Opinion: Legislation gives government unprecedented power to order prolonged arbitrary imprisonment of refugees, including their children
With reports that Canada incarcerated 289 migrant children in detention facilities last year, Canada’s increasingly questionable policy of detaining refugee claimants, including children, is again in the spotlight.
In response to media comments that refugee children languish in detention, Minister of Public Safety Vic Toews and Minister of Citizenship, Immigration and Multiculturalism Jason Kenney explain that the practice of detaining refugee claimants and refused claimants is not new in Canada.
But their account glosses over the fact that the Harper government fundamentally changed Canada’s immigration detention policy in June 2012. The new law gives the government greater and more arbitrary authority to detain or, more accurately, to incarcerate refugee claimants, including children, for prolonged periods of time.
For many years, border officials have had the authority to detain non-citizens upon arrival in Canada, including refugee claimants. But the reasons for detention were precise and limited: a person could be detained if she or he was a danger to Canada, a flight risk, or lacked proof of identity. In addition, the Immigration and Refugee Board was required to review the reasons for the detention within 48 hours, and then again after seven days and every subsequent 30-day period to ensure the person was detained no longer than necessary.
In short, Canada did not allow the arbitrary detention of refugee claimants. During most years, no more than five per cent of claimants would be detained, most of them for a short period of time. The principal exceptions to that record are the boat arrivals on the West Coast of asylum seekers from China and Sri Lanka in 1999, 2009 and 2010.
The new law introduces significant changes to Canada’s immigration detention policies. It gives the government expansive powers to detain entire classes of refugee claimants for prolonged periods of time based on broad and vague criteria.
The new law gives the Minister of Public Safety unprecedented power to designate two or more foreign nationals who arrive in Canada together as “irregular arrivals” and to automatically detain them as a result. Importantly, the new law does not require the minister to support this designation with concrete evidence. It gives the minister the authority to designate people as “irregular” based on elusive and discretionary criteria such as administrative convenience or a mere suspicion — not actual proof — of human smuggling.
There was nothing like this under the old system. This is entirely new.
Under the new law, some designated claimants will undoubtedly be sent to provincial medium-security prisons and placed with the general prison population. Others will be sent to holding facilities with barred windows surrounded by razor-wire fences, surveillance cameras and guards. These are not “hotel style” facilities as the ministers assert. These are prisons.
The new law requires refugee claimants who are designated as “irregular” and detained to prove their identity while in prison. If they cannot do so within two weeks, they will be automatically detained for an additional six or even 12 months.
It is very difficult for refugee claimants to prove their identity in such a short period of time while in prison with limited access to legal counsel, interpreters and community support. Refugees are, by definition, persecuted people. It is often impossible or too dangerous for them to flee using proper identity documents.
The United Nations Refugee Convention, to which Canada is a signatory, allows refugee claimants to use false documents or no documents to escape persecution. It also prevents Canada from punishing refugee claimants who do not have prior identity documents. In reality, the new law does just that: It punishes refugee claimants who do not have identity documents by subjecting them to prolonged periods of incarceration.
These new mandatory detention laws apply to all persons designated as “irregular” who are over 15 years of age. Younger children will either be placed in the care of welfare agencies or will remain with their mothers in a detention facility. To put it simply, under this new law, refugee children will be separated from their parents or held in prison before authorities know anything about the persecution they have suffered.
The practice of detaining refugee claimants may not be new in Canada. But the long-term mandatory detention of refugee claimants, without any court oversight, certainly is. The ministers’ public statements gloss over the harsh realities of Canada’s treatment of asylum seekers, including children, under this new law.
Efrat Arbel holds a doctorate from Harvard Law School and is a post-doctoral fellow at the University of British Columbia Faculty of Law. Peter Showler is the director of the Refugee Forum at the University of Ottawa Faculty of Law and a former chair of the Immigration and Refugee Board of Canada. Arbel and Showler co-chair the Advocacy Committee of the Canadian Association of Refugee Lawyers.
