What the UNCAT Said: Oversight of Immigration Detention

The divisive topic of Canada’s use of immigration detention has once again been the focus of international discussion. Late last week the UN Committee against Torture published its findings of its 21-22 November 2018 examination of Canada in Geneva, Switzerland.

In its so-called Concluding observations, published on 7 December, the UN Committee issued a raft of recommendations, covering an array of different human rights issues with a torture/ill-treatment component. Several key concerns and associated recommendations related to the provision of independent oversight of immigration detention as well as psychiatric detention.

This short update will focus on the UN Committee’s concerns and recommendations regarding immigration detention, while a future article will examine the question of why independent oversight of psychiatric detention settings is lacking in Canada.

Immigration detention practices

In contrast to certain other countries, Canada’s dedicated immigration holding regime is relatively small, comprising three facilities. However, the country’s provincial prison estates are also used for the dispersal and detention of immigration detainees.

Immigration detention
Welcome to Canada! by Cria-cow.

According to the Canada Border Services Agency, in the fiscal year 2017-2018 some 8,355 persons were detained for a total of nearly 120,000 detention days in Canada. Of this number, 6,609 persons were held in one of the country’s three Immigration Holding Centres, while the remainder were detained in provincial and other facilities.

It was therefore especially striking that, during the recent review of Canada, the UN Committee against Torture called on the Canadian authorities to end the practice of detaining irregular migrants and asylum seekers in provincial correctional centres (see §35h). Whether Canada is willing to act on this recommendation is at present unknown.

Oversight of immigration detention

The vital issue of oversight of immigration detention comprised an important aspect of the discussions which took place in Switzerland last month.

On 21 November the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, queried the country’s ‘reluctance’ to provide for permanent arms-length oversight of immigration detention, despite the existence of an agreement with the Canadian Red Cross to monitor the country’s three Immigration Holding Centres as well as some provincial prisons. In doing so, he requested information about the modalities of the Canadian Red Cross’ monitoring of immigration detention and any related reports.

In a response presented to the UN Committee against Torture on 22 November representative of Public Safety Canada Jill Wherrett offered an overview of the monitoring arrangements between the Canada Border Service Agency (CBSA) and the Canadian Red Cross. She also announced that the Canadian Red Cross’ Annual Report of its monitoring activities of CBSA detention facilities would be made public, along with a related agency action plan. The Canada OPCAT Project awaits the publication of this report with great interest.   

Immigration detention
Palais des Nations, Geneva by UN Photo/Jean-Marc Ferre.

Despite such reassurances, the UN Committee against Torture has called for other monitoring arrangements to be instituted in relation to immigration detention in Canada. In its Concluding observations the UN Committee stated (§34):

“The Committee takes note of the detention monitoring services provided by the Canadian Red Cross, through a two-year contract signed between the Canada Borders Services Agency (CBSA) and this organization on 27 July 2017, although it remains concerned at the lack of an independent mechanism for oversight of the CBSA.”

The UN Committee therefore recommended that Canada (§35i):

“Establish an effective and independent oversight mechanism of the CBSA to which individuals held in immigration detention can bring complaints.”

For the purposes of balance, it should be stressed that the Canadian Red Cross clearly states on its website that: “Red Cross monitoring activities would not preclude or replace those of a public ombudsman with legal jurisdiction over immigration detention facilities in Canada.” Moreover, in the current absence of such a body, the Canadian Red Cross unquestionably executes a vitally important human rights oversight function. Nonetheless, the decision to build on such oversight through the establishment of a permanent arms-length body ultimately lies with the federal authorities.    

Other immigration detention-related concerns

Similar to its 2012 examination of Canada, the UN Committee once again articulated an array of concerns about the country’s use of immigration detention, making various recommendations in this connection. In general terms the UN Committee observed (§34):  

“The Committee notes with concern that the State party continues to use mandatory detention for arriving non-citizens designated part of an “irregular arrival”,and that the time limit for such detention is not defined by law. Also of concern is the absence of an effective mechanism to review the lawfulness of the detention; the inadequate medical and mental health care services in federal immigration detention facilities; and, the reliance on provincial correctional centres. Furthermore, and while noting that the existing directives provide that minors are not to be detained, except in exceptional circumstances, the information before the Committee indicates that during the period under review children continued to be placed in immigration detention, in many cases as “guests” with their parents or adult siblings. According to reports before the Committee, these children who are not officially detained have no independent right of review of their detention.”

The UN Committee’s recommendations were therefore several, some of them voiced on previous occasions, and included that:

  • mandatory detention of ‘irregular arrivals’ be repealed in law;
  • detention be used only as a last resort and for a short a period as possible;
  • a reasonable time limit on the duration of administrative immigration detention should be established;
  • judicial review or other meaningful and effective avenues to challenge the legality of administrative immigration detention should be guaranteed, including of all children detained or ‘housed’ in CBSA detention facilities;
  • children and families with children should not be detained solely because of their immigration status;   
  • efforts should be made to ensure adequate living conditions in all immigration centres;
  • and detainees should be provided with adequate medical and mental health care, including routine assessments.

Interested readers should consult paragraphs 34 and 35 of the Concluding observations for further details of these concerns and the associated recommendations.

It was not coincidental that several of these same concerns and recommendations also arose during Canada’s examination by the UN Committee on the Elimination of Racial Discrimination in 2017 and the UN Human Rights Committee in 2015. To what extent Canada will act on these key UN Committee against Torture recommendations from 2018 before its next scheduled UNCAT review sometime in 2022/23 remains to be seen.

Later this week the Canada OPCAT Project will put into focus the oversight of psychiatric detention in Canada. Thus, please visit us again shortly.

Related resources:

See the UN Committee against Torture’s Concluding observations on Canada.

Read the Global Detention Project report, Harm Reduction in Immigration Detention (2018), which outlines key measures which states can implement to lessen the harmful impact of immigration detention on detainees.

Explore the Association for the Prevention of Torture’s Monitoring Immigration Detention – Practical manual (2014), available in French and English.

Read the University of Oxford’s Faculty of Law Border Criminologies publication, HMIP Detention Monitoring Methodology: A Briefing Paper (2018), which offers illuminating insights into how the task of independent monitoring of immigration detention is being approached in one jurisdiction.