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Rights + Justice

An Immigration Detention System That Makes No Sense

Yet it persists. Law professor Efrat Arbel on Canada’s treatment of migrants and why a legal overhaul is needed.

Olamide Olaniyan 2 Jan

Olamide Olaniyan is associate editor at The Tyee.

There are many aspects of Canada’s immigration detention regime lawyer Efrat Arbel finds troubling.

The system, which she describes as “broad,” “complex,” and as having many layers, can cause avoidable harms to migrants, refugees and permanent residents — anybody who does not hold Canadian citizenship — for indefinite periods of time and can lead to terrible outcomes.

But it also does not make sense, she said. “In working in immigration detention, I am continuously just shocked at how horrific the immigration detention regime in Canada is, and how many issues need addressing within that regime.”

The Peter A. Allard School of Law professor tells The Tyee that her interest in immigration is in part due to her own family’s experience with displacement.

The lawyer, who also advocates for and litigates refugee and prisoner rights, said that she’s particularly drawn to what she calls “liminal places” — or places that are in between — like borders, prisons and the detention centres, and analyzing how the law regulates rights in them.

Last year, Arbel and her colleague Molly Joeck wrote about shifts towards “decarceration” in immigration detention with the onset of the COVID-19 pandemic.

And Arbel recently received a UBC Killam Accelerator Research Fellowship this year to analyze the inner workings of the Canadian immigration system. She said that the study will be paying attention to the lived experience of immigration detainees.

“The goal of this project is really to highlight those experiences that too often are left unknown and unexamined, because they take place in the so-called black box,” she said. “To bring these stories out of the darkness and into the light in order to demonstrate what I view to be fundamental problems with the legal regime as it is structured.”

The movement against immigration detention got a major win in July 2022 when the B.C. government announced it would be ending its arrangement with the Canada Border Services Agency that allowed immigration detainees to be kept in provincial jails. Arbel called the announcement “a moment of real hope in a regime that does not create many opportunities for hope.”

We caught up with Arbel to talk about her work in immigration law, her advocacy against immigration detention and where the movement to end it goes next. This interview has been edited for length and clarity.

The Tyee: You’ve expressed an interest in “liminal spaces” in your work. Could you expand more on what that is and why you’re particularly interested in that?

Efrat Arbel: I’m interested in spaces where the law operates, but the law operates in complicated ways. At the border, for example, we see Canadian law extend certain rights and protections to border crossers, be they refugees, or migrants or irregular migrants. And yet simultaneously, in the same breath that the law extends rights, the law also suspends rights. We have a series of sometimes coherent, but other times conflicting legal principles that operate along the border and their application changes according to the person to whom they apply. A citizen, crossing the very same border that a refugee would, would be treated differently in the eyes of the law.

What fascinates me and also troubles me is the ways in which, using the border as an example, rights can be suspended and denied with enormous ease and through various — what I identify as kind of manipulations of the law — ways in which the law works, in these complicated, tacit, unacknowledged ways to produce results that are sometimes very, very harmful and that suspend people in situations where either they have very few rights, or the rights that are granted to them by law aren’t enforceable or aren’t realizable.

The same kind of structure fascinates me in the operation of the prison and the detention centre. Now those two places operate in fundamentally different ways than the border. But in the prison as well, we see similarly these statements in the law, whether they be articulated in legislation or issued by the courts, that guarantee certain sets of rights to prisoners, and yet in practice we see those rights suspended and violated in very clear ways. The detention centre is the current focus of my work and we see that same guarantee and suspension of rights operate in these really troubling ways where people are subjected to the force of the law and the violence of the law but can rarely access the law’s protections.

I’ll set aside the prison for a moment because prisoners are for the most part, citizens, and so the assessment of rights differs there. And in order to end up in a prison facility, you have to have had some sort of contact with the criminal justice system, which, despite its many flaws, still operates in a relatively coherent way under Canadian law. Immigration detention is a whole other beast.

Immigration detention is a mechanism whereby the Canadian state can arrest and detain non-citizens for a variety of very broadly worded grounds. The way that it works is, typically, an officer of the Canada Border Services Agency, or the CBSA, will make a decision to arrest and detain a migrant, based on one of the grounds that are listed in the legislation. The legislation lists a series of grounds that are acceptable and a CBSA officer must identify one of those grounds in order to detain someone.

One of the big [grounds is] identity, so if a CBSA officer is not certain as to your identity, there’s so-called danger to the public — which is terminology that I don’t like to use, because it suggests that the individual is actually dangerous to the public, whereas in actual fact, many of those who are detained under that ground don’t pose any sort of danger. And then the third big ground is that of “flight risk,” so if a CBSA officer suspects that an individual won’t show up for an immigration proceeding.

What would a system that "makes sense" look like for you?

I should say at the outset, I do think that, like all nation states, Canada does have a clear rationale for wanting to protect its borders and to regulate its borders in a way that determines who gets in and who is left out. In order to advance those goals, however, Canada can implement measures that don’t require putting people in immigration detention. We have in this country robust alternatives to detention. We have community organizations, refugee protection agencies, migrant support centres, that are able to accommodate migrants in situations that will allow a complete avoidance of immigration detention.

For example, if CBSA is concerned about a person’s identity, typically that occurs in situations where a person is arriving in Canada without proper documentation. Now, under international law as well as domestic law, Canada is prohibited from punishing refugees who arrive without proper documentation. Why? Because international law recognizes that refugees are people who are fleeing persecution. When you’re fleeing from a state that either is persecuting you or is unable to protect you from persecution, it’s going to be very hard to obtain proper travel documentation from that very state. Some states don’t issue travel documentation, other states are in a state of collapse, and other states are actively persecuting the people who are trying to flee those regimes and so are not going to issue them a travel visa.

International law says refugees can travel without proper documentation. And when they arrive at the shores of states that are signatory to the Refugee Convention like Canada, they can say, “I’m here, I’m a refugee, I don’t have documents, or I was travelling on fraudulent documents, this is my identity. This is who I am. And here are the reasons why I am a refugee and Canada should extend me protection.” That’s how the formal law operates. Those are the guarantees that are written in international law and have been incorporated into domestic law.

But in practice, we see that oftentimes a refugee will arrive at the border and won’t be able to prove their identity because they’re not travelling with proper documentation, and then, as a result, the CBSA officer will say, “Well, we don’t know your true identity, so we’re going to detain you.” Arrest and detention in those instances can happen in an instant, and the person is automatically taken to a detention centre or to a correctional facility depending on where they are in the country, subjected to a strip search, placed in prison garb and held in a cell.

The alternative is that person could be connected to, for example, a refugee support service or housing agency or a community group that understands what it means to flee from persecution, with people who are trained in providing trauma support and with people who can provide that individual with assistance to obtain the proper documentation. [The alternative is] to connect with their country of origin or family members, and given that they are now safe, to undertake that difficult process of proving their identity. That process can take weeks, it can take months and during that time, the individual or migrant can live in a place where they are respected, where their rights aren’t trampled, where they’re not shackled and celled, but rather treated with dignity and respect in that process, in order to prove their identity.

Similarly, for the ground of flight risk that I mentioned, the concern that CBSA might have that a person might not show up to an immigration proceeding. There are ways in which that individual may live in community with the support of whichever agency or community home they live in, with conditions imposed by CBSA. And I don’t mean things like ankle-monitoring bracelets, or these really invasive rights-denying conditions that CBSA sometimes imposes, but rather reporting obligations that can be designed in ways that are manageable, that don’t cause unnecessary trauma and harm and that still achieve the objectives of the CBSA, that is keeping track of non-citizens and ensuring that they should show up for proceedings as prescribed by law.

There are ways in which the government can direct funds that are currently being used to hold people in correctional facilities and provincial jails, for example, to refugee support organizations or migrant support organizations and create a regime that meets the goals that the CBSA has set out as relevant, but not do so in ways that fundamentally injure human beings.

Is immigration detention a cop-out of actually doing the job of regulating your borders, but also upholding rights?

I wouldn’t describe it as a cop-out. A cop-out would be that you opt out of doing difficult work in order to avoid it. But the distinction with immigration detention is that this is a broad, multifaceted regime that is very, very intricate and complex. The reliance on immigration detention is deliberate.

The harms of immigration detention have been known for very long time. Advocates, lawyers, coroner’s inquests, community groups, migrants themselves, human rights organizations have been criticizing immigration detention for decades. There have been hunger strikes staged by immigration detainees, primarily in Ontario. There have been a number of high-profile deaths in detention, followed by coroner’s inquests where the coroner has made recommendations about how to reform the system.

After a series of high-profile deaths in detention and protests inside detention and concerns made by advocates and by lawyers across the country, the federal government announced a new reform initiative called the National Immigration Detention Framework to address what are known problems in immigration detention.

So the harms of immigration detention are well known and well documented. And the continued reliance on immigration detention is deliberate. This is a deliberate act on behalf of the Canadian government to continue this regime and to continue subjecting people to known harms, notwithstanding the fact that other alternatives do exist.

Where is the National Immigration Detention Framework at right now?

It was a five-year initiative that has come to a close. It was announced in 2006. The investment was $138 million over five years. To the best of my knowledge, most of the funds were used to build new immigration holding centres, with one example being the new immigration holding centre here in British Columbia.

Prior to this initiative, we had a dedicated immigration holding centre that was in the basement of the airport at YVR. It was a horrific facility that was criticized and condemned by every known body that had encountered it. It was in the sub-basement below the airport with really horrific conditions of confinement. This was several years ago, that was the only dedicated immigration holding centre, and then migrants were also held in provincial jails. Right before the pandemic started — so a few months into 2020 — the new immigration holding centre here in British Columbia was completed. So it was a several year initiative of creating this new facility. And the new facility is not as bad as the old one, but it’s still fundamentally harmful, and still subjects people to real harm.

It’s frustrating as a lawyer, because you see this five-year initiative on the part of the federal government — the stated goal is to create a more humane and rights-protecting immigration detention regime — and yet the changes that have been made have not addressed the fundamental harms of detention. The legal framework remains the same, the infrastructure remains the same, the grounds for detention remains the same, the absence of time limits remains the same, and the culture surrounding detention has not shifted. While there may be slightly better facilities in certain locations, the core problems with immigration detention persist.

I want to dwell on time limits, which you’ve written about before, for a bit here. I imagine that means you can probably detain certain migrants in provincial prisons for extended periods of time.

This is another way in which immigration detention is anomalous, as a legal regime. In Canada, and other settings, when the state deprives somebody of liberty, it does so in ways that are constrained by time. If you think of the criminal law, and even kind of a basic understanding of how the criminal law operates, you’re charged with a crime, you are subject to a trial, there’s a determination of your guilt and innocence. And if you’re found to be guilty, you’re sentenced under the Criminal Code to a certain amount of time.

Knowing the length of time in which your liberty will be deprived serves a very important function. You know why it is that you’re charged, how long you will be held for and what it is that you need to do to get released.

None of that exists in immigration detention. There is no due process, there’s no presumption of innocence, there’s no need to prove guilt. There’s no trial. There’s no adequate distribution of evidentiary burdens. All the things that other regimes do in order to ensure that people aren’t just wantonly deprived of liberty, none of that happens in immigration detention. And then once you’re in, there’s no time limits.

It’s not that there’s recommendations, it’s not that there’s general timelines — there are no time limits. Detention can continue indefinitely.

That indeterminacy, the not knowing, does real violence to the mind. What makes the immigration detention process even more complicated is that even though there’s no time limits, there’s a mandatory review protocol. So, a person has to have their detention reviewed initially, after 48 hours, and after seven days, and then every 30 days after that fact. Now, there’s a lot of flaws with how that review process is done, but what it means is that every 30 days, an individual is brought up again before CBSA and asked to argue their case. The statistics show that if you’re held for longer than six months, the likelihood of getting out of detention just exponentially decreases.

And so not only do you not know when it is that you’ll be released, but every 30 days, you go through this process that has been criticized — as flawed, as perfunctory, as shallow, as inefficient — and find yourself detained again and again. The combination of those two things, the cycle of these perfunctory reviews every 30 days, as well as the absence of time limits, does profound violence to the human mind. And yet, the regime persists.

Isn’t there supposed to be international law or domestic law that exists to prevent this kind of thing?

There are no meaningful oversight mechanisms for immigration detention. The CBSA functions as a law enforcement agency and yet is not subject to any independent external oversight.

All other law enforcement mechanisms are subject to independent external oversight. CBSA is not. That means that so much of the rights violations that take place in immigration detention end up taking place out of sight and out of mind, and it’s very difficult for the Canadian public to gain an understanding of what takes place in these facilities.

A headshot of Professor Efrat Arbel.
‘Immigration detention, as far as I can tell, does not serve any of its stated purposes, and rather, operates in a way that causes reckless, wanton harm,’ says UBC professor Efrat Arbel. Photo supplied.

There have been some interesting developments on the file recently. Various provinces, including B.C., have announced they are ending arrangements with the CBSA to detain migrants in provincial jails. What does this mean to you?

The CBSA has these existing arrangements with the provinces, whereby CBSA will hand over a migrant or non-citizen to provincial jail facilities, and the provincial jail will then detain them on CBSA’s behalf. What that means is the person who’s detained in a provincial jail is subject to all jail protocols. The prison garb, double bunking, lockdown, sometimes solitary confinement, and are treated in the exact same way as the criminal detainees are treated, despite the fact that they have not had any procedural protections, or any of the due process rights that typically accompany a deprivation of liberty.

The #WelcomeToCanada campaign that was started by Amnesty International and Human Rights Watch is a multi-year campaign that is asking for the gradual abolition of immigration detention in Canada. The campaign’s goals are broad but the starting point for the campaign is to really identify immigration detention’s most harmful practices and to address those practices. And the current focus is on these arrangements that allow immigration detainees to be held in correctional facilities, to be held in provincial jails.

