Immigration Detention

The Canada Border Services Agency (CBSA) has the legal authority under the Immigration and Refugee Protection Act (IRPA) to detain certain foreign nationals and permanent residents when statutory grounds for detention exist.

Individuals may be held in a designated Immigration Holding Centre (IHC) or, where capacity limitations require, in a provincial correctional facility. Although immigration detention is an administrative process rather than a criminal sanction, the consequences can be severe — particularly where detention continues for an extended period without effective legal advocacy.

Under the Canadian Charter of Rights and Freedoms and the IRPA, every person detained for immigration purposes is entitled to a prompt and independent review of their detention by the Immigration Division of the Immigration and Refugee Board of Canada (IRB). The first review must occur within 48 hours of detention or as soon as reasonably practicable thereafter, followed by a review within 7 days, and subsequent reviews every 30 days for as long as detention continues.

Our office provides urgent representation before the Immigration Division and advocates for release through strategic legal submissions, evidence gathering, and comprehensive release planning.

Statutory Grounds for Immigration Detention

CBSA may detain an individual where there are reasonable grounds to believe that one or more of the following circumstances exist.

Flight Risk — IRPA, s. 55(2)(b)

A person may be detained where CBSA believes they are unlikely to appear for future immigration proceedings, examinations, admissibility hearings, detention reviews, or removal arrangements.

Factors commonly considered include:

Previous compliance with immigration requirements;
History of missed appointments or reporting obligations;
Family, employment, and community ties in Canada;
Availability of travel documents;
Previous removal orders or enforcement actions; and
Overall willingness to comply with immigration processes.

We challenge allegations of flight risk by presenting evidence demonstrating stability, accountability, and meaningful ties to Canada.

Danger to the Public — IRPA, s. 55(2)(a)

Detention may be justified where CBSA has reasonable grounds to believe an individual poses a danger to the public.

Relevant considerations may include:

Criminal convictions;
Outstanding criminal charges;
Patterns of violent or concerning conduct;
Breaches of court orders; and
Other objective evidence demonstrating a risk to public safety.

The assessment must be based on credible evidence rather than assumptions or speculation. Our office carefully reviews the evidence relied upon by CBSA and advances arguments supporting release where the risk can be appropriately managed through conditions.

Identity Not Established — IRPA, ss. 55(2)(c) and 55(3)(b)

CBSA may continue detention where a person's identity has not been satisfactorily established.

This ground often arises where:

Identity documents are unavailable;
Documents require verification;
Conflicting biographical information exists; or
CBSA requires additional evidence to confirm identity.

Once identity concerns have been resolved and cooperation has been demonstrated, detention on this basis may no longer be warranted.

Detention Review Process

48-Hour Detention Review

The initial detention review is the first opportunity to seek release and generally occurs within 48 hours of detention.

At this hearing, the Immigration Division assesses whether the legal grounds for detention remain justified and whether reasonable alternatives to detention are available.

Upon being retained, we immediately begin:

Reviewing CBSA disclosure;
Gathering supporting documentation;
Identifying suitable bondspersons;
Developing a release strategy; and
Preparing legal submissions advocating for release.

Early preparation is often critical to securing release at the first review.

Seven-Day Detention Review

Where detention is maintained following the initial review, a second hearing must be conducted within seven days.

During this period, we strengthen the release proposal by:

Obtaining additional documentary evidence;
Securing community support letters;
Addressing concerns identified by the Immigration Division;
Finalizing bond arrangements; and
Preparing detailed submissions responding to CBSA's position.

The seven-day review often presents a significant opportunity to demonstrate changed circumstances and establish a stronger basis for release.

Thirty-Day Detention Reviews

Following the seven-day review, the Immigration Division must conduct further reviews at least every thirty days.

At each subsequent hearing, we continue to challenge the legal basis for detention and highlight factors supporting release.

Particular emphasis may be placed on:

The cumulative length of detention;
Progress toward establishing identity;
Availability of removal arrangements;
Compliance history while detained; and
The effectiveness of proposed release conditions.

Canadian jurisprudence recognizes that prolonged detention is an increasingly significant consideration in determining whether continued detention remains justified.

Alternatives to Detention

The Immigration Division is required to consider whether less restrictive alternatives can adequately address CBSA's concerns before ordering continued detention.

Depending on the circumstances of the case, alternatives may include:

Reporting requirements — regular reporting to CBSA at specified intervals.
Bondsperson (surety) — a responsible individual who agrees to supervise the detainee, assist with compliance, and provide assurances to the Immigration Division.
Financial bond — a monetary deposit or performance bond intended to encourage compliance with immigration obligations.
Electronic monitoring — in higher-risk cases, electronic monitoring measures may be considered as part of a release plan.
Residential conditions — requirements that a person reside at a specific address approved by CBSA or the Immigration Division.

Our office develops individualized release plans designed to directly address the concerns raised by CBSA. We also prepare bondspersons to testify before the Immigration Division and present evidence demonstrating that detention is no longer necessary.

Urgent Representation Before the Immigration Division

Immigration detention matters require immediate attention. The first detention review takes place quickly, and the evidence presented during the early stages of detention can significantly influence the outcome.

If you, a family member, or a loved one has been detained by CBSA, prompt legal representation can greatly improve the prospects of release.

Our RCIC-IRB practice provides urgent representation before the Immigration Division, including: