What Is an Immigration Detention Review?
When the Canada Border Services Agency (CBSA) arrests and detains a foreign national or permanent resident under the Immigration and Refugee Protection Act (IRPA), Canadian law requires the detention to be reviewed by an independent member of the Immigration Division (ID) of the Immigration and Refugee Board.
The ID member must independently assess whether the grounds for detention are established and, if so, whether continued detention is justified — or whether the person can be released with or without conditions. The burden of proof in detention reviews is nuanced: once CBSA establishes a ground for detention, the onus shifts to the detained person to show why release is appropriate.
You Have the Right to Representation: Every person detained under IRPA has the right to be represented by a paralegal or lawyer at their detention review. Having skilled representation at these hearings can make a critical difference — the evidence presented and arguments made at each hearing carry forward to every subsequent review.
Grounds for Immigration Detention
CBSA must establish one or more of the following grounds to justify detention. At the review, we challenge whether the grounds are actually established, and argue that the circumstances warrant release with appropriate conditions.
1. Flight Risk
CBSA alleges the person is unlikely to appear for immigration proceedings or removal. This is the most commonly cited ground. We challenge this by demonstrating community ties, family in Canada, stable residence, and a history of compliance — and by proposing bondspersons and conditions that address the risk.
2. Danger to the Public
CBSA alleges the person poses a danger to the public, typically based on criminal history or conduct. We review the actual evidence of dangerousness, challenge assessments of risk, and present rehabilitation evidence, support letters, and program participation to counter this ground.
3. Identity Not Established
The person has not provided satisfactory documentation to establish their identity to CBSA’s satisfaction. We work with clients to obtain identity documents, present alternative means of establishing identity, and demonstrate good-faith cooperation with the process.
Rights of Every Person Detained Under IRPA
Right to a Detention Review
Every person detained under IRPA has an automatic right to a detention review before an independent ID member — within 48 hours of arrest, again within 7 days, and every 30 days thereafter. This right cannot be waived by CBSA.
Right to Know the Reasons
You have the right to know the reasons CBSA is relying on to justify your detention. CBSA must provide you with its detention report, and the ID member must give reasons for their decision to continue or order release.
Right to Representation
You have the right to be represented by a licensed paralegal or lawyer at your detention review. You also have the right to retain counsel of your choice and to have adequate time to consult with them before the hearing.
Right to Contact a Lawyer
Upon detention, you have the immediate right to be informed of your right to retain and instruct counsel and to have a reasonable opportunity to do so. CBSA must facilitate this contact promptly.
Right to an Interpreter
If you do not speak or understand English or French, you have the right to have your detention review conducted through a qualified interpreter provided by the IRB at no cost to you.
Consular Notification
The IRB provides interpreters for your hearing at no cost. You have the right to have the proceedings conducted in your language. If you require an interpreter for your consultations with us, please let us know when booking.