CITI Committee Report
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- INTRODUCTION
- HIGHLIGHTS OF CHAPTER 8 OF NOT JUST NUMBERS: COMPLIANCE: BUILDING CONFIDENCE IN THE SYSTEM
- THE CITIZENSHIP AND IMMIGRATION COMMITTEE'S APPROACH
- DETENTION
IMMIGRATION DETENTION AND REMOVAL
On 25 November 1996, the Hon. Lucienne Robillard, Minister of Citizenship and Immigration, appointed the Legislative Review Advisory Group to conduct a comprehensive review of Canada's immigration legislation and policies. Three individuals were entrusted with this complex task. Mr. Robert Trempe, the Chair, was for many years an official with the Quebec government, most recently as Assistant Deputy Minister with the former Ministère des Affaires internationales et des Communautés culturelles. Ms. Susan Davis, a lawyer, had served as a member of the Refugee Status Advisory Committee, the body that advised the Minister on refugee claims prior to the institution of the Immigration and Refugee Board, and had also, among other things, been a Protection Officer with the United Nations High Commissioner for Refugees. Dr. Roslyn Kunin, was Executive Director with the Laurier Institution and President of her own economic consulting firm. From 1973 to 1993 she had worked as an economist with the former Employment and Immigration Canada.
In early January 1998, the Advisory Group released its report, entitled Not Just Numbers: A Canadian Framework for Future Immigration. Although it did make a number of recommendations in the enforcement area, the Report noted that enforcement under the Act was very much a public concern, and also a complicated area. The authors concluded that there needed to be a wider public debate on these issues, and recommended that they be referred to the House of Commons Standing Committee on Citizenship and Immigration. They wrote: "We envisage the calling of witnesses from both inside and outside the government, the collection of data, and the issuance of a special report."
This emerged as recommendation 155:
Given the high level of public concern and the need to restore public confidence in detention and removal from Canada, these issues should be referred to the House of Commons Standing Committee on Citizenship and Immigration for consideration.
By letter dated 23 January 1998 to the Chair of the Standing Committee, Mr. Stan Dromisky, the Minister of Citizenship and Immigration invited the Committee to undertake the task in recommendation 155, and the Committee agreed.
HIGHLIGHTS OF CHAPTER 8 OF NOT JUST NUMBERS: COMPLIANCE: BUILDING CONFIDENCE IN THE SYSTEM
A. Assessment of the Problems by Not Just Numbers
Not Just Numbers was frank, and pessimistic, in its assessment of both the difficulties in the current immigration enforcement system and the ability of Citizenship and Immigration Canada to deal with them:
Some people coming into Canada have found that it may be in their interests not to comply because the system as presently designed will allow them to meet their own ultimate goals. Citizenship and Immigration Canada cannot control the large number of people coming into the country who are inadmissible or who become subject to removal during their stay here. The department lacks the resources, the means and perhaps the will to deal effectively with them. The entire enforcement system has become overwhelmed. Without an incentive to comply with removal orders or reporting conditions, people will continue to stay on and become lost in the system.1
The general approach of Not Just Numbers to the above problems was to concentrate on creating the legislative tools and procedures to enable the detention and removal of those who challenge the system. The Report identified two major problems with the current system: the lack of an "enforcement continuum" and the lack of incentives to comply with the requirements of the Act. These problems were illustrated by:
- an inability to track clients effectively;
- delays at the removal stage;
- a process-based organizational structure; and
- the perception of arbitrary detention decisions.2
Taking each of those points in turn, Not Just Numbers noted that the inability to track clients meant that no verification could be made as to whether a client was obeying any terms and conditions that had been imposed on entry, stay or release. Consequently, the authors concluded that individuals had no incentive to comply with the conditions. At the removal stage, delays often resulted from a lack of travel documents, which could result from a refusal on the part of clients to cooperate - for which they suffered few repercussions - or non-cooperation from a foreign government.
A process-based organizational structure at Citizenship and Immigration Canada meant that the various activities necessary for removal were treated separately, resulting in a lack of coordination and control. For example, the authors remarked that work that could be done at the beginning of the process, such as signing an application for a passport, was left until later. Finally, Not Just Numbers was concerned about the perception that immigration detention was arbitrary. The Report remarked on the lack of guidelines for officers and the fact that the standards appeared to vary greatly from office to office. This perception of arbitrary detention was of great concern to the Committee's witnesses, and we share their concerns.
B. Key Solutions Proposed in Not Just Numbers
Not Just Numbers proposed the introduction of a new status - called provisional status - to cover situations in which people have no other status. Obtaining and retaining this status would be conditional on the completion of, or compliance with, whatever immigration application, process or requirement was necessary under the Immigration Act or the Regulations. It would be available to people in specified situations who were not a public danger, who were likely to appear for immigration proceedings when required, who were cooperating with the authorities, and who were complying with specified mandatory and any discretionary conditions of the status.3 The authors envisaged an automated tracking system as essential to this proposal, perhaps accomplished through a biometrics identifier embedded in a client card.
People who did not comply with the conditions of their provisional status would be detained and, barring impediments, removed from Canada. Thus, it is fair to predict that under the proposed approach, in order to encourage compliance with the rules, detention could result in a number of situations in which it does not now. Not Just Numbers insisted that detention locations would have to provide facilities that would foster compliance, such as access to telephones, counsel, and so on.
Another key change in immigration enforcement proposed by the Report would be to consolidate the functions of senior immigration officers, who now make decisions on straightforward violations of the Act, including detention decisions, and adjudicators, who make decisions on more complicated matters, including reviewing the situation of those in detention. Status determination officers acting administratively would replace the adjudicators. The Report reasoned that, for the most part, adjudicators merely confirm the conclusions of the senior immigration officers who have written the reports, and that the system would be quick and efficient because multiple file transfers would be eliminated. Review would be available for important cases.
