An immigration detention review is a hearing at which a member of the Immigration Division decides whether a person held under the Immigration and Refugee Protection Act stays in detention or is released. It runs on a fixed clock — within 48 hours, again within the following seven days, then at least once every 30 days — for as long as the detention lasts. Nobody has to ask for it.
Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before Immigration and Refugee Board tribunals, including the Immigration Division, falls within a licensed paralegal's scope. What follows is general information about procedure in Canada and is not legal advice; reading it does not create a paralegal-client relationship, and every detention review turns on its own record.
What is a detention review hearing?
It is a hearing before the Immigration Division of the Immigration and Refugee Board that decides one question only: continued detention, or release. It is not a trial, and it does not decide whether a person may stay in Canada. Immigration detention is administrative rather than punitive.
The same tribunal also holds admissibility hearings, which decide whether a person is inadmissible and whether a removal order is issued. The two are separate proceedings with separate tests, each on its own schedule. A person can be released and still face an admissibility hearing, and can remain detained after a removal order is made, because a removal order settles status and not custody.
Reviews are commonly held by videoconference, with the member in a hearing room and the detained person at an immigration holding centre or a correctional facility.
Why is a person detained under immigration law?
Detention begins with an officer, not with a tribunal. Section 55 allows an officer to issue a warrant for the arrest and detention of a permanent resident or foreign national the officer has reasonable grounds to believe is inadmissible and is either a danger to the public or unlikely to appear for examination, an admissibility hearing or removal.
An officer may arrest a foreign national, other than a protected person, without a warrant on those same grounds, or where the officer is not satisfied of the person's identity. On entry to Canada, a person may be detained where an officer considers it necessary to complete the examination, or suspects inadmissibility on grounds such as security, serious criminality or organized criminality.
Two things follow immediately. Under section 55(4), the officer must without delay notify the Immigration Division that a person has been taken into detention — that notice is what starts the review clock. And under section 56, an officer may order release before the first review if the officer forms the opinion that the reasons for the detention no longer exist, with conditions if the officer considers them necessary.
When are the 48-hour, 7-day and 30-day reviews held?
Section 57 sets three intervals, and they are obligations on the tribunal rather than applications made by anyone. The first review comes within 48 hours of a person being taken into detention, or without delay afterward. The second falls within the seven days following the first. After that, a review must be held at least once in each 30-day period following the previous one.
| Review | Time limit | Measured from |
|---|---|---|
| First review | Within 48 hours, or without delay afterward | The moment the person is taken into detention |
| Second review | During the seven days that follow | The first review |
| Every review after that | At least once in each 30-day period | The previous review |
| Designated foreign national, 16 or older | Within 14 days, then on the expiry of each six months | Detention, then the previous review |
The intervals are maximums, not appointments that must be waited out — the Division can sit earlier where circumstances change. Section 57(3) requires an officer to bring the person before the Division, or to a place it specifies, for each review. The schedule continues regardless of what else is happening: a pending refugee claim, an admissibility hearing or a removal arrangement does not pause it.
What has to be established for detention to continue?
The default in the legislation is release. Section 58(1) directs that the Immigration Division shall order release unless it is satisfied, taking prescribed factors into account, that one of five grounds exists. The Minister is represented at the hearing by a hearings officer of the Canada Border Services Agency, who puts forward the case for continued detention.
| Ground in section 58(1) | What it turns on |
|---|---|
| Danger to the public | Assessed against the factors in section 246 of the Regulations |
| Unlikely to appear | For examination, an admissibility hearing, removal, or a proceeding that could lead to a removal order |
| The Minister is taking necessary steps to inquire into a reasonable suspicion of inadmissibility | On grounds of security, human or international rights violations, sanctions, serious criminality, criminality, transborder criminality or organized criminality |
| Identity of a foreign national not established | Where the person has not reasonably cooperated in establishing it, or the Minister is making reasonable efforts to establish it |
| Identity of a designated foreign national aged 16 or older not established | A separate paragraph applying only to designated foreign nationals |
Which factors does the Immigration Division weigh?
