Comments on Detention and Removals addressed to the Standing Committee on Citizenship and Immigration

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COMMENTS ON DETENTION AND REMOVALS ADDRESSED TO THE STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION March 1998

 

Introduction

The Canadian Council for Refugees is an umbrella organization uniting over 140 groups across Canada. We are concerned for the protection of refugees in Canada and around the world and for the settlement of refugees and immigrants in Canada.

The CCR has for many years been advocating for sensitive and fair detention and removal policies, for refugees and refugee claimants in particular, but also for others. We monitor detention and removal practices in the different regions and maintain a dialogue with Citizenship and Immigration Canada on these issues, through which we raise concerns about emerging problems and offer comments on draft proposals. In 1990 we produced a discussion paper Problems on the path to a just society: A human rights analysis of Canadian immigration detention law and practice. We made an extensive submission to Roger Tassé for his study of removals practices (1995-1996) and offered a forum for him to consult with NGOs. Issues we raised about how adjudicators handle detention reviews led to the recent decision by the Immigration and Refugee Board to issue chairperson's guidelines on detention. We provided comments on a draft version of the guidelines as well as on the draft CIC detention policy.

General comments

The enforcement functions of detention and removals are an unpleasant if necessary aspect of the application of the Immigration Act.

The CCR is not opposed to detention and removals. It is however our position that policies and practices relating to detention and removals need to conform to principles of fairness, full respect for rights and treatment with dignity.

In both detention and removals, fundamental rights are at issue. Those who are detained are deprived of their liberty, a basic human right that must never be arbitrarily withheld. Those who are removed may be returned to situations where their life, liberty and security of person are at risk. In some cases removal may separate families or represent effective exile.

The CCR starts from the premise that non-citizens deserve equal treatment with citizens in the kinds of law enforcement measures used against them and in the processes by which decisions are made about their fundamental rights. We mean by this that rights and protections offered non-citizens should correspond to the rights and protections offered citizens in comparable situations. This is a matter of basic respect for the non-citizen's rights as a human being.

Who are the people detained and removed? First and foremost, they are of course human beings, with human rights that must be respected. This point is obvious, perhaps, but it unfortunately needs to be made. In theory and in practice refugees, immigrants and other non-Canadians are treated as if their basic human rights mattered less than those of Canadians.

Furthermore, we cannot pretend that Canadian society is free of racism. Many of those detained and removed are people of colour: we therefore need to guard against situations where they become victims of racism.

We also note with concern the dehumanizing tendency to talk about "cases" or "inventory", instead of people.

Those without status in Canada are among the most vulnerable in our society. They have few rights and limited means to assert those rights. They are often isolated, without friends or families; they are generally unfamiliar with the protections offered them by Canadian rules and institutions; often they speak neither English or French. Because of this inherent vulnerability it is essential that the system offer adequate safeguards to ensure that non-citizens' rights are properly protected.

We are concerned that when detention and removals are discussed we hear a lot about the "vulnerability" of the system, and very little about the vulnerability of the people in the system. It is true that some people abuse the system - they find out its weak points and exploit them. We can certainly agree that measures should be taken to stop abuse. For example, we do not want Canada to be a haven for war criminals.

However, concern for preventing abuse of the system must not blind us to the fact that we also need to prevent users being abused by the system. We see how officials develop an attitude of suspicion towards those with whom they are dealing, looking for signs of dishonesty and bad faith. Suspicion in time gives way to cynicism and cynicism in turn breeds contempt. This attitude of contempt is unfortunately at times, but not by any means always, evident in the way enforcement officials treat people being detained or removed.

We must beware of building a system around the system-abusers. The measures we have in place should certainly be capable of dealing with abuse, but they must also be able to ensure that the rights and dignity of all are safeguarded.

In discussing detention and removals it is important to bear in mind the many different categories of people affected. There are those who have been in Canada for years, while others never managed to enter Canada at all (for example, visitors determined not to be legitimate at the airport and sent straight to the detention centre). Among those who are detained are the mentally ill. We see people who say they are refugees but have been denied the opportunity to make a claim because a removal order was already made against them. Some of those detained are people who are allowed to make a refugee claim but are nevertheless detained on arrival.

There are people whose permanent residence has been taken away because of a crime they committed. Some of them have lived nearly all their lives in Canada, having immigrated as a young child. We see people in detention who have been accused of being a security risk, without ever having a chance to hear the arguments against them. There are those who, for a variety of reasons, have overstayed their visas and lived and perhaps worked in Canada for months or years.

There are refused refugee claimants, a group which in itself contains a wide range of people. There is an unfortunate tendency to associate words such as "bogus" or "queue-jumpers" with refused refugee claimants. A few no doubt deserve such names, but there are many others who do not. They may be refugees whose claim was turned down in error or they may be fleeing situations of war and human rights abuses without meeting the narrow definition of Convention refugee(1). In the last few years we are increasingly seeing people who are stateless, often as a result of the citizenship laws adopted in the wake of the break-up of the Soviet Union.

Those detained and removed are not simply isolated individuals, but members of communities. For some who have only just arrived, their communities are abroad. Others however have employers, colleagues, friends and family in Canada, all of whom will be affected by the enforcement action. When a country is at war or in profound turmoil, as is the case of Algeria or former-Zaire, detentions or removals of people from that country have significant repercussions on the community in question. Although Canada currently has a policy of not deporting to Algeria or Congo-Kinshasa (former-Zaire), before the moratoria were announced detentions and removals continued for a considerable period despite escalating violence, causing enormous anguish to already distraught communities.

Comments on the Legislative Review Report

Chapter 7 of the Legislative Review report, Not Just Numbers, proposes some significant changes to Canada's immigration enforcement régime.

We welcome the report's recognition of the current problem with the apparent arbitrariness of detention decisions. The authors comment as follows on the wide powers of discretion in detention decisions under the Immigration Act: "With such broad powers given to officers to deprive persons of their liberty, concern has been expressed by many that in the absence of specificity in the Act, and with virtually no policy guidelines issued by the department, the standards for detention are not transparent and vary greatly from office to office and officer to officer" (page 104).

The report's solution to this problem is to develop "transparent and codified" detention criteria, which are intended to remove the discretion from decision-making and render unnecessary the current system of detention review before an independent decision-maker.

We cannot agree with the authors that the proposed criteria are transparent. On the contrary, we see a list of criteria that are open to all manner of disputes and interpretations. For example, persons are required to provide changes of address or lose provisional status and be detained. We are constantly hearing of cases where people have in fact informed CIC of a change of address but the information was never entered into the computers. Even more clearly problematic is the criterion that "the person is likely to appear for removal from Canada if required" (p. 105). This is by no means a clear and transparent criterion: it is a matter of judgment. Yet based on a officer's subjective judgment, a person could, in the authors' scheme, be detained, without right of review by an independent decision-maker.

The detention provisions in Rec. 122 reverse the burden of proof, calling for automatic detention if the person has failed to comply with any of the conditions of provisional status. This would mean detaining the person first and asking for explanations later.

Decisions on detention are tied in the report to the proposed new provisional status. We can see some advantages in a provisional status, insofar as people currently in process often have difficulty in getting access to services to which they are entitled (e.g. health, social, educational) because of confusion about their status. However, we must emphasize that a system involving provisional status must not be at the expense of a recognition of a person's human rights, no matter what their status.

The right to liberty is one such fundamental human right. We cannot accept a system that would propose loss of liberty as a disincentive to non-compliance. Non-compliance, in and of itself and without further grounds, is certainly not necessarily proof of circumstances serious enough to justify a sanction of last resort, such as detention. Using detention in this way is no more acceptable in immigration enforcement than it would be acceptable to detain anyone who failed to comply with, for example, traffic rules or income tax filing obligations.

Overall, the recommendations in Chapter 7 tend to criminalize and dehumanize non-Canadians. They run completely counter to the integration goals of the report, which recognizes the importance of promoting the quick and effective integration of newcomers into Canadian society. We cannot on the one hand proclaim ourselves an open and welcoming country, and on the other hand treat refugees, prospective visitors and others needing to establish their immigration status as less than human and as virtual criminals.

Of particular concern, in addition to the proposals regarding detention (Rec. 120) is the proposed automated tracking (Rec. 125), possibly via biometric cards. This proposal is intrusive and demeaning. No tracking measures should be imposed on non-Canadians that we as Canadians would not tolerate for ourselves. Privacy of personal information must be scrupulously respected.

We want to emphasize the likely effect of the report's proposals on refugee claimants, who should not normally be detained. Refugees fleeing human rights abuse come to Canada to find asylum from persecution. Many of them have experienced torture and other serious human rights violations; they often arrive highly traumatized and deeply worried about whether they will find protection. Many have reason to fear representatives of authority because of their experiences of persecution by their government. We need to treat refugee claimants in a way that takes all this fully into account. Yet the report makes no concessions for a person's status as a refugee claimant. Even though the report rightly recognizes that refugees need to be treated differently from immigrants and proposes a separate Protection Act to reflect this difference, the enforcement sections treat all classes, refugees and non-refugees, in the same way (under the Immigration, and not the Protection Act).