THE CITIZENSHIP AND IMMIGRATION COMMITTEE'S APPROACH
The Committee realizes that although Not Just Numbers made a significant number of other proposals relating to immigration enforcement, provisional status, detention in default of that status, and the role of adjudicators are central to its vision. Thus, we will focus on those recommendations first, and in some detail. Nevertheless, we will also deal with a number of the Report's other recommendations as well. Significantly, many of the witnesses who appeared before the Committee raised concerns that they felt were pressing, although not all of those issues had necessarily been raised in Not Just Numbers. The Committee will respond to those concerns as well.
As a preliminary matter, however, the Committee wishes to make some comments on the state of Citizenship and Immigration Canada's enforcement activities and the question of public confidence in the system. As noted previously, the deep pessimism in Not Just Numbers over both of those issues motivated this reference to the Committee.
While there is no doubt that there are problems in immigration enforcement, the Committee does not believe that they are as dire as Not Just Numbers suggests. For example, we note the significant improvement in removals from Canada in recent years. Removals in 1997 increased by 36.5% over the previous year, which in turn was an increase of 21.7% over the year before that. There are currently some 8,000 active removal cases, not an extraordinary figure in view of the fact that over one million immigrants have come to the country in the last five years alone. That said, both Citizenship and Immigration Canada and this Committee do realize that there are problems in the enforcement area, and are dedicated to finding solutions. We hope that this Report will contribute to these efforts.
Liberty is a fundamental value in Canadian society. We value our own freedom, and the freedom of others, and remove it only for valid reasons, imposed by law, and by means of processes that are, and are seen to be, fair. Generally speaking, before we detain individuals, we search for alternatives consistent with the goals we are trying to achieve. If detention is necessary, we try to minimize its length, if at all possible, and we insist on rules and regulations designed to ensure that detainees are treated in a humane manner with full respect for the individuals' rights and dignity.
These values do not change merely because detention occurs for immigration purposes and relates to non-Canadians. Detention in an immigration context has two purposes: to protect Canadians from individuals who may pose a danger to them, and to maintain the integrity of the Immigration Act. Detention contributes to the second goal by facilitating necessary immigration procedures and enforcement actions, including the removal of those lawfully entitled to be removed from Canada. Only if this happens, and happens in a timely fashion, can public confidence in the system be maintained.
A small percentage of people detained for immigration reasons will be refugee claimants,4 that is, people who are seeking Canada's protection and whose case will, in the normal course, be heard by the Immigration and Refugee Board. Until the Board makes its decision, it is not known whether or not any individual claimant will be found to be a Convention refugee. The United Nations High Commissioner for Refugees takes the position that the detention of refugee claimants is inherently undesirable, but if it is necessary, that body urges that countries recognize the severe impact that detention may have upon already vulnerable people, particularly single women, children, unaccompanied children, and people with special medical or psychological needs as a result of their previous experiences. Among the latter may be victims of torture, who could be re-traumatized by the experience of detention. The Committee accepts this view, and would be opposed to any proposals for legislative change that do not take it into account.
In general, the Committee supports the current criteria for detention in the Immigration Act, although we believe that certain of those criteria should be implemented differently. It is self-evident that people who could pose a danger to the public should be detained, as should those who are thought to be inadmissible to Canada on very serious grounds, such as terrorists, war criminals and security risks.
Apart from those grounds, the most common reason for detention is that the person is not likely to appear for an immigration proceeding or for removal from Canada. Before detention is ordered, however, alternatives to detention, with or without conditions, are considered if it is thought that such action will reduce to an acceptable level the risk of the person not appearing. Alternatives include cash bonds, conditional bonds, or a promise to appear. The Committee was informed about the success of the Toronto Bail Program, which permits people who cannot arrange bonds to be released on a promise to appear. The Program provides supervision for these people. Terms and conditions may also be utilized to minimize risk, such as reporting requirements, restrictions on movement, and so on.
Many of the Committee's non-governmental witnesses reported to us their impression that decisions to detain people on the ground that they presented a flight risk were often arbitrary and inconsistent. Moreover, it was their opinion that the criteria were applied in a different fashion in different parts of the country, and that the length of the period of detention also varied across the country.
The Committee is aware that there are two sides to most stories, and that without seeing a detainee's file, it is impossible to judge whether there are reasonable grounds for detention, or for its continuation. Nevertheless, it is troubling to the Committee that so many witnesses believe that there is faulty decision-making in this area.
We note that the Immigration and Refugee Board has recently distributed Guidelines on Detention to assist the decision-making of their adjudicators, the officials who review decisions to detain made by Citizenship and Immigration Canada's officers. The Committee hopes that these guidelines will significantly improve the consistency of detention and release decisions made by adjudicators.
The Committee has examined the existing instructions from Citizenship and Immigration Canada to immigration officers regarding detention. While they do cover a number of indicators regarding the likelihood of a person being available for immigration procedures, they are somewhat cursory, particularly in comparison with the Immigration and Refugee Board's guidelines. We believe that with more ample departmental guidelines the potential for better initial decision-making could be increased and greater consistency achieved across the country. We note that Roger Tassé, who examined enforcement issues for the Department in 1995, reported that front-line immigration officials expressed the need for criteria to help them make decisions regarding detention and release.5 It is also possible, as was suggested by one witness, that better guidelines, which promote clearer reasons for detention, could help dispel the feeling that some decisions are racist.
We are aware that Citizenship and Immigration Canada has been developing new guidelines for some time, and we urge that they be introduced as soon as possible. In addition to providing expanded information on detention and release criteria, we would expect to see a fuller discussion of the importance of personal liberty, and an emphasis on the necessity to examine all other alternatives, before depriving someone of his or her freedom. A number of the principles and approaches in the new Immigration and Refugee Board's guidelines seem equally relevant for immigration officers' decisions to detain.
