the problems that negatively impact refugee claimants. For example, it mentions that there are “notable differences across the country in detention practices within the first 48-hour period, when it is left to the CBSA officer’s discretion to detain or release an individual.” In some regions the great majority of asylum seekers are either not detained or very quickly released, even when traveling with false documents, whereas in others a significant number are detained for longer periods. The report suggests adopting guidelines to enhance consistency. The report also mentions that low-risk detainees are too often detained in provincial jails and suggests that this needs to change. Finally, it encourages the government to examine alternatives to detention, especially for more vulnerable groups such as minors and persons with mental health problems, both for humanitarian reasons and as a way of cutting costs. These are all excellent suggestions.
Failure to recognize refugee claimants’ specificity
The report however fails to recognize that there are major differences between the situation of refugee claimants who are detained upon arrival in Canada, on the one hand, and persons who are detained pending removal from Canada (i.e., persons whose refugee claim was rejected, persons whose visa has expired, and persons who have been deprived of their status in Canada because of criminal offenses).
This is not surprising. Under the heading “refugees”, CBSA’s official statistics lump together refugee claimants entering Canada and failed refugee claimants who are detained pending removal. In other words, the Government of Canada has no official statistics on the number of newly-arrived refugee claimants who are detained each year in Canada. When CBSA says that about 44% of detained migrants are “refugees”, this figure includes both newly-arrived refugee claimants AND people who are detained pending removal after their refugee claim has been rejected.
One cannot develop good public policy towards refugee claimants when one doesn’t even know how many are detained each year and whether numbers have increased or decreased, much less what proportion have mental health problems or other vulnerabilities. Moreover, the failure to treat refugee claimants as a distinct category within the detention system suggests that the Canadian government does not recognize that this group has specific rights and needs, even though the Immigration and Refugee Board (IRB) will eventually recognize over 40% of them as refugees, i.e. declare that they were refugees from the day they arrived.
Vulnerable persons
The report recognizes that CBSA needs to develop policies for dealing with vulnerable persons, notably minors and persons with mental health problems, including use of alternatives to detention. This is a very positive suggestion. Canadian immigration law provides that minors should only be detained “as a last resort”, yet in 2008-2009 over 500 minors were detained for immigration reasons. In addition, there is no screening for mental health problems and no consistent policy of releasing persons with such problems. This is clearly unacceptable and needs to change.
At a more basic level, there are many reasons to believe that all refugee claimants should be treated as potentially vulnerable. Multiple studies show that a high proportion of refugee claimants has been recently exposed to major trauma. Indeed, the IRB has for many years consistently recognized that over 40% of claimants are entitled to refugee status because they have suffered persecution involving various forms of violence. Preliminary results from the study we are conducting with refugee claimants detained in Canada’s two largest IHCs (Laval and Toronto) show that a majority of detained refugee claimants have experienced a high level of violence (e.g., torture, assault) or traumatic loss (murder or other violence against loved ones). Our preliminary results also show high levels of depression, anxiety and post-traumatic symptoms. Many newly-arrived refugee claimants speak little or no English or French and may have low literacy skills, impairing their ability to seek assistance and to navigate the system. In other words, vulnerability is the rule rather than the exception for refugee claimants. Yet, detained refugee claimants are even less likely to be released for reasons of vulnerability than other immigration detainees because vulnerability cannot be taken into account when the person is held for identity reasons.
Alternatives to detention
The report suggests expanding the use of programs such as the Toronto Bail Program, run by a non-profit agency that provides supervision for persons who meet its stringent conditions and do not have family or friends able to post a bond. This is a positive suggestion but does little to address the needs of refugee claimants, most of whom are detained for identity reasons and cannot be released unless the IRB concludes that CBSA has not made reasonable efforts to ascertain their identity. In such cases the Board has virtually no discretion to order conditional release even if the person is shown to be vulnerable. In order to better protect individuals, Board members should at least have that discretionary power. This would require amendment of the Immigration and Refugee Protection Act.
More fundamentally, it is inappropriate to detain refugee claimants in secure (i.e., prison-like) facilities except in the rare cases where there are serious grounds to believe that the person represents a threat to public safety. The vast majority are detained simply because they are unable to establish their identity to the satisfaction of an immigration officer. Yet, the 1951 Geneva Convention on the Status of Refugees stipulates that refugee claimants must not be penalized for traveling with false documents. Of course, States always argue that detention of refugee claimants is purely administrative, not punitive. However, in Canada, migrants are held in either prisons or prison-like environments that are experienced as punitive, involving constant surveillance by guards and cameras, subjection to rigid rules, and the use of handcuffs and shackles during transportation, including transportation to hospital for medical treatment. This is not to say that conditions are inhumane or abusive in CBSA holding facilities, at least in the Immigration Holding Centres. It’s simply that there is no good reason to detain refugee claimants in secure facilities when they are not even suspected of posing a threat to public safety. Deprivation of liberty is a breach of one of the most basic of human rights, and should not be used unless the person represents a danger to others.
Flight risk is sometimes invoked to justify detention of refugee claimants. Yet, failure to report to immigration or to attend their refugee claim hearing would mean giving up any hope of being accepted as a refugee. Persons whose claim is pending have every reason to show up for such proceedings. In any case, when there is a suspected flight risk Canadian immigration authorities already routinely use alternatives such as conditional release. This suggests that detention in secure facilities is unnecessary and that either release or use of less restrictive alternatives (e.g., conditional release, residence in a semi-open community facility) would be more appropriate.
The report indicates that over 30% of “low-risk” immigration detainees (no criminality, no danger to public) are held in provincial jails. This group is overwhelmingly composed of refugee claimants and failed refugee claimants. Conditions are generally harsher in provincial jails, especially when there is mingling with the criminal population. Imprisonment in provincial jails can be a very frightening and sometimes dangerous experience for persons who have no experience of criminalized environments and don’t know how to defend themselves. Detaining non-criminals in jails intended for criminals is simply unacceptable.
Alternative service delivery
The report suggests that the government “explore the merits of alternative service delivery arrangements for the daily operations of all IHCs”. The term “alternative service delivery” is a code word for privatization or similar cost-cutting measures. Yet, as the report recognizes, the operations of IHCs are already privatized to a large degree. CBSA contracts with private companies or with Correctional Services Canada to provide security (guards), transportation, meals, housekeeping and maintenance, while retaining responsibility for defining policies and managing IHCs.
The report invites CBSA to examine the feasibility of transferring the operation of Immigration Holding Centres to federal or provincial Corrections services or to private corrections company. The potential implications are very worrisome. Correctional institutions are accustomed to dealing with criminals and have developed a strong culture of repression that is completely inappropriate for dealing with refugee claimants who generally have no criminal background whatsoever and have often undergone severely traumatic experiences. Private corrections companies are typically profit-oriented and also more difficult to hold accountable.
A far better way to cut costs would be to stop detaining refugee claimants in secure facilities unless there are serious grounds to believe the person represents a threat to public safety, which is very rare for refugee claimants. Detention of refugee claimants in secure facilities represents a huge and mostly unnecessary cost, as well as being an infringement of basic human rights.
