Many immigration detainees fight for their freedom with no lawyer. A new Ontario program aims to change that

Of note:

People detained for immigration violations will now have better access to free legal representation to fight for their release.

Legal Aid Ontario has launched a one-year pilot program to make sure anyone in immigration detention in the province can be represented by a lawyer at their detention reviews.

No advance application is necessary as lawyers with the Immigration Detention Representation Program will be present at the beginning of each detention hearing to offer assistance.

Numerous studies have underscored the importance of legal representation in improving a detainee’s chances of getting released. However, securing a lawyer has often been a problem for those held behind bars and unfamiliar with the system.

“For decades, immigration detainees have fallen through the cracks. For decades, people have languished in immigration detention for longer than they should have because of the lack of legal representation,” said Queen’s University immigration law professor Sharry Aiken.

“You’re locked up and have limited access to the outside world. You may not even have a functional cellphone if you have been detained directly off an airplane. You may not have a local number (of a lawyer).”

According to an audit commissioned by the Immigration and Refugee Board, counsel represented a detained person at only 38 per cent of hearings held in Ontario in 2017. That compares to the 70 and 76 per cent in the regions west and east of the province, respectively.

Canadian border officials can detain inadmissible foreign nationals such as undocumented residents and failed refugee claimants awaiting removal, or permanent residents convicted of serious crime if they believe the individuals are a flight risk or a danger to the public.

According to the latest government statistics for 2019-20, a total of 8,825 people — 5,265 in Ontario alone — were held for immigration violations; 68 per cent in immigration holding centres; 19 per cent in provincial jails; and 13 per cent in other facilities.

The detainees were held for a combined 115,559 days or 13.9 days on average. About three per cent, or 241 of them, were kept for more than 99 days.

COVID-19 outbreaks in jails have put institutional detention under the spotlight, prompting authorities to urge correctional services and the parole board to release some low-risk offenders in order to slow the spread of the virus. Earlier this month, some immigration detainees in Montreal staged a third hunger strike, seeking their release because of fears around the coronavirus.

“Legal Aid Ontario is committed to serving people in detention who need our help, and to ensuring that immigration detainees have access to fair and meaningful detention reviews,” said Aviva Basman, a manager at the Refugee Law Office, which administers the project.

“This pilot program is partly a response to the unprecedented nature of the pandemic and its impact on incarcerated people, who are subject to harsh and restrictive detention conditions. … It is also a response to historically low levels of representation in Ontario and the need to increase access to counsel for this population.”

In December, Legal Aid Ontario announced an increase to the number of hours available on legal aid certificates for lawyers to prepare for detention review hearings.

Counsel may now bill as much as three hours of preparation time for each detention-review hearing, in addition to the time spent in the hearing. Previously, only one hour of preparation time was available for the second and further hearings.

While news of the immigration-detention pilot program is welcomed, Aiken of Queen’s University said it is only “a half measure” given the one-year duration of the initiative.

“I’m pleased to see the project. There’s a need for this. But I am concerned it may not be sufficient,” said Aiken. “It doesn’t appear to have any sustainable source of funding within the legal aid program.”

Source: Many immigration detainees fight for their freedom with no lawyer. A new Ontario program aims to change that

Canada is releasing immigration detainees at ‘unprecedented’ rates amid COVID-19 fears

Seems like calls have been listened to. Will see if the opposition raises this as a question period or committee issue:

The number of immigration detainees held in provincial jails and immigration holding centres across Canada has dropped by more than half since COVID-19 was declared a global pandemic, according to data provided to Global News.

And recent decisions from the Immigration and Refugee Board of Canada(IRB), the administrative tribunal that presides over immigration refugee matters, show how fears over COVID-19 are playing a significant role in some rulings to release immigration detainees.

On March 17, there were 353 immigration detainees held in provincial jails and immigration holding centres across Canada, according to data from the Canada Border Services Agency (CBSA).

By April 19, that number dropped by more than half to 147 detainees, 117 of whom were being held in provincial jails. The remaining 30 were held in one of Canada’s three immigration holding centres located in Toronto, Laval, Que., and Surrey, B.C.

“We would never normally see such a dramatic drop in detention (detainees) in such a short period of time. That’s unprecedented,” said Swathi Sekhar, an immigration and refugee lawyer based in Toronto.

A number of legal and advocacy groups have been calling for the release of immigration detainees and people held in jails and prisons who are not deemed risks to public safety due to the rising number of COVID-19 cases in these facilities, and the conditions there that make it difficult to isolate and control the spread of infection.

