Detention review hearings at the Immigration Division

When the Canada Border Services Agency detains someone under the immigration legislation, that detention does not stand unreviewed. The Immigration Division of the Immigration and Refugee Board is required to look at it, on a fixed schedule, and to keep looking at it for as long as the person remains in custody. Karb Law appears at those reviews.

Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before Immigration and Refugee Board tribunals — including the Immigration Division — is within a licensed paralegal's scope. The information on this page is general information about procedure and is not legal advice; no paralegal-client relationship is created by reading it.

What a detention review decides

A detention review is not a hearing about whether someone may stay in Canada. It is a hearing about one narrower question: whether continued detention is justified, or whether the person should be released — and if released, on what conditions.

The Immigration Division considers the grounds the legislation sets out, which in practice come down to whether the person is unlikely to appear for an examination, a hearing or removal; whether they are a danger to the public; whether their identity has been established; and whether the Minister is still investigating. Where release is ordered, the Division may attach conditions — reporting requirements, a bondsperson, a cash deposit, residence terms.

Each review is a fresh decision. A previous decision to detain is considered, and clear reasons are needed to depart from it, but a review is not an appeal of the last one.

The 48-hour, 7-day and 30-day schedule

The timetable is set by statute, not by request.

• Within 48 hours of detention, or as soon after that as possible, the first review is held.
• Within the following 7 days, if detention continues, a second review is held.
• At least once every 30 days after that, for as long as detention continues.

The consequence of that schedule is practical: preparation windows are short, and the first review often arrives before a detained person has spoken to anyone. Material that could support release — a proposed bondsperson, an address, documents establishing identity — is worth assembling immediately rather than waiting for a later date on the calendar.

What representation at a review involves

The work is concentrated in a small number of things, and most of it happens before the hearing.

• Reviewing the grounds the Minister is relying on, and the evidence offered for each.
• Identifying and preparing a proposed bondsperson, where a bond is the realistic route, including what that person will be asked about.
• Assembling identity documents where identity is the stated ground.
• Proposing a concrete set of release conditions rather than release in the abstract — the Division is being asked to choose between two specific outcomes, not one.
• Appearing at the review, questioning where appropriate, and making submissions on why the grounds are not made out or why conditions would answer them.

Detention reviews often sit alongside other proceedings — an inadmissibility issue, a removal order already in place, or a refugee claim in progress. Our legal team assists with the full range of your matter, including applications filed with IRCC.

Conditions the Division can attach to release

Release is rarely unconditional, and understanding the range of conditions is part of understanding what is realistically being asked for. The Division can require some combination of:

• Reporting to the Canada Border Services Agency at set intervals, in person or otherwise.
• A named residence, sometimes with a curfew, and notice before any change of address.
• A bondsperson, who either posts a deposit or promises to pay a set amount if the conditions are broken.
• Cooperation with the removal process, including attending appointments and applying for travel documents.
• Restrictions on contact or on activity, where the ground for detention was danger to the public.

A proposal that answers the specific ground being relied on is treated differently from a general request for release. If the ground is that the person is unlikely to appear, the proposal has to speak to appearance: a fixed address, a supervising bondsperson, a reporting schedule. If the ground is identity, the proposal has to speak to identity.

Who this is for

Most enquiries come from a family member rather than from the detained person: someone who has been told where their relative is being held and has days, not weeks, to act. Others come from people who have already sat through one or two reviews and want representation before the next 30-day date.

Both are workable starting points. What matters at a first call is where the person is being held, what the stated ground for detention is, when the next review is scheduled, and whether there is anyone able to act as a bondsperson.

What happens after a review

The Division either orders continued detention or orders release on conditions. Where detention continues, the next review follows on the statutory schedule and is a new decision — circumstances that have changed since the last one can be put before the Division.

A decision of the Immigration Division may be challengeable by judicial review at the Federal Court, which is a different process with its own timelines and is not a rehearing of the facts. Where a removal order is in play, the type of order and any right of appeal to the Immigration Appeal Division are separate questions from the detention itself.

Speaking to us

Karb Law is in Richmond Hill and appears at Immigration and Refugee Board proceedings. Because detention reviews run on a fixed statutory clock, an early call is worth more here than in almost any other kind of immigration matter. You can contact the office directly, request a free assessment, or read about our other immigration work and practice areas.