There is a gap in the deportation system, and it is being filled with indefinite detention. But is this acceptable? A recent decision from the Federal Court says yes, the gap is a misapplication of an appropriate, acceptable law. Alvin Brown spent five years in immigration detention before his deportation order could successfully be carried out.
Once deportation has been ordered, immigration detention can be ordered to keep the individual in custody until the date of deportation. Such detention address the evil of individuals not showing up on their deportation dates, where CBSA estimates that there are over 40,000 such individuals in Canada. In response to this, interim detention can be ordered to keep individuals in custody and ensure that they are in fact deported.
However, this is not always the linear progression. The problem arises when individuals have been given a deportation order, yet do not meet the formal, legal requirements for deportation, often because they lack formal identity papers for their former countries to repatriate them. What results in this situation is a state of limbo, indefinite detention.
In order to deport an individual there needs to be a receiving country, which is supposed to be the individual's place of birth. However, some people do not have adequate formal documentation to satisfy a recipient government of their nationality or birth place. Recipient countries will not accept such individuals without confirmation of their identity. An individual may lack adequate identification for a variety of reasons, such as a lack of record of their birth, or leaving their birth country at a young age without bringing any documentation, posing an issue of accuracy of identification.
Reviews of prolonged detention are to occur every 30 days, but without any movement on the identification of the nationalities of these individuals, such reviews maintain the detention status.
While immigration detention is meant as a mechanism to facilitate deportation, in these situations it can become vexatious and quasi-punitive. Some individuals frustrate this process as they refuse to sign their identity paperwork, such as in the case of Michael Mvongo. But others were seemingly innocent, as they happen to be born in countries that are refusing to recognize their births, such as in the cases of Alvin Brown, Ebrahim Toure, and Kashif Ali.
The UN has recommended a 90 day cap for detainees. Other countries have set this as the maximum period of immigration detention, but Canada has not. In 2016 there were multiple reports of hunger strikes by detainees holding out for such a cap, with three of them lasting over two weeks. As of yet, the potential for unlimited detention can persist in Canada.
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