Among the conditions that refugee claimants would be obliged to meet to avoid detention are applying for a passport from their country of origin and being likely to appear for removal. To require a refugee who is fleeing persecution from his or her government to ask for a passport from that government is cruel and inconsistent and may put family and colleagues at home at risk of repercussions. To do so immediately upon the claimant's arrival, imposing detention for non-compliance, is absurd. Similarly, how can one expect a refugee to sound enthusiastic about removal? Refugee claimants would be effectively asked to undermine their own claim to refugee status or face detention.

Necessary conditions for fair removals

Although we are not opposed to removals, our members often oppose individual removals because the circumstances of the case as known to them lead them to conclude that the removal is unjust. Until and unless we can be confident that the system adequately protects those who need to be protected and behaves in a compassionate way, the credibility of the removals functions is in question. Fair removals depend on fair systems to determine who should be removed.

From our perspective the following conditions need to be met to ensure fair removals:

- All claiming refugee status must have access to a refugee determination before independent decision-makers, chosen on the basis of competence in a depoliticized process, and must have the opportunity to make an appeal on the merits.(2)

- A meaningful mechanism must be in place to ensure that Canada respects its other non-refoulement obligations, notably our obligation under the Convention Against Torture not to refoule anyone to a country where they are at risk of torture.(3)

- There must be an opportunity for a meaningful pre-removal risk review to take account of any changes in circumstances.(4)

- Requests from international human rights mechanisms not to remove a person must be respected.(5)

- Removals must be suspended to countries where there is a high level of generalized violence or massive human rights abuses.(6)

- There must be an opportunity for a meaningful review of humanitarian and compassionate considerations, with reference to international human rights instruments and taking account of long-term residence in Canada and situations arising from marriage breakdown.(7)

- Immediate family members must not be separated by removals.(8)

- No one should be removed on the basis of security risk without an opportunity to know and respond to the case against them.(9)

- Permanent residents facing removal on the basis of criminality must have the right to appeal the decision and have humanitarian factors considered.(10)

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Issues with removals

Where removals take place, they should be carried out in a manner that respects the dignity of the person. This unfortunately is not always the case. The following are some of the concerns we have with the way removals are carried out:

1. Some people are removed without being given any notice or the opportunity to pack their bags, say goodbye to family and friends and in other ways conclude their business. This happens not only to people who have eluded removal, but also to people who have conformed with all the requirements made of them. Sometimes they are invited to CIC offices under false pretences and immediately detained. In other cases, immigration enforcement officers come and arrest them at their home or at their place of work.

2. Some of the techniques of enforcement are excessive, including the use of handcuffs and leg irons, even for people who have shown no violence or lack of cooperation. In the past there have been cases of drugging of persons being removed: this is completely unethical. There have also been allegations of physical violence against persons being deported.

3. There are breaches of confidentiality where CIC informs the receiving government that the person is being removed, sometimes by the escorting officer who personally hands over the person's travel documents to authorities. In many repressive regimes this puts refused refugee claimants at risk: even if they were not in fact refugees, they may be suspected simply because they are known to have made a refugee claim.

Overall, our concerns relate to the culture within Enforcement, which too often takes a cynical and disrespectful attitude towards those with whom it is dealing. This is not necessarily seen in all regions: in fact, there tends to be striking regional variation, with much greater sensitivity shown in smaller centres. Confidence in the Enforcement Branch has been undermined by the Winnipeg cases of forgery(11) and by allegations of intimidation, verbal abuse, racism and lack of cultural sensitivity. Many of the concerns are outlined in the Tassé report(12).

Unfortunately the failure of CIC to give clear and decisive follow up to the recommendations in the Tassé report means that NGO confidence in the removals function continues to be very low.

A fundamental issue is the lack of clear accountability. Immigration officers are the only Canadian officials with the power of arrest that are subject to no independent oversight. When allegations of abuse by immigration officials are made, there is no external mechanism for investigating the allegations. Such a mechanism is urgently required so that corrective action can be taken where there has been improper behaviour, or on the other hand, so that the officers involved can be exonerated if they have been wrongly accused.

We note also the importance of regular and meaningful exchange between CIC and NGOs, recognized by Tassé in his report. Efforts at dialogue have considerable potential: the working committee established in Montreal to address complaints about the treatment of Algerians is a case in point.

Roger Tassé's report and the Legislative Review report both make reference to the need for better communication of data relating to removals(13). This is something that we have for many years been calling for. Our efforts to inform ourselves of even basic information frequently wear us down because of the enormous output of energy required for minimal results.(14) This applies also to information about changes in policy, for example the list of countries to which Canada does not generally remove.

