Immigration Division (ID) – Detention Reviews

The Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) is responsible for conducting detention reviews for individuals held in immigration detention by the Canada Border Services Agency (CBSA). Immigration detention is one of the most serious, high-pressure areas of Canadian immigration law. It involves deprivation of liberty, fundamental rights, and the constant risk of removal. A detention review is the legal mechanism through which a detainee may challenge the legality of their detention and seek release under conditions. Let's have an advanced, lawyer-level explanation of detention reviews, CBSA authority, legal strategy, statutory criteria, evidentiary burdens, release options, and best practices for counsel representing detained clients.

Detention in the immigration context is administrative rather than punitive. However, in practice, detainees face significant hardship—sometimes worse than in the criminal justice system. They may be housed in provincial jails, separated from their families, unable to work, and subject to strict surveillance. CBSA can detain foreign nationals, permanent residents (in certain circumstances), and refugee claimants. Detention reviews occur at fixed intervals: within 48 hours of detention, then within 7 days, and every 30 days thereafter. Each review requires CBSA to justify ongoing detention based on statutory grounds under the Immigration and Refugee Protection Act (IRPA).

CBSA Authority to Detain

CBSA may detain individuals for the following reasons:

• Identity grounds: The person’s identity cannot be established or there are unresolved identity doubts.
• Flight risk: There are reasonable grounds to believe the individual will not appear for an immigration proceeding, examination, removal, or other required step.
• Danger to the public: The person is a threat to public safety due to past criminality or behavioural issues.
• Inadmissibility on security, human rights, or organized crime grounds: In some cases, detention is mandated pending further review.
• Non-compliance: Failure to cooperate with removal or provide necessary documents.

Although detention is intended to be exceptional, CBSA often detains individuals aggressively in cases involving non-cooperation, identity concerns, or removal preparation.

The Role of the Immigration Division (ID)

The ID functions as an independent administrative tribunal that reviews CBSA’s decision to detain. At each detention review, CBSA must demonstrate that continued detention is justified. The detainee (or their counsel) must present evidence and argument showing that release is appropriate, safe, and feasible.

Unlike criminal bail hearings, immigration detention has no strict time limits. Some individuals are detained for months or years. Release depends heavily on persuasive advocacy.

Statutory Grounds for Detention

The ID evaluates four primary grounds:

1. Identity
2. Flight risk
3. Danger to the public
4. Inadmissibility/security concerns

1. Identity

Identity concerns arise when:

• documents are missing or fraudulent,
• the individual uses aliases or false documents,
• foreign authorities refuse to verify identity.

To overcome identity-based detention, counsel must show:

• identity documents are available or obtainable,
• the detainee is cooperating fully,
• the identity issue can be resolved without detention.

2. Flight Risk

Flight risk is one of the most frequently cited grounds. CBSA argues that the detainee will fail to appear for:

• removal,
• examinations,
• admissibility hearings,
• interviews.

Counsel must rebut this by providing:

• a responsible bondsperson,
• financial guarantees,
• a release plan with reporting conditions,
• evidence of ties to the community,
• proof of compliance history.

3. Danger to the Public

CBSA may argue danger based on:

• criminal convictions,
• violent behaviour,
• substance issues,
• past breaches of conditions.

Counsel must demonstrate:

• rehabilitation,
• support programs,
• treatment plans,
• strict supervision availability.

4. Security and Other Inadmissibility Grounds

These include:

• terrorism allegations,
• organized criminality,
• war crimes/human rights abuses.

Detention in these cases is more difficult to challenge but still reviewable.

Timeline of Detention Reviews

• First review: within 48 hours of detention.
• Second review: within 7 days.
• Subsequent reviews: every 30 days.

Even if a detainee loses a review, they will have another opportunity within 30 days.

Burden of Proof

The burden shifts depending on the stage:

• CBSA must justify initial detention.
• Over time, detention becomes increasingly difficult to justify.
• Prolonged detention attracts heightened scrutiny from the ID.

