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Detention and Deportation

In Securing Borders: Detention and Deportation in Canada, Anna Pratt writes “[d]etention and deportation are the two most extreme and bodily sanctions of this immigration penality, which constitutes and enforces borders, polices non-citizens, identifies those deemed dangerous, diseased, deceitful, or destitute, and refuses them entry or casts them out. As such, detention and deportation and the borders they sustain are also key technologies in the continuous processes that make-up citizens and govern populations.”

Given that the detention and deportation of non-citizens is so readily accepted and unquestioned in society as the legitimate exercise of state sovereignty, we aim to make visible the material conditions and tangible practices of the detention and deportation of ‘undeserving’ and ‘undesirable’ non-citizens, who are essentially being criminalized for the mere act of migration. Rather, we aim for a world where freedom of movement and human mobility is guaranteed and the social control of migrants through the detention and deportation regime is abolished.

DETENTION (excerpt from NOII submissions to the UN Working Group on Arbitrary Detention)

Seeking asylum is a right, not a crime. But an increasing number of people, having been forced to flee their homes to escape persecution, are being placed behind bars on arrival in Canada. They are held in conditions of imprisonment that are fundamentally inhuman and degrading. Asylum-seekers in the Canada are liable to be stripped, shackled and sometimes verbally or physically abused. Many are confined in high-security jails and unlike Canadian citizens charged with the offences, are often excluded from bail and have no idea when they will be released. For example, approximately one quarter of the prison population at the Metro Toronto West Detention Centre, a maximum-security prison, are immigrants and refugees placed under a “deportation hold”, held without a criminal charge.

Refugees and immigrants are being arbitrarily detained in violation of the Canadian Charter of Rights of Freedoms section 7; “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” On December 18, 1995, Nigerian Mike Akhinen died from medical neglect at Celebrity Inn, an Immigration Holding Centre outside of Toronto. His death highlights the situation of many refugees held in detention centres across Canada.

We advocate and fight for an end to all processes of immigration detention in Canada. Canada is a state party to the United Nations Convention Relating to the Status of Refugees and its Protocol, as well as to the International Covenant on Civil and Political Rights and its First Optional Protocol. The Canadian Immigration and Refugee Protection Act itself, in s. 3(3)(f), requires that the law be “construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory.”

==> Detention Statistics

In 2001, 44,452 asylum seekers applied for asylum in Canada. In the first quarter of 2002, 6,784 applications were filed. Statistics from Citizenship and Immigration Canada (CIC) indicate that at any given time there is an average of 455 detainees across Canada under the Immigration Act. he detention center in Laval is officially designated the “Immigration Prevention Center”.However since the turnover rate of detention is so high, this estimate does not provide the full picture. Around 10,000 asylum seekers have, at some point in the process, been detained by Canadian immigration for a time period range from 48 hours to over 18 months. There are approximately 20 minors detained in Canada at any given time.

==> Grounds for Detention in the Immigration and Refugee Protection Act

The new Immigration and Refuge Protection Act (June 2002) codifies factors to be considered in decision-making. Members of the Immigration and Refugee Board (IRB) Immigration Division, who are responsible for reviewing decisions on detention, continue to have wide discretion on issues of detention because decisions are made on a case-by-case basis. The new legislation broadens the circumstances upon which detention can occur, and the announced benefits of the new regime are to “provide enhanced protection of Canadian society,” with no mention of the protection of rights of refugee claimants.

As stated in IRPA § 55(2), the three main grounds for detention are flight risk, danger to the public or if the officer is unsatisfied as to the identity of the claimant. In the past, persons could only be detained on the basis of identity at the port of entry. Now, persons can be detained at any point in the claim process for identity reasons. This includes those who present themselves to make an inland claim.

According to Citizenship and Immigration Canada records of 2002, only 5 people had actual allegations of ‘being a threat to national security’ laid on them, making the majority of detentions to be “detention based on convenience”, essentially administrative detention.Unlike prisons, immigrant detention does not pretend to serve any purpose other than forcible confinement and control to ensure deportation.

The expansion of detention on the basis of identity is of particular concern because those seeking asylum are often forced to leave their countries without proper identification because it is their very identity which puts them at risk. In addition, there has already been an increase in the use of detention for identification grounds. Under § 55(3) a claimant may be detained upon entry into Canada where the officer “considers it necessary… in order for the examination to be completed”, creating a situation in which detention occurs only for reasons of administrative efficiency, and is therefore an arbitrary deprivation of liberty.

The ground of being considered a “flight risk” is also inherently problematic. When asylum seekers are rejected and express any opinion that they should not have been rejected due to danger they face in their home country, they are almost certainly detained by Canadian immigration officials. This creates a catch-22 for asylum seekers who are essentially coerced into signing documents “consenting” to leaving Canada in order to avoid detention.

==> Time limit on detention

There are no formal limits to detention periods, although the IRB guidelines state that decisions to detain and extensions to detention periods must be “reasonable in accordance with principles of fundamental justice.”13 In Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214, the Federal Court, which has jurisdiction over immigration issues, upheld the principle that indefinite detention for a lengthy period of time can constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice. This is upheld in The Minister of Citizenship and Immigration (Applicant) vs. Cheong Sing Lai and Ming Na Tsang (Respondents), [2001] 3 F.C. 326.

==> Access to legal aid for detainees

There is no right to free legal representation for detained asylum seekers under Canadian law. Each asylum seeker is apprised of the right to legal counsel and afforded an opportunity to obtain legal counsel. However, access to legal aid is limited, and the provision of free legal services is uneven since legal aid is administered provincially not federally.