Finally, we want to emphasize the need for leadership. Top officials must clearly and consistently reject breaches of international law and show respect for people being removed, setting the tone and the standards for those officials working directly on removals.(15)

Recommendations relating to removals

1. Priority should be given to positive consideration of the Tassé report recommendations, including his central focus on what he calls "people" issues.(16)

2. An effective code of ethics for removals should be developed and adopted.

3. Removals staff should be provided with training on ethical principles and standards.

4. An independent, impartial and accessible complaints procedure should be set up.

5. An external review mechanism should be established to ensure compliance with international standards.

6. Comprehensive, detailed data on removals activities should be regularly made available.

7. Information relating to policy and program matters should be regularly communicated, particularly to NGOs.

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Issues with detention

CCR concerns with detention relate to two main areas: decision-making about detention and release, and conditions of detention.(17)

The right to liberty is a fundamental human right, yet those detained under the Immigration Act find their right to liberty weighs very little in the balance.

As noted above, Not Just Numbers outlines the current problems with the arbitrary nature of decisions. This certainly is our perception. We have been waiting for an extraordinarily long time for the departmental policy on detention which we hope may to some extent at least address problems of arbitrariness(18). The Chairperson's guidelines for adjudicators, released March 12, are also a step in the right direction.(19)

In the meantime, our concerns with decision-making on detention include:

1. Detention of refugee claimants.(20)

2. Detention of minors.(21)

3. Long-term detention (once people have been detained for some time the regular detention reviews can become pro forma with the same arguments repeated. As a result, people have been detained for months or even years).(22)

4. Detention of people for whom no enforcement action is expected within the foreseeable future.(23)

5. Wide regional variations in detention decisions.(24)

Concerns with conditions include:

1. Inadequate access (for visitors, NGOs, lawyers, family members).(25)

2. Lack of availability of legal aid.

3. Minors detained in centres for adults (with or without their parents).

4. Lack of access to education for minors.

5. Lack of adequate medical care.

6. Detention of individuals in criminal detention centres.

7. Lack of adequate facilities for women.

8. Lack of provision for families to spend time together.

9. Excessive use of restraints (handcuffs and/or leg irons), including for people who have been cooperative.

Recommendations relating to detention(26)

 

1. New detention provisions should be drawn up with reference to provisions in other comparable domestic and international legal contexts, with a view to ensuring that non-Canadians receive equal treatment with Canadians(27).

2. An accessible, effective complaints mechanism should be established. It should be easy for detainees, NGOs, family members and counsel to access.

3. CIC should adopt a policy on detention with a view to achieving greater consistency in decision-making and to ensuring that officers are sensitive to the fact that liberty is a fundamental human right, protected under the Charter.

4. The application of the Chairperson's Guidelines for adjudicators and the CIC detention policy, once adopted, should be monitored.

5. Measures should be taken to ensure improved access to detention centres, including for NGOs.

6. Standards for detention centres should be adopted, in conformity with relevant international standards. Compliance with standards should be evaluated through an external monitoring process.

1. The UNHCR Standing Committee Conference Room Paper Return of persons not in need of international protection, 30 May 1997 (EC/47/SC/CRP.28), describes some of the situations in which rejected asylum seekers may nevertheless be in need of international protection (at Para. 17). According to this paper, "The Office hopes that a clearer identification will be reached of those persons who, while not necessarily Convention refugees, would nevertheless be exposed to danger if returned."

2. The current refugee determination system is fundamentally flawed in that (1) decision-makers are appointed in a politicized process, which calls into question their independence, and without adequate attention to their competence; (2) there is no appeal on the merits, meaning that mistakes often cannot be corrected. Another problem affecting a small number of people is that a claim cannot be made if the person has had a removal order made against them. This has resulted in refugees, through misunderstanding, misinformation or intimidation, being denied access to the refugee determination process.

3. The Post-Determination Refugee Claimant in Canada Class (PDRCCC) is intended to address risk issues other than those covered by the Refugee Convention. However, many people are excluded from eligibility for consideration in this class. Furthermore, the PDRCCC definition makes no reference to the Convention Against Torture and is not fully consistent with it.

4. There is at present no systematic review, despite the fact that months or even years may pass between the refugee and risk decisions and removal (although CIC has expressed its objective of performing the risk review as close as possible to removal).

5. Canada has recently ignored such requests from the United Nations Committee Against Torture (in the case of Tejinder Singh Pal) and from the Inter-American Commission on Human Rights (in the case of Roberto San Vicente).