Long-term detention requires CBSA to show active steps toward removal or resolution.

Creating a Release Plan

A strong release plan is the foundation of successful detention advocacy. It typically includes:

• Bondsperson: a responsible individual willing to supervise the detainee.
• Financial bond: cash deposit or guarantee.
• Accommodation: fixed address where the detainee will reside.
• Reporting conditions: reporting to CBSA weekly or monthly.
• Treatment programs: if relevant for addiction or behavioural issues.
• Employment plans: if authorized.
• Community support letters: demonstrating stability and support network.

Counsel must demonstrate that release poses minimal risk and that any concerns can be mitigated by conditions.

The Role of a Bondsperson

A bondsperson is central to release. They must demonstrate:

• stable immigration status (ideally PR or citizen),
• stable employment or financial resources,
• a clean criminal record,
• ability to supervise the detainee,
• willingness to report breaches.

They may need to testify at the hearing.

Evidence Required in Detention Reviews

Relevant evidence may include:

• identity documents or applications for new documents,
• proof of cooperation with consulates,
• letters from family and community members,
• employment letters,
• medical evidence,
• counselling or rehabilitation records,
• travel history records,
• proof of compliance with previous conditions.

Proper disclosure is critical. Evidence must be submitted in advance unless the Member allows otherwise.

Challenges in Detention Litigation

Common challenges include:

• lack of identity documents due to foreign government delays,
• failure of foreign consulates to cooperate,
• pending criminal charges,
• uncooperative detainees,
• complex inadmissibility investigations,
• individuals avoiding removal historically,
• limited community support.

Counsel must address each challenge directly.

Long-Term Detention and the Supreme Court’s Guidance

The Supreme Court of Canada has emphasized that long-term immigration detention must be closely scrutinized and justified with clear evidence. Indefinite or prolonged detention without active steps toward removal may violate:

• section 7 of the Charter (life, liberty, security),
• section 9 (arbitrary detention),
• section 12 (cruel and unusual treatment or punishment).

Lawyers must highlight Charter concerns in long-term detention cases.

CBSA Non-Cooperation Allegations

CBSA often argues that the detainee is not cooperating. Counsel must demonstrate:

• active steps taken by the detainee,
• communication with consulates,
• timely responses to document requests,
• attendance at all interviews.

Proper documentation can rebut these allegations.

Danger to the Public – Mitigation Strategies

In cases involving criminality:

• letters from probation officers,
• treatment program attendance,
• psychological assessments,
• community support,
• employment opportunities

can significantly strengthen the release argument.

The Hearing Itself

Detention reviews are adversarial. CBSA presents their case first. Counsel must:

• challenge CBSA evidence,
• cross-examine CBSA officers when appropriate,
• present documentary evidence,
• call witnesses (including the bondsperson),
• make legal submissions addressing each statutory ground.

The Member evaluates credibility, consistency, and the proposed release plan.

What Happens After Release?

If released, individuals may be subject to conditions, such as:

• regular reporting,
• curfew,
• geographic restrictions,
• medical treatment,
• residence at a specific address,
• employment restrictions or requirements.

Violating conditions may lead to re-detention.

Importance of Skilled Counsel

Detention reviews require:

• rapid preparation,
• knowledge of ID procedure and case law,
• strategic presentation of release plans,
• effective cross-examination,
• coordination with family and community members,
• experience addressing CBSA allegations,
• credible and consistent advocacy.

The outcome of a detention review often determines whether someone regains their freedom or remains detained for months. High-quality legal representation can make the difference between release and prolonged incarceration.

Detention reviews at the Immigration Division are among the most urgent, sensitive, and complex hearings in Canadian immigration law. They require meticulous preparation, strong advocacy, and a deep understanding of detention jurisprudence. The stakes—personal liberty, family unity, health, and safety—could not be higher.