Amnesty International and Human Rights Watch started here in British Columbia, and we saw an enormous amount of energy and dedication and devotion on behalf of a wide range of actors — medical professionals, legal professionals, academics, human rights groups, community organizations, as well as several individuals who have lived experience in immigration detention and spoke of their own experiences being held in jails — speaking out against this practice. The Province of British Columbia agreed to undertake a review of the arrangement and determined that this arrangement that allows migrants to be held in provincial jails does not protect human rights. The BC Office of the Human Rights Commissioner also spoke out and made submissions against the practice.

When British Columbia announced an end to the practice of detaining migrants in provincial jails, that was a landmark moment. It was a moment of real hope in a regime that does not create many opportunities for hope. It was extraordinary to witness so many people coming together with really prioritizing the lived experiences of migrants in immigration detention, to call on the government to do better. And to see that the provincial government didn’t back down and didn’t opt out, but rather undertook a review of the arrangement and decided that, indeed, this arrangement violates human rights.

In the arrangements with CBSA, there’s a requirement that the province has to give one year’s notice, and that’s what British Columbia did. It made the announcement in the summer, gave one-year notice for these arrangements to end. And since then, we’ve seen the snowball effect with other provinces similarly deciding that these are arrangements can’t be upheld and announcing an end to them.

The Canada Border Services Agency has not yet announced how it will implement these changes. What we know is that the practice of holding migrants in correctional facilities in these provinces can’t continue.

You’ve written before about systemic racism in the immigration system, particularly in detention. Could you expand on that?

It is well established that immigration detention operates in ways that treat racialized people in harsher ways. Racialized people tend to be detained for longer periods of time and under harsher conditions of confinement.

One of the really challenging things about immigration detention is there’s a lack of transparency as to what actually takes place. The CBSA doesn’t keep any statistics that are disaggregated on the basis of race and so there’s very little reliable data out there showing exactly what takes place in immigration detention. But, anecdotally, based on my own work in this field, and based on the work of countless others, we know that racialized people are treated in ways that result in longer time spent in detention and detention under harsher conditions.

The CBSA will only release statistics based on country of origin, which is, of course, an ineffective and wholly inadequate proxy for race. So, there’s very little in the way of statistics that I can point you to, but I can point you to decades of lived experience on behalf of the folks who are working in this field that points to a clear structural problem.

Why is it important to care about the rights of migrants, particularly in Canada?

I think all of us have to realize that ours is a shared humanity. We share this humanity. There is not any justification for treating people poorly on the basis of their immigration status. Immigration status is caused by the accident of birth. We have no control over which state we’re born into, the rules that state imposes upon us or the experiences that we encounter living in whichever state we’re born into.

There is a basic point of human decency, of looking at one another and recognizing one another’s inherent value as human beings and being able to look each other in the eye and say, “I am no better than you, you are no better than me. And we all deserve basic dignity, basic autonomy and the ability to move across borders without experiencing fundamental harm.”

But on a legal level, Canada is signatory to international rights documents. Canada has a domestic regime that binds it to protect the human rights of all individuals, not just citizens. The Supreme Court of Canada has stated very clearly that every individual who is physically present on Canadian soil is entitled to basic protection under the Canadian Constitution.

Whichever way you look at it, there is no principled reason to treat non-citizens in the way that we do and to subject them to known harms when we have alternatives available.

Why do you think it’s so hard to end immigration detention?

I think that there is a lack of political will and a general willingness to accept that the rights of non-citizens just aren’t as important. And that to me is deeply troubling, that we as a nation will willingly violate people’s basic rights, without any clear justification, just because of their citizenship status.

I can say that this is part and parcel of the broader technology of border control and immigration control, and part of a broader global movement that we’re seeing. An increasing criminalization of human mobility, so a real shift in global patterns of how migrants are treated when they’re on the move.

But as far as the Canadian public, I am — perhaps naively but I think more more accurately, optimistically — of the view that the kinds of horrors that we see taking place in immigration detention would not be tolerated by the Canadian public if more of the public was aware of what actually takes place.

I think one of the most aggressive aspects of immigration detention is that so much of it takes place behind doors. So much of it takes place, as I said, out of sight, out of mind. And I do genuinely believe that the more the Canadian public learns about what actually takes place in immigration detention, the more we will see opposition to the practice and calls for reform.

Happy holidays, readers. Our comment threads will be closed from Friday, Dec. 23 until Tuesday, Jan. 3 to give our moderators a well-deserved break. See you in 2023!  [Tyee]

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