Mixing Immigration Detainees with Prison Inmates
The capacity of Canada’s three dedicated detention facilities allows for approximately 300 detainees, while the total number of immigration detainees in Canada is close to 10,000 (2014). This gap means that Canada, similarly to the practices of many countries facing migratory pressures, houses migrants in criminal facilities, including provincial jails, in order to create enough space to house its immigration detainees. This is despite the fact that immigration-related violations do not constitute criminal offenses in Canada. Therefore, while the practice of housing immigration detainees with criminal offenders may alleviate the pressures on the immigration system, Canadian lawmakers should be aware that this response is contrary to international law, which contains numerous references against mixing prison populations.
Most clearly, Guideline 8 of the UNHCR’s Detention Guidelines relating to asylum seekers states that “detention of asylum-seekers for immigration-related reasons should not be punitive in nature,” and that “the use of prisons, jails, and facilities designed or operated as prisons or jails, should be avoided.” This Guideline is rooted in strong statements in the International Covenant on Civil and Political Rights (Article 10(2)(a)), the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (Principle 8), and the Standard Minimum Rules for the Treatment of Prisoners (Rule 8), all of which refer to the fact that persons in detention should be subject to treatment appropriate to their un-convicted status and with regards to their legal reason for their detention and the necessities of their treatment.
The broad statements included in these general instruments are more specifically reflected in particular international law instruments that directly refer to migrants, such as the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families and the Principles and the Best Practices on the Protection of Persons Deprived of Liberty in America, which states that “asylum or refugee status seekers and persons deprived of liberty due to migration issues shall not be deprived of liberty in institutions designed to hold persons deprived of liberty on criminal charges.”
While Canada’s Public Safety Minister, Ralph Goodale, recently said that Ottawa needs to “dramatically improve the rules and procedures around [migrant] detention,” it remains to be seen how fast this shift will occur. Recent comments by Minister Goodale as well as by Immigration Minister John McCallum referred to reducing the amount of time that migrants are held in detention, upgrading the three immigration holding centres that currently exist, and ensuring that no migrant minors are held in detention. However, their comments fell short of fully recognizing that the practice of housing migrants with prison inmates is contrary to international law and should be eliminated.
For more information about Minister Goodale and Minister McCallum’s recent comments on this topic, read this Globe and Mail article.
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Arghavan Gerami
Arghavan Gerami is the Founder and Senior Counsel at Gerami Law Professional Corporation ('PC'), a full-service immigration law firm in Ottawa, Ontario. Since 2011, Ms. Gerami has focused her practice on immigration and refugee litigation. Prior to that, Ms. Gerami worked at the Ministry of Attorney General and the Department of Justice and had the privilege of serving the Honourable Mr. Justice M. Evans at the Federal Court of Appeal on immigration and administrative law appeals. Ms. Gerami contributes to the Immigration Law Section of the Canadian Bar Association, the Canadian Association of Refugee Lawyers, and the United Nations High Commissioner for Refugees. Ms. Gerami has also published numerous journal articles and presented at various immigration and refugee law conferences and events across Canada.