Our firm has extensive expertise seeking release for individuals who have been detained for immigration reasons. We are also able to represent immigration detainees for purposes of any appeals, applications for judicial review, or habeas corpus applications.
Permanent residents and foreign nationals can be arrested under the Immigration and Refugee Protection Act (“IRPA”) when they are entering Canada if an officer considers it necessary in order for an examination to be completed, or if an officer has reasonable grounds to suspect that the person is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality.
Foreign nationals and permanent residents can also be arrested under IRPA under certain conditions with or without a warrant, broadly relating to whether the Officer has reasonable grounds to believe the person is inadmissible, is a danger to the public or is unlikely to appear for a future immigration process, or where the Officer has concerns with respect to the identity of a foreign national.
Whenever a foreign national or permanent resident is detained or arrested, they are entitled to be informed of the reason for their arrest or detention, their right to legal representation and their right to contact their government representative under Art. 36 of the Vienna Convention on Consular Relations.
Our office has significant experience with assisting individuals to navigate this process. We can assist persons who are seeking to be released from detention as soon as possible or who may be at risk of arrest and detention with ensuring their rights are protected.
A CBSA officer has the authority to release the detained person, other than a designated foreign national, before the Immigration Division holds a detention review. The officer can impose conditions on the release such as a financial security deposit or guarantee to ensure that the person appears at future proceedings such as an admissibility hearing or for removal.
An individual who is detained for immigration reasons has the right to have their detention reviewed by the Immigration Division within 48 hours of arrest, or as soon as practicable thereafter (because detention reviews are not held on weekends or federal holidays). If detention is ordered by the Immigration Division at the 48-hour detention review, the Division must review the reason for continued detention at least once within the following 7 days and at least once every 30 days thereafter.
At the detention review, the Minister’s counsel must establish that one of the following grounds for detention exists for the detention to be continued:
(a) The individual is a danger to the public;
(b) The individual is unlikely to appear for examination, an admissibility hearing, removal from Canada or at a proceeding that could lead to removal;
(c) The Minister is investigating a reasonable suspicion that the individual is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; or
(d) The Minister is of the opinion that the identity of the foreign national has not been, but may be established and they have not reasonably cooperated or the Minister is making reasonable efforts to investigate.
Even if there are grounds for detention, the Immigration Division may order a persons release from detention where there is an alternative to detention, a cash bond or guarantee is available, where the detention has been or is expected to be lengthy, where the best interests of a child are impacted by the detention, or where there are unexplained delays or a lack of diligence by the Minister, among other reasons.