The majority of the immigration detainees held in jails are located in Ontario, which has been grappling with COVID-19 cases in its correctional facilities. Thousands of inmate in Ontario jails have been released in recent weeks as the province grapples with the outbreak.

Thirty-three of the 117 immigration detainees held in provincial jails as of April 19 were detained at the Maplehurst Correctional Complex in Milton, a combined maximum-security jail for remanded prisoners and a medium/maximum-security jail for convicted offenders serving sentences of less than two years.

Foreign nationals and permanent residents can be detained — sometimes indefinitely — by CBSA officers if the person is deemed unlikely to appear for an immigration proceeding like a hearing, if the person is deemed a threat to public safety or if the person’s identity is under question. Most detainees are held on the grounds that they are unlikely to appear for proceedings or because of questions over their identity.

Immigration detainees are held on administrative and not criminal grounds like a typical jail or prison inmate. Immigration detainees can be held in one of Canada’s three immigration holding centres, which resemble medium-security prisons, or in provincial jails across the country, depending on the circumstances of their case, or if there is no immigration holding centre in that part of the country.

Last month, the Canadian government enacted an emergency order under the Quarantine Act that prohibits entry by individuals into Canada for the purpose of claiming refugee protection.

“This new order has reduced the number (of) asylum seekers remaining in Canada or being detained,” a CBSA spokesperson said in an email. “Also, since a lot of our admissions into (immigration holding centres) or provincial facilities are directly related to traveller volumes, it is not unexpected to see the overall number of admissions go down.”

“CBSA officers are asked to focus efforts to explore all viable alternatives to detention for all cases, where there is no public safety concern.”

Recent detention review decisions provided to Global News from the IRB show how COVID-19 is being factored into determining whether or not to release someone from immigration detention.

One IRB decision from April 3 involves a Colombian man who had been detained in the Toronto immigration holding centre since Jan. 23 because he was deemed a danger to the public and unlikely to appear for his removal from Canada to Colombia. However, he was released on a bond in large part due to the risk of being exposed to COVID-19 while in detention. He was ordered to abide by a number of strict conditions as part of his release.

The IRB decision-maker, Jacqueline Swaisland, stated that the man, Angelo Rincon, has a history of non-compliance with immigration laws “at least in three countries” and has also violated criminal laws in Canada and the United States. This includes a conviction for possessing a controlled substance for the purpose of selling, another conviction related to a number of break-and-enters in the Greater Toronto Area last year and possession of property obtained by crime.

The decision-maker said that while Rincon was deemed a danger to the public due to his criminal history, “I find the danger that you pose to be at the low end of the spectrum” because of the limited sentences he had received for his convictions, his “stated remorse under sworn testimony” and “the fact that there has been no violence in the commission of any of the offences you have been involved in…”

In determining whether to release Rincon from detention, Swaisland stated that Rincon had already been held in detention for more than two months, something that weighs in his favour, and “with respect to anticipated length of detention [it’s] agreed by all parties that at this point it is unknown because of the COVID-19 pandemic.”

“And it could be long given Canada is currently not enforcing removals and given that Columbia is not permitting the repatriation of even (its) own nationals and it is not clear how long that will go on for given the current COVID-19 pandemic,” Swaisland stated.

Last month, the CBSA temporarily halted deportations of people whose refugee or immigration claims had been rejected, with the exception of serious criminal cases that will be evaluated on a case-by-case basis.

The decision goes on to note that Rincon’s counsel provided “significant documentation” on the risks that someone in detention faces and his own fears associated with his potential exposure to the virus in the facility due to an underlying condition. TVO reported last month that an employee at the Toronto holding centre had contracted COVID-19 and had been in self-isolation.

“I find that the risk that you face are not at the same level of detainees in correctional facilities (particularly) given that there is such a limited number of the detainees currently being housed at the immigration holding centre, 15 as of today and given the significant steps that are being taken to reduce the risks to individuals being detained at the holding centre currently,” Rincon’s decision states.

“(But) even though the immigration holding centre is taking significant precautions, they are not perfect. And you still have a high risk of exposure and significant restrictions on your ability to self-isolate in a manner that the documentary evidence seems to suggest that is required with this virus.”

COVID-19 is also cited in an IRB decision from March 30 involving a Chilean woman who had been detained at the Toronto immigration holding centre since March 17 because she was deemed unlikely to appear for her immigration proceedings. The decision states that the woman may be released from detention as long as she abides by a number of conditions, including living at a shelter and reporting regularly to the CBSA.