We would also expect an instruction to officers to assess the estimated length of detention, if possible. If it is known right from the beginning that detention will be lengthy, release should be considered pending the work required, rather than detaining the person the whole time.
Accompanying the introduction of guidelines, there should be a period of training designed to familiarize officers with the content, emphasize the importance of the detention decision, and foster consistency among the decision-makers.
Recommendations:
1. Citizenship and Immigration Canada should make the implementation of new guidelines on detention for immigration officers a high priority in order to foster consistency across the country.
2. Detention should be imposed only if the guidelines have been carefully followed, and only as a last resort after the possibility of conditional release has been carefully considered and rejected.
3. New guidelines on detention should be accompanied by expanded training for all individuals who will be applying them.
The new Immigration and Refugee Board guidelines deal with the matter of long-term detention at some length. They state as a principle that detention must be for a reasonable length of time, given all the circumstances of the case. In particular, they note that for individuals detained pending their removal, "continued detention is justified only if the removal order can be executed within a reasonable period of time" (emphasis in original).
The Committee agrees with both the principle, and with its application. It is crucial to keep in mind that these people are detained so that the immigration process can continue. If the process cannot continue, or cannot be completed in the foreseeable future, through no fault attributable to the detainee, release should be seriously considered. Yet, because of our visits to the detention centres and the testimony of our witnesses, we have concluded that this principle is not always applied rigorously enough.
We are aware that some instances of long-term detention will be reasonable, particularly if the continued detention is attributable to the detainee's own actions. In other cases, however, we see no need to continue detention where removal is not imminent, for example, as a result of inaction on the part of immigration officials, the existence of a state of danger in the country to which the person will be removed, or non-cooperation on the part of a receiving government.
Whatever the cause, we believe there should be a more explicit timeframe within which detained individuals who are not a public danger should be released if removal is not imminent. Whether that time should be 90 days, or some other period, we are unable to say, but it should be long enough to give immigration officials every opportunity to effect the removal, and short enough to provide them with a strong incentive to do so.
Recommendation:
4. People who are detained and who are not a danger to the public should be released after a specified period of detention if, through no fault of their own, their removal is not imminent. The Immigration and Refugee Board guidelines should be redrafted to reflect this policy, which should also be considered for inclusion in the revised Immigration Act.
As we noted at the beginning of this discussion, there are two main grounds of detention, and to this point we have focused on detention as a means of ensuring that a person will be available for immigration hearings or for removal. This ground, and the ground of public danger, are by far the two most commonly used bases for immigration detention.
The Committee wishes to point out, however, a little-used provision of the Immigration Act that permits detention on the basis that the person's identity is not established. Detention under this provision requires a review by an adjudicator every seven days. We remark on this section because it is part of our mandate to address the question of the restoration of public confidence in the immigration enforcement process. We are aware that it strains public credulity when people who arrive in Canada without travel documents, sometimes without any documents at all, and occasionally denying any knowledge of what flight they were on, are allowed to enter Canada and remain at large pending the hearing of their refugee claim.
We are aware of the numerous legislative and administrative steps that Citizenship and Immigration Canada has taken in the past, and continues to take, with some success, to deal with this kind of problem. Nevertheless, it continues to bedevil Canada, as indeed it does other Western governments. Because the question of personal identity is of such fundamental importance, and in view of our mandate to deal with the restoration of public confidence in the enforcement process, the Committee is prepared to recommend the use of the power to detain until identity is established.
In making this recommendation, the Committee wishes to emphasize that we do not wish to see a significant increase in the level of detention in Canada. We believe that technology could be used to good effect to reveal information about people who arrive without documents. This would, in turn, minimize the need for detention related to questions of identity.
The Committee recommends that Citizenship and Immigration Canada should press for scanning technology to be used at airports abroad to scan the travel documents of all individuals on flights coming to Canada that have presented control problems. Scanning travel documents abroad and transmitting the data to Canada would accomplish several things. It would establish beyond doubt what airline the person arrived on and the point of embarkation. People would no longer be able to camouflage this information. Further, the scanned document would establish the identity that the person used to board the airplane. The end result would be that establishing identity in Canada would be greatly facilitated, thus decreasing the amount of detention for that purpose that would be necessary.
Recommendations:
5. Citizenship and Immigration Canada should detain in cases where the identity of a person is not established.
6. Citizenship and Immigration Canada should investigate the feasibility of instituting, in cooperation with airline carriers, a system to scan the travel documents of people coming to Canada on flights that have presented control problems.
C. Conditions in Immigration Detention Centres
Although Not Just Numbers referred only briefly to conditions in detention centres, the Committee's witnesses alerted us to what they perceived to be a number of problems in these institutions. Committee Members then followed up, both individually and as a Committee, with visits either to the immigration detention centre in Mississauga, to the centre in Laval, or to both. A number of things struck the Members about the centres. For those who visited both, the characterization was that they were like night and day. Suffering in the comparison was the Mississauga facility (the Celebrity Inn) which, among other failings, lacked sufficient indoor common space and had a dreary, small outdoor area. Nor were there adequate facilities where children could play. While not overtly dirty, the Mississauga facility did not seem particularly clean, and the air quality was less than desirable.
The Committee has concluded that there is a need for uniform conditions in immigration detention centres, and that these should be modelled on the Laval facility. It is important that immigration detention facilities should be as comparable as possible; if that is not possible, given the physical plant and layout at Mississauga, then Citizenship and Immigration Canada should consider finding a new facility.
The Committee is aware of the valuable work that non-governmental organizations perform in the detention centres. We realize that there already exist partnerships between Citizenship and Immigration Canada and a number of these groups, and we believe that these should be strengthened and ways sought to enable the organizations to expand their work. Of course, this also applies to the many other ways in which non-governmental organizations serve immigration and refugees, but it seems particularly essential in the detention centres.
