Immigration detention

COPCAT Shorts – Why the ICRC works in prisons?

The Canadian Red Cross monitors places of immigration detention in Canada, including federally-run detention centres and provincial prisons. The organization does so for some of the same reasons as depicted in the above video.

Published by the Canadian Border Services Agency on 14 February 2019, a first report highlighted the findings of Canadian Red Cross monitoring of immigration detention in Canada in the period September 2017 to March 2018. A French version of this key report is also available on the same website.   

According to the Canadian Red Cross, it endeavours to visit detention centres to which it has access four times per year with a view to making an assessment based on Canadian and international standards. During visits to detention centres it focuses on the following aspects:

  • the treatment of detainees (by staff and other detainees);
  • conditions of detention;
  • ability for detainees to contact and maintain contact with family members;
  • and legal safeguards.
Special Issue
Detained abstracts 1 by Greenmonster (2010).

More detailed information about the above approach can be found in a previously published article on this website about the first Canadian Red Cross annual report. Its main components are also highlighted in the featured video clip.

The number of migrants deprived of their liberty in Canada is not at all insignificant. 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.

Over the past year the Canada OPCAT Project has published various articles on the detention of migrants in Canada, including on the December 2018 recommendation of the UN Committee against Torture that a permanent oversight structure be instituted in the country. If ever ratified by Canada, any future NPM under the OPCAT would inevitably require unfettered access to all facilities where migrants are deprived of their liberty throughout the country.

Yet with seemingly little progress on the OPCAT ratification front, such an NPM might be long in the coming. Thus, for the here and now the Canadian Red Cross’ monitoring of immigration detention remains a key part of the Canadian detention oversight framework, for some of the reasons very well explained in the above ICRC video.


Read Juan Mendez’s article on the Right to a Healthy Prison Environment.

Learn More about the recently published Global Study on Children Deprived of Liberty.

Find out more about the Joint UN Statement on Child Immigration Detention.

Read an OPCAT Focus on Immigration Detention.

Posted by mp in Children deprived of liberty, ICRC, Immigration detention, Independent detention monitors, OPCAT, Oversight bodies

COPCAT Shorts – Joint UN Statement on Child Immigration Detention

Child Immigration Detention is Not Only Wrong, It Is Ineffective 

“Today, the United Nations Network on Migration strongly reiterates its position that child immigration detention must be ended in every region of the world. Detention of children for immigration purposes – whether they are traveling alone or with their families – has been recognized as a child rights violation and can be highly damaging to their physical and psychological health and wellbeing.  Detention of children based on their migratory status is thus never in their best interests.  Community-based programmes, case management and other human rights-based alternatives have proven highly effective and all governments should work to replace immigration detention for children and families with appropriate reception and care arrangements.”  

“Many governments that are implementing appropriate reception and care arrangements as alternatives to detention for children and families have found them to be more cost-effective and to result in low rates of absconding and high rates of compliance with status determination processes, including removal orders. Keeping families together over the course of immigration proceedings does not necessitate detention. This is a false choice.  Detention is expensive and burdensome to administer, and there is no evidence that it deters individuals from migrating or claiming asylum.”

Excerpts from the Joint Statement by the United Nations Network on Migration on Child Immigration Detention, published 16 September 2019.


Read the full statement here.

Read the Canadian Red Cross’ 2017-2018 Annual Report on immigration detention in Canada.

Find out what the UN Committee against Torture observed about immigration detention in Canada.

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

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. 

Posted by mp in Immigration detention, Places of detention

Academic News & Views: An OPCAT Focus on Immigration Detention

As part of the Australian Journal of Human Rights fascinating new Special Issue on the OPCAT, the matter of ensuring adequate coverage of immigration detention has come into sharp focus. In a brand-new article by Madeline Gleeson of the University of New South Wales titled ‘Monitoring places of immigration detention in Australia under OPCAT’, the author focuses on the challenges of making certain that immigration detention is effectively monitored in practice.

The parallels with Canada are illuminating. As has been highlighted in recent Canada OPCAT Project posts, even though Canada’s formal immigration detention estate is small, the Government frequently resorts to the use of provincial prisons for immigration detention purposes. Furthermore, unlike in Australia, there is currently no statutory inspection body for immigration detention in Canada, bar a temporary monitoring agreement with the Canadian Red Cross.     