With reports that Canada incarcerated 289 migrant children in detention facilities last year, Canada’s increasingly questionable policy of detaining refugee claimants, including children, is again in the spotlight.
In response to media comments that refugee children languish in detention, Minister of Public Safety Vic Toews and Minister of Citizenship, Immigration and Multiculturalism Jason Kenney explain that the practice of detaining refugee claimants and refused claimants is not new in Canada.
But their account glosses over the fact that the Harper government fundamentally changed Canada’s immigration detention policy in June 2012. The new law gives the government greater and more arbitrary authority to detain or, more accurately, to incarcerate refugee claimants, including children, for prolonged periods of time.
For many years, border officials have had the authority to detain non-citizens upon arrival in Canada, including refugee claimants. But the reasons for detention were precise and limited: a person could be detained if she or he was a danger to Canada, a flight risk, or lacked proof of identity. In addition, the Immigration and Refugee Board was required to review the reasons for the detention within 48 hours, and then again after seven days and every subsequent 30-day period to ensure the person was detained no longer than necessary.
In short, Canada did not allow the arbitrary detention of refugee claimants. During most years, no more than five per cent of claimants would be detained, most of them for a short period of time. The principal exceptions to that record are the boat arrivals on the West Coast of asylum seekers from China and Sri Lanka in 1999, 2009 and 2010.
The new law introduces significant changes to Canada’s immigration detention policies. It gives the government expansive powers to detain entire classes of refugee claimants for prolonged periods of time based on broad and vague criteria.
The new law gives the Minister of Public Safety unprecedented power to designate two or more foreign nationals who arrive in Canada together as “irregular arrivals” and to automatically detain them as a result. Importantly, the new law does not require the minister to support this designation with concrete evidence. It gives the minister the authority to designate people as “irregular” based on elusive and discretionary criteria such as administrative convenience or a mere suspicion — not actual proof — of human smuggling.
There was nothing like this under the old system. This is entirely new.
Under the new law, some designated claimants will undoubtedly be sent to provincial medium-security prisons and placed with the general prison population. Others will be sent to holding facilities with barred windows surrounded by razor-wire fences, surveillance cameras and guards. These are not “hotel style” facilities as the ministers assert. These are prisons.
The new law requires refugee claimants who are designated as “irregular” and detained to prove their identity while in prison. If they cannot do so within two weeks, they will be automatically detained for an additional six or even 12 months.
It is very difficult for refugee claimants to prove their identity in such a short period of time while in prison with limited access to legal counsel, interpreters and community support. Refugees are, by definition, persecuted people. It is often impossible or too dangerous for them to flee using proper identity documents.
The United Nations Refugee Convention, to which Canada is a signatory, allows refugee claimants to use false documents or no documents to escape persecution. It also prevents Canada from punishing refugee claimants who do not have prior identity documents. In reality, the new law does just that: It punishes refugee claimants who do not have identity documents by subjecting them to prolonged periods of incarceration.
These new mandatory detention laws apply to all persons designated as “irregular” who are over 15 years of age. Younger children will either be placed in the care of welfare agencies or will remain with their mothers in a detention facility. To put it simply, under this new law, refugee children will be separated from their parents or held in prison before authorities know anything about the persecution they have suffered.
The practice of detaining refugee claimants may not be new in Canada. But the long-term mandatory detention of refugee claimants, without any court oversight, certainly is. The ministers’ public statements gloss over the harsh realities of Canada’s treatment of asylum seekers, including children, under this new law.
Efrat Arbel holds a doctorate from Harvard Law School and is a post-doctoral fellow at the University of British Columbia Faculty of Law. Peter Showler is the director of the Refugee Forum at the University of Ottawa Faculty of Law and a former chair of the Immigration and Refugee Board of Canada. Arbel and Showler co-chair the Advocacy Committee of the Canadian Association of Refugee Lawyers.
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