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Irregular arrivals, potentially involving human smuggling operations, present many challenges for authorities identifying individuals involved in the case. Due to the premeditated nature of the operation, individuals often do not have documents, rely on fraudulent or fraudulently obtained documents, or have destroyed documents in order to hide their identity.
In instances of this nature where identity is unconfirmed, authorities cannot identify potential security and criminal threats, including human smugglers and traffickers, terrorists, or individuals who have committed crimes against humanity. It is an unacceptable risk to release into Canadian communities individuals whose identities have not been determined and who could potentially be inadmissible on the grounds of criminality or national security.
In order to ensure the fairness and integrity of Canada’s immigration and refugee systems, and to protect the safety and security of the Canadian public, it is essential that government authorities have the ability to detain, to impose conditions of release, and to remove those who are inadmissible to Canada.
More robust detention rules for individuals who arrive as part of a designated irregular arrival are necessary to ensure government authorities have sufficient time to:
- Conduct thorough and focused investigations and examinations of the facts;
- Positively confirm the identity of any individual who attempts to remain in Canada; and
- Identify potential security and criminal threats to the Canadian public.
Mandatory detention for designated irregular arrivals
Under the Protecting Canada’s Immigration System Act, an individual 16 years of age or older arriving as part of a human smuggling event would be detained for up to 12 months or until a final positive decision by the Immigration and Refugee Board of Canada (IRB) is made on their refugee claim, upon which they could be released.
Minors under the age of 16 would be exempt from the detention provisions designed to deal with all other designated foreign nationals.
If after 12 months a refugee claim has not been decided, the IRB would review a person’s detention and decide based on the facts presented whether there are grounds to continue the individual’s detention or to release the individual with mandatory terms and conditions (see below). If, after an examination of the facts the detention is continued, the individual would be entitled to a detention review at the IRB every 6 months after that.
Those individuals whose refugee claims are denied by the IRB would, if still detained after 12 months, be entitled to a detention review before the IRB and then, if still detained, every 6 months pending their removal from Canada. This provision would mitigate the risk of failed refugee claimants going underground or fleeing Canada to avoid removal.
Provision for early release from detention
The Protecting Canada’s Immigration System Act includes a provision that would allow individuals to apply to the Minister of Public Safety for early release from mandatory detention.
Under this provision, an individual may be released from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the person’s release.
Mandatory conditions of release
In cases where release is granted by the IRB, mandatory conditions of release would be imposed, and other additional conditions could be imposed. These mandatory conditions of release would be outlined in the Immigration and Refugee Protection Regulations to promote transparency, consistency and fairness in decisions related to release with conditions.
Enhanced grounds for detention
Investigation into possible criminality, serious criminality and organized criminality would be added as grounds for detention that would be considered by the IRB during a detention review. In the context of organized human smuggling into Canada, these new grounds would allow for the detention of suspected human smugglers. Adding to the existing grounds for detention (which already include security and human or international rights violations), would serve to further protect the safety of Canadians while an investigation is being conducted.
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