Policy requiring the consideration of alternatives to detention

Citizenship and Immigration Canada, Enforcement Manual 20 (ENF 20) states that officers must be aware that alternatives to detention exist.

As an alternative to detention, an officer may impose conditions, require a deposit of money or direct that a person participate in a third party risk management program ( para 5.11).

Officers must also consider alternatives to detention and ensure detention is avoided or considered as a last resort for: the elderly, pregnant, sick, handicapped, mentally ill, and with behavioural problems, where safety or security is not an issue – (5.13).

Also, in making a decision to detain or release, officers must consider the existence of alternatives to detention (see 5.9), detention is feasible where alternatives to detention are not avaialble to mitigate any risk to public safety or flight risk (5.9).

Regular review

The Toronto Bail Program in Canada provides an example of the importance of regular review of conditions.

The program has been operating since 1996 as a specialist agency funded by the government.

The organisation identifies eligible detainees through a screening and assessment process and then supports their application for release on bail. Clients include migrants who are facing departure after completing a prison sentence, refused refugee claimants, and asylum seekers detained due to issues of credibility or flight risk.

The program relies on strong case management, support, information and advice, reporting and super-vision. Those who enter the program are initially placed in intensive supervision, with regular reporting. These conditions are reviewed and reduced after a period of compliance, building trust between case managers and participants.

Case managers also identify and address issues such as substance abuse, drug addiction or mental health needs, as these personal issues often impact compliance. The program costs CA$10-12 per person per day compared with CA$179 for detention. In the 2009-2010 financial year, it maintained a 96.35% retention rate; in the 2013-2014 year, it was 94.31%.

Administrative review procedures

Canada Border Services, the federal agency responsible for border and immigration enforcement and customs services, has the discretionary power to order the release, with or without conditions, of individuals in administrative detention, including asylum-seekers, before the first detention review is scheduled, normally within 48 hours or without delay thereafter.

If the person is not released within that period (48 hours), then a Member of the Immigration Division (ID) of the Immigration and Refugee Board (IRB), the independent review body, will hold a detention review hearing within 48 hours or without delay thereafter.

Subsequent detention review hearings will follow after 7 days and then every 30 days until the ID is satisfied that there are no further grounds for detention. The ID reviews the grounds for detention to ensure that the person is not detained without sufficient reasons, and that the situation which led to the detention continues to exist.

Temporary shelter for homeless individuals

FCJ Refugee Centre provides housing for women and children without a program of supervision. FCJ has a 99.9% compliance rate. When detainees are homeless but required to provide an address upon release, they may be placed in a temporary shelter program, Matthew House which does not supervise residents or impose curfews. Over five years 300 immigrants in proceedings were housed there and three absconded. A similar homeless shelter, the Sojourn House, took in 3600 over six years with two absconding.

Negative consequences for non-compliance: deposit

The Citizenship and Immigration Canada, Enforcement Manual 20 (ENF 20) states that as an alternative to detention, an officer may impose conditions, require a deposit of money or direct that a person participate in a third party risk management program (Section 5.11).

Negative consequences for non-compliance: bail

Under contract with the Canadian Border Services Agency, the Toronto Bail Program (TBP), a non-profit entity, operates to support immigration detainees, including asylum-seekers and persons awaiting removal, to be released from detention via bail.

The TBP acts as the “bondsperson” for those who have no family or other eligible guarantors to pay bond and in this way, removes the financial discrimination inherent in other bail systems.

Under the TBP, no payment is made, rather asylum-seekers are released on the basis of the TBP’s guarantee. The TBP carries out interviews to assess suitability of candidates for their supervision. Asylum-seekers agree voluntarily to cooperate with TBP and all immigration procedures, including any reporting conditions set by the TBP. As per the contract signed between the asylum-seeker and the TBP, they agree to appear for all appointments, to notify the TBP of a change of address and to participate in meaningful activities while in Canada (e.g. education, vocational training, work).

Reporting requirements generally reduce as trust is established between TBP and the asylum-seeker. Unannounced visits to the asylum-seeker’s residence may be organized by the TBP. Failure to comply with reporting obligations may result in the TPB informing the provincial authorities, in which case the person would be placed under a Canada-wide arrest warrant. TBP makes it explicit that failure to report may result in return to detention.

Find out more:

Alice Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Asylum-Seekers, Stateless Persons, and Other Migrants, (Geneva: UNHCR, 2011).

There are alternatives cover

Over the past five years, the IDC has undertaken a program of research to identify and describe a number of positive alternatives to immigration detention (‘alternatives’) that respect fundamental rights, are less expensive and are equally or more effective than traditional border controls.

This research, entitled There are alternatives, provides readers with the guidance needed to successfully avoid unnecessary detention and to ensure community options are as effective as possible.

This text was published in September 2015