Recommendations:
7. Conditions in immigration detention facilities should be uniform. If it is impossible to upgrade the Mississauga detention facility, a new facility should be sought.
8. Citizenship and Immigration Canada should build on its existing partnerships with non-governmental organizations in seeking ways to enable those organizations to expand their work in immigration detention centres.
Although children are not detained in immigration detention centres in their own right, they are allowed to stay with their detained parents if the family wishes to stay together. Detention for anyone is difficult, but for children it is particularly trying. Not only does it deprive them of many of their normal activities, more importantly, it interrupts their education. For this reason, the Committee believes that special provision should be made for children who have lived in a detention centre for longer than seven days. Children in this situation should be provided with some formal education and language training, with the expenses paid by the federal government.
Recommendation:
9. Young people who have lived for longer than seven days in an immigration detention centre should have access to educational and language training programs paid for by the federal government.
In talking to the detainees, some Members found that in some cases they were experiencing a high degree of isolation because they did not seem to be aware of their legal situation or their rights. We know that Citizenship and Immigration Canada provides all detainees with pamphlets in a variety of languages that explain their rights and the rules of the institution. However, detainees are in an unfamiliar situation and must often deal with language barriers, including the possibility of illiteracy in their own language. Clearly, one written communication will often be insufficient. We therefore recommend that verbal follow-up in their own language be undertaken with detainees who seem to require it so that their position and rights are made as clear to them as possible. Non-governmental organizations could have an important role to play in this regard.
Recommendation:
10. The brief written material given to all new detainees at immigration detention centres should be followed up with verbal communication in their own language to ensure that they understand their legal situation and the rules of the institution. Non-governmental organizations should be encouraged to assist in this process.
The Committee noted above that the United Nations High Commissioner for Refugees takes a strong position on the desirability of avoiding the detention of refugee claimants and on the conditions under which claimants should be detained if detention is found to be justified. The Committee has carefully examined their policies on detention, and believes that the values we have supported, and the recommendations we have made in this Report, together with current detention practices that we have not discussed because there was no need, are fully consistent with the positions taken by the High Commissioner.
One position that the Committee has not addressed to this point, however, is the United Nations High Commissioner's view that claimants should not be accommodated with persons whose reason for detention relates to criminality, unless no other reasonable option exists. The Committee fully endorses this view; indeed, we would go further and state that there should never be an occasion where claimants are accommodated with criminals. We realize that in the immigration detention centres discussed here - Mississauga and Laval - this does not happen. In other centres, however, where immigration detention is carried out in a provincial jail, it is a distinct possibility. The Committee, therefore, urges the government to ensure that refugee claimants about whom there is no suggestion of criminality not be detained with criminals.
Recommendation:
11. The government should ensure that refugee claimants about whom there is no suggestion of criminality are not detained with criminals.
A number of the Committee's witnesses raised the issue of the handcuffing of detainees in immigration detention centres. We were told that this had happened even in front of one person's children. The Committee understands that it is government policy to handcuff detainees when they are being transported elsewhere for hearings or detention reviews, and we accept that this would seem to be necessary in the interests of safety. There are exceptions to this rule for minors, pregnant women, the elderly, or for medical reasons.
Nevertheless, we find the practice troubling. These individuals are not criminals, and efforts should be made to change practices that tend to stigmatize them as such. Instead of the necessity of detainees being moved for their hearings, a costly and resource-intensive activity, the Committee suggests that immigration officials and adjudicators come to the detention centres and conduct the proceedings there. Although the centres may not currently contain adequate rooms for this purpose, this should not be an insurmountable problem. If, as we have discussed earlier, the Mississauga facility will need to be replaced, appropriate hearing rooms could be included in the specifications for the new building.
Recommendation:
12. Detention reviews and other immigration hearings should be conducted at immigration detention facilities, thus avoiding the need to transport handcuffed detainees to other locations for those proceeings.
D. Not Just Numbers and Detention
It should be clear from the foregoing that the Committee is unable to agree with the key proposals in Not Just Numbers that deal with provisional status and detention. We need not deal in any length with provisional status, because, in our view, it is an unnecessary concept if the consequence of violating the status - mandatory detention - is itself rejected.
We oppose the approach to detention taken in Not Just Numbers for a number of reasons. We believe, and the authors of the Report in their testimony did not deny, that their approach would almost surely lead to a significant increase in detention. If that result were inevitable because of immigration problems so serious that drastic measures were justified, then the Committee could reluctantly accept it. Yet, while there are no doubt problems in the immigration system, we have received no evidence that they are so serious as to warrant that kind of response, or, indeed, that such an approach would solve the problems in any event.
Although Not Just Numbers was concerned about arbitrary decision-making regarding detention, as is the Committee, we are unconvinced that the proposed system would remove it to any great degree. Moreover, it could exacerbate it. Under that system, although detention would be mandatory upon the loss of provisional status consequent upon the violation of administrative and other rules, it would always be open for individuals to explain that they had good cause for violating a condition of their status. Thus, officers would have to weigh a greater number of factors than currently, and the ambit of discretionary decision-making would increase significantly.
Moreover, we are unconvinced that mandatory detention should be used as an incentive for compliance with immigration rules, or even that it would be successful. Detention for purposes of compliance would be a significant extension of current detention principles, principles that we accept and see no wish to extend, absent an emergency. We return to the values that we discussed earlier in this Report, key among which is liberty. We have no desire to deprive people of their liberty merely on the basis that they have violated administrative rules, such as reporting requirements.
This is not to say that we should give up on requiring people to comply with necessary rules and procedures. We note that there are sanctions now for people who do not comply. For example, if refugee claimants do not file the correct documents on time, they risk having their claim declared abandoned. If people do not comply with a departure order within 30 days, it automatically becomes a deportation order and legal re-entry into the country is virtually foreclosed. For serious violations such as not appearing for an examination, inquiry or removal, the Act already provides that an arrest warrant will be issued.