Her identity and some of the details of the decision are redacted, as she has a pending refugee claim, which is subject to privacy rules. The decision notes that the woman’s refugee claim is on hold for the time being, and proceedings will resume “once the pandemic is addressed and the Immigration and Refugee Board begins to hear and process claims again.”

“You are now waiting for your (refugee) hearing which under normal circumstances can be a long process and everything is delayed now due to the pandemic,” the decision-maker, Julia Huys, said to the woman.

Huys goes on to describe the elevated risk of exposure to COVID-19 among detainees.

“I am taking note that the conditions in the immigration holding centre may be better than provincial jail but I find only slightly,” Huys said.

“So detained people will come into contact with many others including detainees, other detainees, guards, staff, and movement in and out of people … from the immigration holding centre. And I am also taking very seriously the fact that there has now been a case of COVID-19 at the immigration holding centre with one of the staff.”

An IRB spokesperson said in an email to Global News that it’s “open to decision-makers to consider any relevant factors in determining whether detention is justified, including COVID-19 and its potential risks to detained individuals.”

The IRB also noted that its immigration division is “entertaining requests from parties for early detention reviews, for example to consider alternatives where the person detained may have a vulnerability that places them at elevated risk from the virus or any cases with an alternative to detention.”

Source: Canada is releasing immigration detainees at ‘unprecedented’ rates amid COVID-19 fears

Gros and Muscati: Canada’s immigration detainees at higher risk in pandemic

Valid points, and applies to all detainees:

What does the COVID-19 pandemic mean for the hundreds of immigration detainees across Canada? Fear.

“Everyone is just scared,” a man in his 30s, detained in the Toronto Immigration Holding Centre, told Human Rights Watch. “People are especially afraid of the guards because they come in and out, and we know there was at least one (Canada Border Services Agency) officer who caught it. People are depressed and anxious.”

All immigration detainees are held on non-criminal grounds, and the vast majority are not considered to be a safety risk. Yet they’re held in prison-like conditions.

These detainees face significant risks to their physical and mental health if there’s an outbreak of COVID-19 in immigration holding centres and maximum-security provincial jails across the country. Detainees are forced into close proximity with others in facilities that tend to have poor ventilation, lack hygiene products, and provide limited access to medical care. While immigration holding centres are designated for immigration detainees, they resemble medium-security prisons, where detainees are subjected to constant surveillance and strict rules and routines.  The man detained in the Toronto Immigration Holding Centre told us that at least one guard has been coughing continuously for the entirety of his nightshift while he was making rounds among detainees.

Although Canada is obligated under international law to ensure that immigration detainees have access to medical care that is at least equivalent to the care available for the general population, a 2019 report on the state of Ontario’s jails found that “Correctional facilities are not equipped to provide consistent, equitable, or high-quality health care.” Under these conditions, it is impossible to practise the social distancing that the government is urging everyone to adopt.

Without a countdown to their date of release, no access to meaningful mental health and rehabilitation services, and under the constant threat of deportation, immigration detainees’ mental health often deteriorates.

An already debilitating situation is made worse by the looming threat of a COVID-19 outbreak. As of March 13, the Ontario provincial government barred personal visits to provincial jails, which also house immigration detainees. Moving forward, only professional visits – such as by lawyers – are permitted. Federally run immigration holding centres have instituted the same policy. But further isolating detainees by barring visits from family and friends has repercussions on the wellbeing of the detainees, many of whom already have mental health conditions.

On March 17, Catalina Devandas, the UN special rapporteur on the rights of persons with disabilities, echoed these concerns: “The situation of people with disabilities in institutions, psychiatric facilities and prisons is particularly grave, given the high risk of contamination and the lack of external oversight, aggravated by the use of emergency powers for health reasons.”

The federal government should take meaningful steps to prevent transmission in detention facilities across the country. Since March 13, the Ontario provincial government has allowed low-risk inmates who serve time only on weekends to return home. Immigration detention is not for the purpose of punishment but rather to ensure that a deportation can be executed; if removals are halted for public health or other reasons, the lawful basis for immigration detention evaporates and detainees should be released.

In any case, authorities should release immigration detainees who pose no public safety risk, and prioritize the release of those who are at a high risk of serious illness or death if they contract COVID-19, such as people with disabilities and older persons.

“Our lives are being put at risk,” the man in immigration detention told us, “in a place where we already struggle to cope.” The government should take the necessary measures to stop a preventable human catastrophe.

Source: Gros and Muscati: Canada’s immigration detainees at higher risk in pandemic