E/CN.4/2006/7/Add.2
page 19
76.
Flight risk is presented as a justification for detention under another ground, too, that the
person is unlikely to appear for the next hearing or for removal. The Working Group observed
that, in practice, the Immigration Division occasionally maintains asylum-seekers in detention on
the ground that in claiming asylum they stated that they fear persecution if deported back to their
home country. As a consequence, they have strong motives to fear removal and are, allegedly,
not likely to appear. The Working Group is concerned that this line of reasoning leads, in
practice, to persons being detained on the basis of having claimed refugee status.
2. Practical aspects of detention under immigration law giving rise to concerns
77.
In addition to the concerns arising from the IRPA provisions governing detention and
their application, the Working Group is concerned by a number of practical aspects of the
detention of aliens under IRPA which considerably impair their capability to effectively seek
release from detention.
78.
Each person detained under the immigration law is informed of the right to retain legal
counsel and afforded an opportunity to contact legal aid lawyers. There is, however, no
requirement that immigration detainees be assisted by a lawyer. As in the criminal law sphere,
legal aid is regulated at the provincial level, and the level at which legal aid programmes cover
immigration detention varies greatly from province to province (to a much greater extent than in
respect of criminal legal aid). The fact that immigration detainees are mostly held in detention
facilities at a fair distance from major urban centres also constitutes a practical barrier to their
access to free legal representation. The distance from urban centres also renders the access of
NGOs assisting asylum-seekers to persons detained in immigration holding facilities more
difficult. When asylum-seekers are held in provincial prisons among the criminal population,
NGO access to them is even more difficult.
79.
The Working Group also noted that many of the immigration detainees do not really
understand the legal process to which they are being subjected and why exactly they are being
detained. The legal system and the culture underlying it are entirely unfamiliar to migrants and
asylum-seekers coming from many countries, who are not accustomed to the heavy reliance on
paperwork and its crucial role to obtain release from detention. In some provinces (notably
British Columbia), otherwise unrepresented immigration detainees are provided with duty
counsel for their first detention review hearings. But that is not the requirement under the law
and not the case in the two provinces with by far the most cases, Ontario and Québec. While
interpretation is provided at the detention review hearings, the detainees do not have access to an
interpreter ahead of the hearing and are thus unable to adequately prepare themselves.
80.
In Québec, Ontario and British Columbia, the three provinces that share more
than 95 per cent of the immigration detainee population, the CBSA runs immigration detention
facilities. In all other provinces, immigration detainees are placed in custody in ordinary
provincial jails. Where the CBSA deems that a foreigner poses a security risk or is at risk of
flight, however, it will rely on provincial correctional facilities also in Québec, Ontario and
British Columbia. In the provincial detention facilities that the Working Group visited,
immigration detainees are held together (co-mingled) with persons held under criminal law,
mostly remand detainees, but also convicts. In Québec, immigration detainees are assessed at
admission into a provincial detention centre as to the security level they require (as are remand
prisoners), and will therefore be assigned to maximum or medium security quarters. In Ontario
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents