ID Detention Reviews

When a person is detained under the Immigration and Refugee Protection Act (IRPA), the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) conducts mandatory detention reviews to determine whether continued detention is justified. Detention reviews are scheduled automatically by the ID — the detained person does not need to apply for a review.

The detention review regime is established in IRPA ss 54–60. Section 54 requires the ID to review the reasons for detention at prescribed intervals. Section 58 sets out the grounds on which the ID must order release, and the factors the ID must consider when deciding whether to order continued detention. The Immigration and Refugee Protection Regulations (IRPR), specifically ss 244–248, set out the factors relevant to grounds for detention.

Detention review schedule

IRPA mandates detention reviews at three intervals:

• First review: within 48 hours of detention (or as soon as practicable thereafter);
• Second review: within 7 days of the first review;
• Subsequent reviews: every 30 days thereafter, for as long as the person remains detained.

Reviews continue automatically — a detained person does not need to request them. If detention is ordered continued at a review, the next review is scheduled automatically.

Grounds for detention (IRPA s 58 and IRPR ss 244–248)

The ID must order release unless it is satisfied that one of the following grounds for continued detention exists:

• Flight risk: The person is unlikely to appear for an examination, hearing, or removal (IRPR s 245 lists relevant factors: ties to Canada, compliance history, history of non-compliance, etc.);
• Danger to the public: The person is a danger to the public — based on criminal history, current conduct, or other factors;
• Identity not established: The person has not established their identity and has not reasonably cooperated with CBSA efforts to do so;
• Designated foreign national: Designated foreign nationals (persons who arrived in an irregular group designated by the Minister) may be detained for up to one year without an ID review in some circumstances.

The review hearing

The detained person (or their counsel) may make submissions and present evidence at each review. CBSA presents evidence for continued detention. The ID member weighs the evidence and the applicable factors. The detained person need not testify — the burden is on CBSA to justify continued detention, not on the detained person to justify release.

At each subsequent 30-day review, the ID must consider whether circumstances have changed since the last review. Continued detention without change in circumstances may become increasingly difficult to justify over time, particularly given the constitutional protections against arbitrary detention under s 9 of the Canadian Charter of Rights and Freedoms.

Release conditions

If the ID orders release, it may impose conditions including: reporting requirements, a designated place of residence, a cash deposit or performance bond, prohibition on working, geographic restrictions, or surrender of travel documents. Breach of conditions may lead to re-arrest and detention.

Judicial review

Decisions ordering continued detention may be challenged by judicial review in the Federal Court, subject to leave being granted. In urgent cases (where there is imminent risk of removal), a stay of removal can be sought alongside the judicial review application.