By: Nojan Kamoosi on
Kellie Leitch, Conservative MP for Simcoe — Grey, in an Facebook post on April 14, 2017
Under Canadian law, it’s not always possible to detain or remove irregular border crossers from Canada. Detention and removal can happen, but with many steps in between. It’s not so simple as “detain, question, and return.”FactsCan Score: Misleading
Kellie Leitch, Conservative MP and former leadership candidate for the federal party, said in a Facebook post last month, “the government’s inaction on the illegal migrant crisis is putting Canadians at risk. I will take immediate action to stop illegal migrants in their tracks.”
How would she stop them? Leitch said processing “illegal migrants” requires immigration officials to “detain, question, and return – it’s that simple. Anyone who tries to tell you differently is trying to pull one over on you.”
While we don’t typically check policy proposals for the future, Leitch implied the current rules are “that simple.” This check is about the rules in place now.
How does Canada process irregular border crossers?
Immigration law experts said it’s more complicated than “detain, question and return.” The removal process unfolds like this:
1) Question (the official term is “examine”);
2) Detain in some cases;
3) Serve with a removal order; and
4) Return to the home country if the individual is not successful in an asylum claim or pre-removal risk assessment.
There are nuances attached to each of these steps.
What is an “illegal migrant”?
The experts we spoke to pointed out that Leitch misused the term “illegal.” She did not respond to our requests for comment.
Not everyone who crosses the Canadian border at an unofficial spot is considered to have done so illegally. Whether or not their crossing is lawful depends on what happens next.
Audrey Macklin, a law professor at the University of Toronto, explained that an unofficial border crossing is first called “irregular.” A crossing may be deemed unlawful only after the person crossing is questioned by the Canadian Border Service Agency (CBSA). Through questioning, border officers determine if someone crossed illegally. This does not always happen. For example, officers won’t label crossings as unlawful if someone claims asylum (refugee status) in Canada.
This is an important point. Eligible asylum seekers aren’t considered to have crossed the border unlawfully. Under section 133 of the Immigration and Refugee Protection Act, a person who makes an asylum claim cannot be charged for certain offences, such as entering Canada from an unofficial spot without proper documents, while their claim is being decided or once their claim is successful.
The Canadian government has certain duties towards asylum seekers. When someone is found eligible by a CBSA officer to make an asylum claim, they are guaranteed a hearing at the Immigration and Refugee Board of Canada. The government must give refuge to anyone who is determined to be a “Convention refugee” or, for other reasons decided by the immigration minister, to require protection. A convention refugee is a person who is currently outside of their home country and is unable to return for fear of persecution because of factors like their race or religion.
Leitch is incorrect to use “illegal” as a blanket term for all irregular crossers. It implies that irregular crossers have done something illegal before being questioned, ignoring that some may be here to claim asylum and may be successful. (Macklin pointed out the oddity: “Apparently, the outcome is already known to Mrs. Leitch.”)
When can someone be detained?
Whether or not a crossing is deemed unlawful, the person will not always be detained. Certain conditions must be met.
According to CBSA rules, officers may only detain if:
- It is necessary to comprehensively question the individual;
- They believe the individual is unlikely to appear at their admissibility hearing or examination;
- They believe the individual is a danger to the public;
- They believe the individual is inadmissible (for example, if they’re a security threat, or due to past criminality or human rights violations); or
- The individual does not have identification.
The law provides other ways to detain someone: Irregular crossers may also be detained under the discretion of the immigration minister if they meet specific conditions. For example, if detaining is necessary in order to question the individual or if the individual is likely to be involved in organized crime, terrorism, or human trafficking.
While detention requires one of the conditions above, Leitch may have considered questioning as a form of detaining someone. Sharryn Aiken, an immigration law expert at Queen’s University, explained, “the examination itself is a form of quasi-detention.” But it’s a “short term” detention done “for the purposes of completing the examination,” she said.
When can someone be removed?
Prior to getting deported from Canada, the CBSA will serve someone with a removal order. These orders enforce the removal and return of an individual to another country.
Donald Galloway, an immigration law professor at the University of Victoria, explained these orders are conditional for anyone who has made an asylum claim. This means the orders will become operational only when (and if) a person’s asylum claim is denied, and if they do not appeal or their appeal was unsuccessful.
There is another option for a person to avoid removal orders. Those who are not eligible for asylum may be eligible for a pre-removal risk assessment (PRRA). A successful assessment provides someone with protected person status which allows them to stay in the country and apply for permanent residence.
Leitch’s claim is misleading. Under current Canadian law, while some irregular crossers can be detained, questioned and removed, others might not (and cannot) be detained or removed.
Could Leitch create a system which is “that simple”?
Not easily. Aiken pointed out that a significantly simplified system risks being unconstitutional and violating the UN Refugee Convention, an international agreement signed by Canada. Aiken explained Leitch’s “detain, question, and return” system would be contrary to the Charter requirement that refugee claimants get access to an oral hearing. An examination by a CBSA officer does not count as an oral hearing.
While Aiken doesn’t think Leitch’s plan is viable, she added there is “room to streamline some of the existing procedures.”