The main reason the Committee rejects the approach to detention in Not Just Numbers, however, is that we have concluded that we do not have a serious detention problem. Instead, we have a removal problem, and that will be addressed in the next section of this Report. We fear that if Not Just Numbers' proposals regarding provisional status and detention were accepted, we could be creating more problems than we have now.
Recommendation:
13. Citizenship and Immigration Canada should not accept the proposals of Not Just Numbers that include the establishment of provisional status and mandatory detention consequent on loss of that status.
As part of the structural changes to the immigration system in Not Just Numbers, it was proposed to eliminate adjudicators, who are employees of the Immigration and Refugee Board, and provide that detention reviews would be performed by status determination officers, who would be employees of Citizenship and Immigration Canada.
The Committee cannot agree with this proposal. We feel that the current mechanisms for reviewing detention decisions are adequate and appropriate. In particular, we support the fact that the review function is performed by individuals who are independent from Citizenship and Immigration Canada, and are seen to be so. As our witnesses pointed out, that independence evolved slowly, in stages over the years, and should not now be jettisoned. The Committee feels strongly that the theoretical and practical independence of the detention review function should be retained.
Recommendation:
14. The detention review function should continue to be performed by individuals who are institutionally independent from Citizenship and Immigration Canada.
As we noted above, the Committee has concluded that our main problems in the enforcement area relate to removals, not to detention. Moreover, we have no desire to support recommendations that would make detention an issue where it is not now.
In saying that we have a removal problem, what exactly do we mean? Fundamentally, we mean that Canada has a difficult time removing in a timely manner people with no legal right to be here. This, in turn, has affected the Canadian public's confidence in immigration enforcement activities. The challenge is to identify and analyze the various factors that contribute to those difficulties, and assist in their solution.
Citizenship and Immigration Canada outlined for the Committee its view of the major impediments to removals:
1. People who arrive without travel documents present complications for removal. These can result either from the non-cooperation of the individuals themselves in obtaining the required documents, or of the country to which they are to be returned.
2. The activities required for removal are resource-intensive at a time that resources are limited and stretched.
3. Dated technology makes it difficult to track people through the enforcement process, and cannot generate needed data.
4. There are a number of legal means to delay removal.
5. When removals are delayed, individuals set down roots in Canada. For non-criminals, removal at that stage is often seen as inhumane.
To those difficulties in removing people we may add certain other reasons, such as the suspension of removals to countries that present a danger, occasional requests by international tribunals to defer a removal until they have examined the case, and the disappearance of individuals desperate to avoid removal.
The foregoing present difficult issues, and the Committee does not pretend to have all the answers. Indeed, if the remedies were obvious, they would have been implemented long ago. However, we will try to address most of the issues we have identified, and also respond to some others concerning removals that were raised by our witnesses.
It was clear right from the start of our study that the Citizenship and Immigration Canada suffers from a serious lack of data relating to enforcement that impedes attempts to gauge the extent of the problems and respond to requests from parliamentarians and others. These deficiencies were also stressed by the Auditor General in his report of December 1997.
Citizenship and Immigration Canada cannot accurately track a client at all points in the system, including at many of the stages that impede removal. Thus, a complete profile of where all the removal cases are in the system cannot be generated at the present time. Moreover, it is impossible even to provide a complete inventory of all removal cases or the number of outstanding removal orders. "Guesstimates" make resource planning difficult and do not allow for the generation of management data that might help pinpoint problems in removals more accurately.
The Committee has been informed that after a false start at systems modernization, which had to be abandoned for lack of funds, the Department is now developing a National Case Management System that will be able to track enforcement cases at a reasonable cost. The system will be introduced in the major centres over the course of the first half of 1999; meanwhile, Toronto has been provided with a new local system.
The Committee cannot emphasize too strongly the importance of these information technology initiatives. Not only can Citizenship and Immigration Canada not perform its functions adequately without proper information tracking, oversight bodies such as the Auditor General and this Committee cannot be provided with the tools to analyze fully the problem areas. As noted, management at Citizenship and Immigration Canada also does not have sufficient tools to manage the program the way it should be managed. With respect to removals and case management, therefore, the Committee urges the government to make the development of information technology tools its highest priority.
Recommendation:
15. With respect to removals and case management, Citizenship and Immigration Canada should make the development of modern information technology tools capable of supporting the enforcement function its highest priority.
C. Cooperation of Foreign Governments
Where an individual has arrived in Canada having destroyed or otherwise disposed of his or her travel and other identity documents, removal can be difficult. Receiving countries must be satisfied that the person to be returned is their national, but some countries erect roadblocks to legitimate removals because they do not want the person back. This is the case even despite bilateral agreements with some of them.
The Committee is not convinced that Canada is doing all it can to persuade such countries that they have an obligation to take their nationals back. We are aware that Roger Tassé, relating the concerns of enforcement employees in his Report, noted that they felt more could be done to press foreign governments to cooperate more fully in issuing travel documents and accepting the return of their nationals.
We fully agree with recommendation 144 in Not Just Numbers - "The Minister of Citizenship and Immigration and the Ministers of Foreign Affairs and International Trade should jointly establish new priorities to encourage cooperation from other countries in issuing travel documents and accepting the return of their nationals" - but we would go further.
The Committee believes that we should avoid the fallacy of seeing this problem as one to be handled only by the enforcement officials of Citizenship and Immigration Canada. Linkages could be made between the actions of certain countries in refusing to accept back their nationals, and certain benefits they receive. For example, some countries send significant numbers of seasonal workers to Canada; other countries send large numbers of their students to be educated here. Where a state has an interest in those kinds of movements, pressure could be exerted regarding greater cooperation in accepting their nationals removed from Canada.