Madeline Gleeson
Australian Journal of Human Rights – image copyright of the AHRC Centre at UNSW Sydney.

In her thought-provoking article Madeline Gleeson makes the essential point:

“…. while the government immediately claimed it as a ‘significant victory for human rights’ (Bishop and Brandis 2017b), the extent to which ratification of OPCAT will in fact mitigate the risks of torture and ill-treatment in places of detention will depend on how it is implemented. In the context of immigration detention in particular, there are significant challenges and controversies to be overcome if OPCAT is indeed to play the preventive role for which it is intended.”

For Australia these aforementioned challenges and controversies are several. In her article Madeline Gleeson embarks on a broad sweep of what might constitute immigration detention in Australia, including more typical facilities located within the country, but also focusing on less typical accommodation type settings, international transit zones in airports, escorts and transfers, so-called off-shore processing centres in Nauru and Papua New Guinea, and cloaked-in-secrecy detention at sea.

Madeline Gleeson
Maitland Gaol by OZinOH (2007).

For Canadian readers the author’s detailed discussion points to the wide range of potential immigration detention settings in any given country, itself an extremely informative exercise. All of these settings, she correctly argues, potentially fall within the scope of the OPCAT.   

Madeline Gleeson’s focus on the general features of an NPM also serves as a useful reminder of the wide potential array of functions of an effective NPM. In doing so, she examines two existing oversight bodies responsible for immigration detention in Australia, namely the Australian Human Rights Commission and the Commonwealth Ombudsman.

As Australia’s future NPM is likely to comprise a multi-agency body whose work is coordinated by the Commonwealth Ombudsman, the author makes various key recommendations aimed at ensuring its legal and functional independence as well as its efficacy as an institution. This advice merits a detailed reading, especially if, as predicted by this writer, Canada also opts for a multi-body NPM as its future mechanism under the OPCAT.    

As in Canada, Madeline Gleeson also notes that the Australian Red Cross has a long history of visits to immigration detention facilities across Australia through its Immigration Detention Monitoring Program. The writer notes: “The Red Cross’s engagement with the Australian government is confidential, focusing on identifying issues of humanitarian concern and providing advice on how to minimise harm for people in detention.” However, unlike in Australia, Canada currently has no other permanent oversight entity for its main immigration detention settings such as an ombudsperson-type body.

The final section of the author’s paper highlights several outstanding challenges relating to the monitoring of immigration detention in Australia. While these factors are to a certain extent Australia-specific in scope, several of Madeline Gleeson’s observations apply beyond its national borders to other current and future OPCAT States Parties such as Canada. These include that:

  • unfettered access to NPM monitors should be ensured in practice in terms of places, people and information;
  • the monitors should be able to address the root causes of potential abuses which may lie in official state policy (such as punitive immigration approaches);
  • and states should be open to independent scrutiny and criticism of their immigration policies, no matter how unpalatable the truth.

All of these lessons could have resonance in the Canadian context as a state which may one day get around to ratifying the OPCAT.

In a word, Madeline Gleeson has made both a very interesting and highly practical contribution to the Special Issue on the OPCAT, with several important lessons for the Canadian setting. With further articles to come in this excellent series of papers, please stayed tuned to the Canada OPCAT Project dial.  


Many thanks to Steven Caruana for his assistance in relation to this post.

The above article by Madeline Gleeson appears in the current issue of the Australian Journal of Human Rights, published on-line on 17 April 2019. The article can be accessed free-of-charge here.

Read an overview of other articles in the Special Issue on the OPCAT of the Australian Journal of Human Rights.  

Read more about the Canadian Red Cross Immigration Detention Report.

Examine the Concluding observations of the UN Committee against Torture from December 2018 concerning oversight of immigration detention in Canada.

Posted by mp in Australia, Immigration detention, NPMs, OPCAT, Oversight bodies

CBSA Release of Canadian Red Cross Immigration Detention Report

Successfully evading the watchful eye of even the Canada OPCAT Project, the first report of Canadian Red Cross monitoring of immigration detention in Canada has been released.

