Immigration Division (ID)
Overview
The Immigration Division (ID) is the division of the IRB that conducts admissibility hearings and detention reviews. Admissibility hearings determine whether a person is inadmissible to Canada and, if so, which removal order should be issued. Detention reviews determine whether a person detained for immigration purposes should remain in detention or be released (see the detention review cycle: 48 hours → 7 days → every 30 days). ID hearings are adversarial — CBSA counsel appears for the Minister, and the person has the right to be represented by counsel.
Legal basis
- IRPA s 44 — an officer may prepare an inadmissibility report; the Minister decides whether to refer to the ID
- IRPA s 45 — after an admissibility hearing, the ID shall make a removal order, take no action, or allow entry
- IRPA s 55 — arrest and detention grounds
- IRPA s 57 — mandatory detention review cycle
- IRPA s 58 — the ID shall release unless satisfied that grounds for continued detention exist
- ID Rules (SOR/2002-229) — procedural rules for ID hearings
How it works
Admissibility hearings
When a CBSA officer has reasonable grounds to believe a person is inadmissible, the officer may prepare an inadmissibility report (s 44 report). The Minister then decides whether to refer the matter to the ID for a hearing. At the ID hearing:
- CBSA counsel presents evidence and submissions supporting the inadmissibility finding
- The person and their counsel can challenge the evidence, present their own evidence, and make submissions
- The ID member determines on a balance of probabilities (for most grounds) or on reasonable grounds to believe (for security and serious criminality grounds) whether the person is inadmissible
- If inadmissible, the ID issues the appropriate removal order
Three types of removal orders
- Departure order: the least severe; the person must leave Canada within 30 days and confirm departure; failure to depart converts to an exclusion order
- Exclusion order: the person cannot return to Canada for 1 year (or 2 years for misrepresentation); an ARC is required to return during the exclusion period
- Deportation order: the most severe; the person may not return to Canada without an Authorization to Return to Canada (ARC), which requires Ministerial approval; no time limit
Detention reviews
The ID is the body that reviews immigration detention at the mandatory intervals: within 48 hours, within 7 days, and at least every 30 days thereafter. The Minister bears the burden of justifying continued detention. See the detention review cycle concept page for the full framework.
Standard of proof in admissibility hearings
- Most inadmissibility grounds (criminality, health, financial, misrepresentation): balance of probabilities
- Security inadmissibility (s 34), organised criminality (s 37), serious criminality based on foreign conviction (s 36(1)(b)): reasonable grounds to believe (lower threshold)