Irregular arrivals, potentially involving human smuggling operations, present many challenges for authorities identifying individuals involved in the case. Individuals who participate in such ventures 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 identifying possible 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 will 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.
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 designated irregular arrival will be detained until a final positive decision by the Immigration and Refugee Board of Canada (IRB) is made on their refugee claim or until they are ordered released by the IRB or by the Minister.
Minors under the age of 16 will be exempt from the detention provisions designed to deal with all other designated foreign nationals.
Release from detention for designated irregular arrivals
The IRB will review a person’s detention within 14 days after the person is taken into detention and then every six months thereafter. The IRB will 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.
The Protecting Canada’s Immigration System Act also allows individuals to make a request to the Minister of Public Safety for early release from 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.
The Minister may also, on his/her own initiative and at any time, release an individual from detention if the Minister is satisfied that the reasons for detention no longer exist.
Mandatory conditions of release
In cases where release is granted by the IRB, mandatory conditions of release will be imposed, and other additional conditions could be imposed by the IRB. The mandatory conditions of release will 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 will be added as grounds for detention for the IRB to consider during a detention review. This applies to all persons, not just designated irregular arrivals.
In the context of organized human smuggling into Canada, these new grounds will 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), will serve to further protect the safety of Canadians while an investigation is being conducted.
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