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DEPORTATION

The assumption is that those whom Canada is deporting are ‘undesirables’ who ‘failed’ the designated legal processes to become a refugee or an immigrant. However the reality is that an increasing number of asylum seekers are being deported because of structural flaws in the refugee determination system.

For example, Immigration and Refugee Board members are political appointees who are not mandated to have any experience in the law; there is no Refugee Appeal Division despite its guarantee provided in the June 2002 Immigration and Refugee Protection Act; certain avenues such as the Pre Removal Risk Assessment have acceptance rates of 3-5% while others such as the Humanitarian and Compassionate claim do not have to be processed prior to deportation; and the refugee system has been termed a ‘lottery system’ because acceptance rates can vary from 0-80% depending on the judge. [Click here to read more on the Refugee System]

Finally, we challenge the idea that some refugees are more worthy than others, we believe everyone has the fundamental human right to mobility.

On December 29, 2004, Canada’s Safe Third Country Agreement took effect. This radical change to Canadian refugee policy will exclude an estimated 40% of asylum seekers from even making a refugee claim in Canada, effectively creating a “Fortress North America”. According to the Immigration and Refugee Board’s own statistics, the number of pending claims at the end of 2003 was 41,575, compared to 27,290 at the end of 2004. Canada deports between 10,0000 to 13,000 people per year. Refugee rights’ advocates have denounced the new shift as a “none is too many” policy against refugees.

==> Resistance to Deportations

Every year, approximately 10,000 people are removed from Canada towards countries where their physical well-being is threatened. If you find yourself on a flight with one such person, you can help stop a deportation.

A video by the Apartrides Anonymes in Montreal (English and French) can be found here.

THE DEPORTATION INDUSTRY TEXT FROM FLYER PREPARED IN 2003
ARE YOU SUPPORTING THE DEPORTATION BUSINESS?

Today we are trying to inform as many people as possible who are involved with air travel — tourists and passengers, employees, and others — about the sordid and tragic reality of the deportation industry.

According to the United Nations, at least 150 million people move across national borders every year. This worldwide reality of migration is due to a variety of interrelated factors war, militarization, unemployment, poverty, famine and violence. The right to asylum from persecution is an international human right, recognized in the aftermath of the Second World War and the Holocaust. Instead of humane and just responses to this reality, various states, including Canada, have implemented policies that aim to scapegoat and marginalize migrants and refugees, and that render other human beings vulnerable, exploitable and illegal.

In Canada, statistics show a decrease in the percentage of refugee claimants accepted every year, a result of state policies of criminalization of immigrant communities and mass deportations. In the current political climate, Canada is attempting to harmonize border policies with the US; yet the US has one of the worst refugee-determinant systems in the world, falling short of international law standards (according to UN reports), making gender-based persecution such as domestic violence, forced prostitution, honour crimes inadmissible.

The airline industry has been complicit in this process, making profits through their involvement in the deportation business. Every day, many major airline companies — including Air Canada, KLM, Air France, British Airways, Lufthansa, Swissair, Royal Air Moroc and others — are involved in making money by deporting human beings, many of whom are refugees fleeing violent situations. The deportation industry is highly privatized and very expensive. The high cost of deporting refugees has made governments look for cheap’ solutions by relying on deportation deals with aviation companies.

Often, deported individuals and families are handcuffed, and at times they are drugged. Many individuals have died due to their treatment during deportations from Europe. On 16 January 2003, Mariame Getu Hagos, a 25-year-old Somalian national, died after being taken ill on board an aircraft from Roissy-Charles de Gaulle airport. Before take-off he reportedly made efforts to resist departure and, according to the Interior Ministry, was restrained by the “customary techniques”. It is not, however, what these techniques involved. Shortly afterwards he collapsed and was taken to a hospital, where he died two days later.

Past campaigning experience has shown that aviation companies can be forced to back down on the issue of deportation. In the past there are some examples from Belgium, Sabena, France Air Afrique and Switzerland Swiss Air, but all these companies have started anew with deportations.

There is a worldwide movement of resistance to deportations, and unjust immigration and refugee policies; these movements are led by immigrants and refugees themselves. We ask for your solidarity with the courageous actions of migrants worldwide, who are struggling for better lives.

Actions you can take to help stop deportations:

* If you are an employee at an airline that engages in deportations, pressure your company through your union to stop the practice of deportations. Various union efforts in Europe have been successful.

* Ask your airline if your flight involves a deportation; tell them you object.

* If you witness a deportation, or know of airlines that are routinely engaging in deportations, please let us know.

* Usually, deported individuals or families are kept at the back of commercial flights. If you suspect a deportation is happening on your flight, you can stand up before take off, and ask that the deportation not occur. This procedure has successfully stopped deportations in the past, since pilots will not take off if a passenger is standing, and many passengers and airline employees do not wish to be complicit in the unjust practices of governments. (Airline companies are directly responsible for the ill treatment of deportees by their own security personnel. This is the outcome of the 1963 Tokyo Agreement which regulates responsibilities on board of aircraft: as soon as the planes doors shut, the captains of the aircraft are responsible for forceful measures taken on board. The consequences are manifold. In case of the injury or even killing of a passenger at the hands of accompanying police officers, the legal responsibility under civil law depends on the pilot and the employer of the pilot. This is because the legal norms that guide the responsibility of the State for damage caused during sovereign actions do not apply anymore as there is no national jurisdiction. )