Published by the Canadian Border Services Agency (CBSA) on 14 February 2019, where the news item remains a front page feature, the report highlights the findings of Canadian Red Cross monitoring of immigration detention in Canada in the period September 2017 to March 2018. A French version of this key report is also available on the same website.     

If the CBSA seems only too pleased to mark the release of the Canadian Red Cross’ CBSA detention report, the said report has oddly yet to surface on the Canadian Red Cross website. Even so, its publication comes as a very welcome step in opening up a detention setting in Canada, for which there is currently no statutory arms-length oversight body.

CBSA detention report
CBSA by British Columbia Emergency Photography (2014)

Instead such facilities are monitored as part of a two-year agreement between the CBSA and the Canadian Red Cross, as highlighted in the Executive Summary of the recently published report. In the document the Canadian Red Cross summarizes its main findings, as follows:

“Under the reporting period, the IDMP carried out a total of fifteen (15) visits to detention facilities holding immigration detainees between December 2017 and end of March 2018. Based on our observations made during this reporting period, CRCS grouped its concerns into the following five themes:  

  • Co-mingling of immigration detainees in correctional institution;
  • Lack of orientation about the detainees’ rights and responsibilities in detention;
  • Difficulties in accessing certain medical service;
  • Lack of access to outdoor areas in some visited facilities;
  • Difficulties in maintaining contact with families.”

On the basis of the CRC’s findings and observations the report makes the following recommendations:

  • “Where detention is necessary, to hold immigration detainees in facilities other than correctional prisons and where this is not possible, to separate immigration detainees from the rest of the prison population; 
  • To ensure that immigration detainees are fully aware of their rights and responsibilities, regardless of their place of detention; 
  • To ensure that immigration detainees have access to adequate mental health services wherever they are detained; 
  • To provide immigration detainees with daily access to outdoor areas as well as recreational activities; 
  • And finally, to allow regular and adequate contact between detainees and their families.”

In reaction to the Canadian Red Cross report, the CBSA has issued its Management Response and Action Plan, outlining its raft of proposed actions.    

CBSA detention

In contrast to certain other countries, Canada’s dedicated immigration holding regime is relatively small, comprising just three facilities. However, the country’s provincial prison estates are also used for the dispersal and detention of immigration detainees, a practice not without accompanying concern. Moreover, annually, sizeable numbers of persons are detained on immigration grounds.

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 bears noting that, during its examination of Canada in November 2018, the UN Committee against Torture voiced various concerns about recourse to immigration detention in the country, including the use of provincial prisons and the absence of any arms-length oversight body of such detention facilities.

During the said review in Geneva, the Canadian delegation stressed its intention to make public the annual reports of the Canadian Red Cross Immigration Detention Monitoring Program. The publication by the CBSA of the first annual report of activities is therefore to be welcomed.


Read the CRC report in English.

Read the CBSA Management Response and Action Plan in English.

Lire le rapport de l’CRC en français.

Lire la réponse de la direction de l’ASFC et un plan d’action en français.

Examine the Concluding observations of the UN Committee against Torture from December 2018 concerning oversight of immigration detention in Canada.

Explore the Canada OPCAT Project’s other featured articles relating to immigration detention, including the University of Oxford’s Faculty of Law Border Criminologies publication, HMIP Detention Monitoring Methodology: A Briefing Paper (2018) and the Global Detention Project reportHarm Reduction in Immigration Detention (2018).

Posted by mp in Immigration detention, Oversight bodies, UNCAT

UN Committee on Migrant Workers – Draft General Comment No. 5 on Migrants’ Right to Liberty and Freedom from Arbitrary Detention

Migrant workers and members of their families often suffer severe human rights abuses with respect to immigration control measures, in particular those who are undocumented, including mandatory detention, being detained under punitive conditions, separating families, detaining children, barriers in accessing legal remedies, inhumane conditions, and lack of access to necessary services, in particular for vulnerable categories of migrants.

The main goal of General Comment No. 5 is to provide authoritative guidance to States in implementing their obligations under the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families regarding the right to liberty and freedom from arbitrary detention of all migrant workers and members of their families.  This general comment will also assist States in implementing relevant commitments contained in the Global Compact on Migration, as well as assist other stakeholders with advocacy initiatives in this context. The general comment will focus, inter alia, on the following:

…   
If detention is exceptionally resorted to consistent with the above standards, independent and regular monitoring of the detention conditions should be ensured in practice.

