Foreign nationals and permanent residents who have been detained by the Canada Border Services Agency (CBSA) due to an inadmissibility finding must appear before the Immigration Division (ID) of the Immigration and Refugee Board (IRB) for a detention review hearing if there are reasonable grounds to suspect that the person is a flight risk or a danger to the public. Furthermore, an officer may detain a person where it is suspected that a person is inadmissible on grounds of security, violating human and international rights, engagement in serious and organized criminality, or for failure to establish identity (applicable only foreign nationals).

 

Upon arrest, CBSA maintains discretion to continue the detention or to release the detainee. Where CBSA does not release an individual, the ID has a statutory mandate as per s.57 of the Immigration and Refugee Protection Act (IRPA) to hold a hearing within 48 hours of detention to review the reasons for detention. A further review is required to be conducted within the following 7 days, and then again once for every 30-day period that follows.

 

At the detention review, the ID will evaluate whether sufficient reasons remain for continued detention and whether the situation which led to the detention still exists. The hearings officer may order a person’s release and order any such conditions such as reporting to an immigration office on a regular basis. If reasons do however exist, the officer must consider a series of additional factors before a decision on detention or release is made such as: reasons for detention, the length of time in detention, whether there are any elements that can assist in determining the anticipated period of detention, any unexplained delays or unexplained lack of diligence caused by the CBSA or the person concerned, the existence of alternatives to detention, and the best interests of any child directly affected. 

 

Despite the above, different rules apply to Designated Foreign Nationals (groups that arrive in Canada irregularly and is designed as so by the Minister). Those who are 16 years and older are subject to mandatory detention and arrest.