More broadly, the government could make a link between foreign aid, which assists the receiving country, and cooperation with immigration removals, which assists Canada. Problems with certain countries are not new; if they have not responded adequately to normal overtures to date, the Committee has concluded that it is time to apply additional pressures. As well as making the above linkages, it would be useful to require the Minister to table each year a report to Parliament that would name the countries that are unwilling to supply documents and cooperate in receiving their nationals, including a list of the number of individuals involved.
Recommendations:
16. In order to apply pressure to those countries that do not cooperate in taking back their nationals, the government should apply more pressure by making linkages between cooperation in that area and such matters as the issuance of visas, worker programs, and foreign aid.
17. The Minister of Citizenship and Immigration should table each year a report to Parliament naming the countries that are unwilling to cooperate in the removal from Canada of their nationals, including a list of the number of individuals involved.
Trite as it may seem, one of the reasons Canada has such a problem with removing people is that there is a significant number to remove. One obvious response, and one that the government has been pursuing, is to instigate measures to try to prevent people who will be inadmissible to Canada from arriving here in the first place. These measures include transportation carrier sanctions, visitor visa requirements, and training of overseas airline agents in recognizing valid Canadian documents.
The Committee supports those initiatives as the most cost-effective, efficient manner of reducing the need for costly, lengthy removal processes once inadmissible people arrive. We believe that when additional resources become available to Citizenship and Immigration Canada, they should be applied to the expansion of our overseas interdiction activities.
In making that recommendation, we are aware of the dilemma faced by genuine refugees who may be trying to find protection in Canada, but who may be prevented from coming here as part of these measures. We note, however, that they may still seek out our embassies and consulates abroad, and present their case for refugee protection.
It has become clear in recent years that one of the reasons our enforcement problems have escalated is the existence of professional smuggling rings. These highly organized and lucrative rings prey on the desire of individuals for a better life in the West, and Canada is as much a target as is Western Europe and the United States. Solutions to these problems are no doubt complex, and require cooperation and intelligence-sharing among the target nations, activities we know our government is engaged in. Nevertheless, the Committee urges even more efforts, including exploring the possibility of urging countries to create a criminal offence of organizing, or conspiring to organize, the illegal entry of individuals into another country. Thus, a travel agent who organized the entry of a group of inadmissible people - by means, for example, of fraud or forged passports - could be prosecuted, with Canada's help, in any country where the organization took place.
Recommendations:
18. Recognizing that the interdiction abroad of people who are inadmissible to Canada is the most efficient manner of reducing the need for costly, lengthy removal processes, Citizenship and Immigration Canada should apply additional resources available to expand our overseas interdiction programs.
19. The Canadian government should urge other countries to create a criminal offence of organizing, or conspiring to organize, the illegal entry of individuals into another country.
20. The Canadian government should work in concert with other countries that also must deal with the consequences of illegal immigration in order to apply international pressure on the primary countries in which illegal immigration originates.
Most refugee claimants rejected by the Immigration and Refugee Board have an opportunity to apply for what is called a risk review (the Post-Determination Refugee Claimants in Canada Class). In part, the purpose of the review is to ensure that Canada complies with obligations other than the Refugee Convention, such as the Convention Against Torture.
The review is conducted by Departmental officials, and assesses whether, if removed to his or her country of origin, the person would be subjected to an objectively identifiable risk in every part of the country; the risk is required to be unique to that individual. The threat must consist in a risk to the person's life, or the possibility of extreme sanctions or inhumane treatment. The success rate under these criteria is very low and the process is time-consuming.
In his December 1997 Report, the Auditor General criticized the existing risk review criteria and procedures. He noted that the criteria used are very similar to those applied in determining refugee status, and that the personal and country information used by the officers making the decision is similar or identical to that used by the Immigration and Refugee Board (with the addition of the applicant's submissions).
Not Just Numbers recognized the importance of a pre-removal risk review, and recommended that it be available to anyone being removed from the country (recommendation 152). Not Just Numbers set stringent conditions: the application would need to be made within 48 hours of notification of the date, time and destination of the removal. The removal order would be stayed until an answer was received, hopefully within one week.
None of the Committee's witnesses agreed that the timing of recommendation 152 was feasible. One agency that assists individuals with their risk reviews testified that 48 hours was not nearly enough time to gather the information for a reasoned application. The Committee agrees with that assessment. Moreover, once the removal plan is in place, and presumably tickets have been purchased, it would seem to make no sense, and could be costly, to halt the procedures for what might be a lengthy period.
The Committee notes again the criticisms of the Auditor General, particularly those relating to the overlap in criteria and information. We suggest that the jurisdiction of the Immigration and Refugee Board be broadened to include a risk review that would be conducted at virtually the same time as the determination relating to refugee status. If the latter were rejected, the Board would have most of the documentation at hand with which to assess other risks to the individual, and the savings in time could be considerable. For individuals accepted at that point by the Board, the psychological stress of not knowing their fate would be over much sooner, and they could begin their integration into Canadian life. It might still be necessary to conduct a risk review prior to actual removal for other individuals, for example, if country conditions changed, or new evidence became available, but those reviews could also be handled by the Board.
Recommendation:
21. Jurisdiction to assess the risk to an individual of removal should be transferred to the Immigration and Refugee Board.
F. Humanitarian and Compassionate Reviews
The general ground for making an application to remain in the country on humanitarian and compassionate grounds is that being required to apply for permanent residence from outside the country would entail severe hardship. Although not strictly relevant to the enforcement function, these reviews can delay removal in certain cases. Although nothing in law precludes the carrying out of a removal order merely because a person has made an application to an immigration officer for a review of his or her case on humanitarian and compassionate grounds, officers are sometimes reluctant to proceed, particularly if the case is a high-profile one.
It is clear from the Auditor General's Report that there are numerous flaws in this process. He noted: the lack of monitoring of decisions; the lack of documentation of decisions, so the reasons for accepting or rejecting a case are not apparent; the lack of supervision of the officers making the decisions and their limited training; and the lack of overall statistics on the number of applications, including repeat applications.