(Please see the original Concept Note for the full list of issues).

Excerpt from CMW Draft General Comment No.5 Concept Note and Call for Inputs, available here.

Even though Canada is neither a State Party to the Migrants Convention nor the OPCAT, Canadian human rights actors can still submit their comments on this important issue.

Stakeholders are invited to provide inputs to this initiative through a questionnaire by 1 April 2019, which can be found in English here. Submissions can be made in English, French or Spanish.

CMW
No title by David Johnson (2009).

Learn more about the Global Compact for Migration, adopted on 10 December 2018 at the intergovernmental conference held in Marrakesh, Morocco.

Read the UN Committee against Torture’s recommendations on immigration detention in Canada from 7 December 2018.

Explore the University of Oxford’s Faculty of Law Border Criminologies paper on monitoring immigration detention.

Find other detention monitoring tools and guides under Other Resources.

Posted by mp

COPCAT Shorts: Global Compact for Migration

Objective 13: Use immigration detention only as a measure of last resort and work towards alternatives

29. We commit to ensure that any detention in the context of international migration follows due process, is non-arbitrary, is based on law, necessity, proportionality and individual assessments, is carried out by authorized officials and is for the shortest possible period of time, irrespective of whether detention occurs at the moment of entry, in transit or in proceedings of return, and regardless of the type of place where the detention occurs. We further commit to prioritize non-custodial alternatives to detention that are in line with international law, and to take a human rights-based approach to any detention of migrants, using detention as a measure of last resort only.

To realize this commitment, we will draw from the following actions:

(a) Use existing relevant human rights mechanisms to improve independent monitoring of migrant detention, ensuring that it is a measure of last resort, that human rights violations do not occur, and that States promote, implement and expand alternatives to detention, favouring non-custodial measures and community-based care arrangements, especially in the case of families and children;

Global Compact
UN Photo – Detail from Conference on Global Compact on Migration, 11 December 2018.

Read the Global Compact for Migration in English, adopted on 10 December at the intergovernmental conference held in Marrakesh, Morocco.

Read the UN Committee against Torture’s recommendations on immigration detention in Canada from 7 December 2018.

Posted by mp in Immigration detention, Oversight bodies, UNCAT

COPCAT en bref: Pacte mondial pour des migrations

Objectif 13 : Ne recourir au placement en rétention administrative des migrants qu’en dernier ressort et chercher des solutions de rechange

29. Nous nous engageons à ce que le placement en rétention administrative dans le contexte des migrations internationales fasse suite à une procédure régulière, ne soit pas arbitraire, soit fondé sur le droit, dans le respect des principes de nécessité et de proportionnalité, et sur les conclusions d’évaluations individuelles, et soit opéré par des fonctionnaires autorisés et pour la période la plus courte possible, qu ’il intervienne lors de l’entrée sur le territoire, lors du transit ou dans le cadre d’une procédure de retour, et quel que soit le type de centre de rétention administrative utilisé. Nous nous engageons en outre à donner la priorité aux solutions non privatives de liberté qui sont conformes au droit international et à adopter une approche fondée sur les droits de l’homme en ce qui concerne la rétention administrative des migrants, en ne recourant à cette dernière qu’en dernier recours.

Afin de tenir ces engagements, nous puiserons dans les actions suivantes:

a) Utiliser les mécanismes de défense des droits de l’homme existants pour assurer un meilleur suivi indépendant de la rétention administrative des migrants, en veillant à ce que celle-ci ne soit utilisée qu’en dernier recours, qu’elle ne donne lieu à aucune violation des droits de l’homme et que les États encouragent, appliquent et cherchent d’autres solutions, en privilégiant les mesures non privatives de liberté et la prise en charge communautaire, en particulier pour les familles et les enfants;

Global Compact
UN Photo – Detail from Conference on Global Compact on Migration, 11 December 2018.

Lire le Pacte mondial pour des migrations en français, adopté le 10 décembre à Marrakech au Maroc.

Lire les recommandations du Comité des Nations unies contre la torture sur la détention d’immigration au Canada, publiées le 7 décembre 2018.

Posted by mp in Immigration detention, Independent detention monitors