6. Currently the Minister is responsible for deciding on moratoria countries, on the basis of advice from the Advisory Committee for Country Conditions for Removal. As the Legislative Review report points out, this committee's process lacks transparency (page 119). In the recent past, removals continued to Zaïre and Algeria for a considerable period despite the dramatic nature of events in those countries, before moratoria were declared. Canada continues to have no moratoria for many other countries where there are massive human rights violations. We continue to allow removals to Iraq and Nigeria, despite our official opposition to the two regimes in question.

7. There are many concerns with the manner in which H & C reviews are currently conducted, with results frequently inconsistent and cases where it is clear officers have not in fact considered the submissions made. There is also a lack of coordination between H&C decision-making and removals, leading on occasion to a person being removed despite the fact that a positive H&C decision had already been made in the case.

8. This currently happens where, for example, a person is removed despite the fact that his/her spouse is still in the refugee determination process.

9. The current provisions which lead to people being removed on the basis of evidence they cannot see is profoundly unfair.

10. The current process of "danger" certification leads to situations of extreme hardship, where people are removed despite the fact that all their ties are in Canada. This is particularly unacceptable in the case of people who immigrated to Canada while children: their criminality is essentially a Canadian problem.

11. The forgeries committed by the manager of the Winnipeg CIC office prompted the Department to commission Roger Tassé to conduct his review of removals processes in September 1995.

12. Removals: Processes and People in Transition, report prepared by Roger Tassé, O.C., Q.C., Gowling, Strathy and Henderson for Citizenship and Immigration Canada, February 1996.

13. Removals: Processes and People in Transition, Rec. 6; Not Just Numbers, Recommendation 154.

14. The UNHCR in its paper Return of persons not in need of international protection, notes that often statistical data on enforced removals of asylum-seekers is not available because no distinction is made between asylum seekers and others in the data. The UNHCR encourages "receiving States to develop improved methods of collecting such data to enable States to monitor better the rate of returns of rejected asylum-seekers to countries of origin." (Para. 21).

15. The recent decisions by the government to remove individuals despite requests for stays from international human rights mechanisms (mentioned above, note 5) unfortunately send a message to removals staff that international standards do not necessarily have to be respected.

16. cf. Not Just Numbers, Recommendation 153.

17. For more information about CCR concerns with detention, please refer to our 1990 discussion paper, Problems on the path to a just society: A human rights analysis of Canadian immigration detention law and practice, our May 1994 report Refugee Detention in Canada, our June 1994 Resolution on Detention, our 21 April 1997 letter to Michel Meunier, A/Director General, Adjudication Division, Immigration and Refugee Board.

18. The policy was about to be released in September 1996 but was sent back for further discussion.

19. While we welcome the issuance of these guidelines and hope that they may lead to greater consistency, we regret the limited scope of the guidelines. They only briefly refer to refugees and do not mention the UNHCR's Guidelines on the Detention of Asylum-Seekers. Important questions relating to minors are similarly given only cursory treatment. The guidelines' focus on long-term detention ignores the need to address problems relating to initial decisions by adjudicators to detain or maintain detention.

20. The UNHCR has issued Guidelines on Detention of Asylum Seekers addressing many of the questions that need to be considered in relation to the detention of refugee claimants. They state: "The use of detention against asylum seekers is, in the view of UNHCR, inherently undesirable."

21. Minors should only be detained in exceptional circumstances. The Convention on the Rights of the Children needs to be a central point of reference. In cases where parents of young children are detained, attention needs to be paid to family unity. The UNHCR Guidelines on Detention of Asylum Seekers also has comments on the detention of persons under the age of 18.

22. The case of Rodolfo Pacificador who has been detained for 6 1/2 years in a Toronto jail is exceptional. Nevertheless it is not uncommon to find people detained for over a year.

23. For example, in 1997, after a moratorium had been declared on deportations to Zaire in view of the turmoil in that country, two Zairois continued to be held in the Montreal detention centre for months before they were finally released.

24. For example, Vancouver's detention centre has recently been closed down for lack of clientele, while Montreal and Toronto continue to see significant numbers of people detained.

25. We support the call in Not Just Numbers for "access to telephones, to counsel and to non-governmental organizations" (page 106).

26. CCR Resolution 35, June 1994 (attached) contains a more detailed series of recommendations.

27. The 1985 report of the Standing Committee on Labour, Employment and Immigration makes a somewhat similar proposal: "we suggest strongly that consideration be given to the question of whether detained refugee claimants should continue to be governed by the procedures contained in Canada's current Immigration Act or by procedures and criteria established specifically for refugee claimants, which will at least offer the same level of protection that Canadians enjoy under the Criminal Code of Canada." (36:9-10)

 

Mar 1998