In its response to the Auditor General, the Department agreed with the above criticisms and noted the steps it was taking to improve the situation, some of which we note, however, have been in progress for several years. The Committee agrees that much needs to be done in this regard, but considers that applications to remain in Canada on humanitarian and compassionate grounds could also be consolidated at the Immigration and Refugee Board, since many of the applicants are rejected refugee claimants.
Further, in view of our testimony that the process can take six to eight months or more, we think that it would be appropriate to establish a performance standard for responding to such applications. Ninety days should be the maximum delay in an ordinary case, and in cases of urgency, such as imminent removal, we would expect a must faster answer. With regard to the criteria for humanitarian and compassionate consideration, we believe that the interests of children should be given more emphasis.
Recommendations:
22. Citizenship and Immigration Canada should swiftly respond to the criticisms of the humanitarian and compassionate process made by the Auditor General.
23. Citizenship and Immigration Canada should consider consolidating humanitarian and compassionate reviews, along with risk reviews, at the Immigration and Refugee Board.
24. Performance standards should be established for responding to such humanitarian and compassionate applications. Ninety days should be the maximum period, with shorter periods the norm in urgent cases.
25. The criteria for humanitarian and compassionate consideration should be broadened to give more emphasis to the interests of children.
G. Removal of Long-term Residents of Canada
The Committee wishes to address a matter that has been frequently controversial in recent years - the appropriateness of removing individuals who have been in Canada for a long period, often since the time they were very young. These people were raised here and have been shaped by their experiences in Canada. It is likely that all their ties are here. The Committee feels strongly therefore, that we should take responsibility for them.
We are aware that the Immigration Act makes no distinction between permanent residents who arrived 6 months ago, and those who arrived 20 years ago, or as children. That may be a factor to be considered in humanitarian and compassionate applications to the Department, and by the Appeal Division of the Immigration and Refugee Board. Nevertheless, there remains no legal protection. We note, however, that these kinds of distinctions have been made in the past in Canadian laws, and may be found in the laws of some other countries.
For example, France has comprehensive rules. Among other categories, that country protects from deportation individuals under 18, individuals who have resided legally in the country since before they were 10 years old, and, in certain circumstances, those married to French citizens, or the parents of a French child.
Although the Committee does not recommend a dramatic change to Canada's law, we believe it is time to cautiously re-examine our current position, at least in relation to people who arrived as children. It is very understandable that some countries are reluctant to accept back from Canada individuals who have absolutely no ties with their country, and, where the native language is not either English or French, do not speak that language.
It seems particularly appropriate to rethink the position of children, since their lack of Canadian citizenship is most likely due to the oversight of their parents, and in most cases, is not of their own doing. Indeed, many of these individuals have apparently thought that they were Canadian citizens, having lived here all their lives.
What is the connection between this topic and removals? First, by reducing the pool of people eligible for removal, we would preserve our scarce enforcement resources for those others to whom Canada owes little or no consideration. Second, as noted above, some countries resist accepting people back, and place roadblocks in the way. These countries might be more willing to receive back other nationals if we did not also try to remove individuals in this category. Third, even if countries do accept such people back, they are often displeased about it, and bilateral relations may suffer. If Canada were on the receiving end, we would no doubt feel the same way.
Recommendation:
26. Citizenship and Immigration Canada should give serious consideration to including in the proposed revisions to the Immigration Act protection in law from deportation to permanent residents who have been in the country for a long period of time, particularly if they came to Canada as children.
H. The Advisory Committee on Country Conditions
Although the Committee earlier supported the goal of removing people in a timely fashion, there must be certain exceptions to that rule. One of these is where deportation to a given country is not safe, not because of the situation an individual might face (as in the criteria for the risk review), but because of general conditions in the country that present a serious likelihood of jeopardy to the lives or safety of virtually everyone there.
The Minister has established a committee, the Advisory Committee on Country Conditions, to advise her on which countries fall into this category and would justify a temporary suspension of removals. It should be noted that even when a country has been judged to be generally unsafe, Canada still removes individuals there for compelling reasons, such as a serious public danger posed by a criminal.
The Advisory Committee on Country Conditions is made up of representatives from a number of different branches of Citizenship and Immigration Canada, and also searches out and receives information from non-governmental organizations, Canadian diplomats, the Immigration and Refugee Board, the United Nations High Commissioner for Refugees and other appropriate sources.
One of this Committee's witnesses, a non-governmental organization with expertise in situations in foreign countries, raised a question regarding the criteria established to guide the Advisory Committee in reaching its decisions. In its view, the criteria were inadequate for the task at hand. We have reviewed those criteria, but without direct experience we are unable to evaluate whether or not they are sufficient. Nevertheless, it is of concern to us that a knowledgeable non-governmental body feels that the criteria should be reviewed. The Committee recommends, therefore, that the government consult with experienced non-governmental organizations to gain their views as to the adequacy of the existing criteria for the Advisory Committee on Country Conditions.
Recommendation:
27. Citizenship and Immigration Canada should consult with experienced non-governmental organizations on the adequacy of the existing criteria that guide the Advisory Committee on Country Conditions.
Several of the Committee's witnesses were representatives of an organization very expert in both international human rights law and Canadian immigration law. It was their view that the human rights expressed in international treaties were not always accorded the full respect owing to them in the course of the application of the Immigration Act. The Committee supports the view of this group that international human rights are very important. We also support one of their recommendations: We agree that Canada should exercise great caution in deporting people in the face of a formal request not to do so from an international body charged with applying one of these treaties.
We are unwilling to recommend that deportation should never occur in these cases, because there could be extreme situations that would shock Canadians should the government not remove an individual. In general, however, we recommend that Citizenship and Immigration Canada show great deference to such a request, and remove a person only for the most compelling reasons.