The prescribed factors sit in the Regulations, grouped by the ground being argued. Sections 245, 246 and 247 supply the content of the three main grounds; section 248 applies to every detention decision once a ground is made out.
| Regulation | Deals with | Examples of what is listed |
|---|---|---|
| Section 245 | Flight risk | Compliance with past conditions and appearances, previous avoidance of examination or escape from custody, strong ties to a community in Canada |
| Section 246 | Danger to the public | A Ministerial danger opinion, association with a criminal organization, convictions for sexual offences or offences involving violence or weapons, listed drug offences |
| Section 247 | Identity not established | Cooperation in providing evidence of identity, destruction or fraudulent use of documents, contradictory information about identity |
| Section 248 | Every case where a ground exists | Reason for detention, time already spent in detention, how much longer it is likely to last, unexplained delay or lack of diligence, alternatives to detention, best interests of a directly affected child under 18 |
Section 248 is the reason a review changes shape over time. The same grounds argued at 48 hours are argued against a far longer record at the sixth month, and length of detention, likely future length and unexplained delay weigh against continued detention as they grow. Delay caused by the person concerned is weighed in the same list.
What happens in the hearing room?
Present are the Immigration Division member, the detained person, the Minister's counsel, and the person's counsel — a lawyer or a licensed paralegal — where they are represented. An interpreter is arranged by the Board where one is needed. Someone proposed as a bondsperson may attend to give evidence and be questioned on their ability to supervise.
The Minister's counsel goes first with the reasons for continued detention and the evidence supporting them, often challenging a proposed release plan rather than revisiting the grounds from nothing. Counsel for the detained person responds, calls any witnesses and makes submissions. Members usually give reasons orally at the end of the hearing.
What conditions can come with release?
Section 58(3) allows the Division, on ordering release, to impose any conditions it considers necessary. In practice conditions are the substance of most contested reviews, because a member weighing release is weighing a specific plan rather than an abstraction.
- A sum of money deposited with the Crown, or a written promise by another person to pay a stated amount if a condition is broken.
- Reporting to the Canada Border Services Agency at set intervals, in person or by another method.
- Living at a stated address, and giving notice before changing it.
- A curfew, or supervision by a named person who accepts responsibility for it.
- Participation in a community supervision or case-management program.
Alternatives to detention are a listed factor in their own right under section 248(e). The Canada Border Services Agency operates supervision programs — community case management, reporting by voice, and electronic supervision — that a member can weigh as the alternative on the table. No amount and no combination of conditions is fixed by the legislation.
Does each review start over?
Each detention review is a fresh hearing, decided on the evidence and submissions before the member on that day. The Federal Court of Appeal held in Thanabalasingham that a member is not bound by earlier decisions but must give clear and compelling reasons for departing from them.
The practical consequence is real: repeating submissions rejected last month rarely moves a review, because the member may adopt the earlier reasoning. What changes an outcome is new material — a release plan that did not exist before, a bondsperson who has come forward, an identity document finally obtained, or the accumulation of time and its effect under section 248.
Detained minors and designated foreign nationals
Section 60 of the Act affirms the principle that a minor child is to be detained only as a measure of last resort. Section 249 of the Regulations lists the special considerations: alternative arrangements with child-care or child-protection services, the anticipated length of detention, the risk of continued control by smugglers or traffickers, the type of facility and its conditions, whether minors can be kept apart from unrelated adult detainees, and the availability of education, counselling and recreation.
Designated foreign nationals aged 16 or older on arrival are on the separate timetable in section 57.1 — a first review within 14 days, then reviews on the expiry of each six-month period. Section 58(1.1) also narrows what the Division may consider at the conclusion of that first review.
What follows a detention review decision?
If detention is continued, the next review is already fixed by statute, within the applicable seven-day or 30-day period. Beyond that schedule, a decision of the Immigration Division may be challenged by an application for leave and judicial review in the Federal Court, filed within 15 days for a matter arising in Canada — leave being a threshold step decided before the merits.
The Supreme Court of Canada held in Chhina that an immigration detainee may also apply for habeas corpus in a provincial superior court where the detention has become lengthy and uncertain in duration, because the review scheme under the Act is in that situation less advantageous than the remedy the superior court can give.
Karb Law appears before the Immigration Division on detention review hearings, and on the enforcement matters that usually sit alongside them, including removal orders and the different types of removal order the Act provides for. Anyone with a review date scheduled can contact the office to discuss representation.