As we noted above, the Committee agrees that international human rights are very important. For that reason, we urge that when the government is drafting new immigration legislation, it do so with a view to aligning it to the greatest extent possible with international human rights law.
Recommendations:
28. Citizenship and Immigration Canada should exercise great caution in deporting an individual in the face of a formal request not to do so from an international body charged with applying an international human rights treaty. Deportation should occur in these situations only for the most compelling reasons.
29. When Citizenship and Immigration Canada drafts new immigration legislation, it should do so with a view to aligning the new law to the greatest extent possible with international human rights law, in particular the United Nations Declaration on the Rights of the Child, which Canada signed in 1991.
Not Just Numbers made a recommendation to streamline the processing of people who had committed war crimes or crimes against humanity so that they could be removed much more expeditiously than occurs at present. The Committee heard a relatively small amount of testimony on the matter of war criminals, and agrees with one of our witnesses that these issues are very complex. We have concluded that the matter deserves further study and more serious consideration before the Committee can make recommendations. Thus, although this matter is of the utmost concern to Canadians generally, we will defer our recommendations until a later date, or until the proposed immigration legislation comes to us for intensive study.
The Shipping Federation of Canada was the only representative of the transportation industry to appear before the Committee. They pointed out some anomalies in the treatment of marine transportation companies in the Immigration Act in comparison with other kinds of transportation companies. They informed the Committee that when they act as agents for shipping lines that do not have an office in Canada, they are held responsible for violations of the Act in relation to the ships. Violations include such matters as the presence of stowaways or deserters. The Canadian agents have no ability to prevent the infractions, yet they are held financially responsible for them.
The Federation made a number of recommendations that, in its view, would aid in the enforcement of the Immigration Act. These include having a separate section in the Act relating just to marine transportation, enacting a power to detain vessels for longer than the current 48 hours, and adding definitions for certain key terms to clarify the provisions that apply to them.
The Committee agrees that marine transportation in the context of the enforcement of the Immigration Act would seem to require a closer look and likely special rules. We also support in general the recommendations noted above, and urge that the government review the sections of the Act applicable to marine transportation with a view to devising rules that are clear, fair to the industry, and that further the efficient enforcement of the Immigration Act.
Recommendation:
30. Citizenship and Immigration Canada should examine the sections of the Act applicable to marine transportation with a view to devising rules that are clear, fair to the industry, and that further the efficient enforcement of the Immigration Act.
L. The Need for a Code of Ethics or Conduct
Some of the Committee's witnesses expressed dissatisfaction with the attitude of enforcement officers, noting that this was more common in the larger centres. We are aware that in his Report several years ago, Mr. Tassé recommended that a code of ethics for removal officers should be developed, a recommendation that was echoed by a number of our witnesses during the course of this study. Citizenship and Immigration Canada has developed and distributed a general Code of Conduct to all of its staff, and has been conducting seminars to familiarize employees with it. While some work on values and ethics is being done currently within the Department in relation to enforcement functions, there does not seem to be an intention to develop a Code of Ethics or Conduct specifically related to that area.
Some of the specific concerns raised by our witnesses relating to removals could well be placed in such a code. For example, one potentially dangerous situation was pointed out to us in connection with the removal of individuals who would have been determined to be refugees by the Immigration and Refugee Board were it not for the finding that they had an internal flight alternative, that is, there was a place in their country of origin where they could find safety. It appears that from time to time officials involved in the actual removal of such an individual do not take heed of that finding by the Board, and see their task as removing the person to anywhere in the country. The Committee believes that if it is not possible to remove an individual to the part of the country where the Immigration and Refugee Board has determined the person to be safe, the removal should not proceed at that time.
Similarly, one witness stated that the removal of rejected refugee claimants back to their country of origin is sometimes communicated to the authorities in that country, a situation that could put the individuals in jeopardy. Absent questions of criminality, we see no reason for this practice.
The Committee appreciates that one organization cannot have a different ethical code for each of its many activities. It would seem, however, that the work performed by enforcement officers could well justify the development of a separate code, or at a minimum, a separate section within the general Code of Conduct applicable to the Department as a whole. It seems to us, in view of the fact that Mr. Tassé recommended such action over two years ago, that this is overdue.
Recommendation:
31. Citizenship and Immigration Canada should develop a Code of Ethics or Conduct specifically relevant to the enforcement function, to be included as part of the general Code of Conduct or as a separate document.
Even with the most exemplary code of conduct, however, mistakes are still made in any organization. It is particularly important in dealing with governmental bodies that there be adequate mechanisms to ensure that complaints that remain unresolved after going through the appropriate internal channels can, nevertheless, still be addressed.
A number of the Committee's witnesses proposed that just such a body was needed to oversee the enforcement process generally. We are not referring to matters that are required by law to be done, and subject to judicial oversight. Instead, we refer to matters of a more systemic nature and, in particular, matters that appear to violate the Code of Conduct recommended above, or to be otherwise unfair. We note that Mr. Tassé made a recommendation to a similar effect in his Report. We agree that an independent oversight body with a clear mandate would be a valuable addition to our immigration enforcement system.
Recommendation:
32. Citizenship and Immigration Canada should establish an independent oversight body with a clear mandate to deal with complaints regarding the immigration enforcement system. The body would receive complaints about treatment or violations of the Code of Conduct that remained unresolved after the appropriate internal channels had been exhausted.
1 Not Just Numbers, p. 102.
2 Ibid., p. 103.
3 Mandatory conditions would be: to comply with the proposed tight deadlines relating to making a refugee claim; to cooperate with criminal and security checks; to keep Citizenship and Immigration Canada informed of current whereabouts; to undergo a medical forthwith upon arrival; to report as required; and to cooperate regarding travel documents.
4 Of the 100 non-criminal detainees in April 1998, 15 had an outstanding refugee claim.
5 Roger Tassé. Removals: Processes and People in Transition, February 1996.