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Canada is releasing immigration detainees at ‘unprecedented’ rates amid COVID-19 fears

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WATCH: Undocumented and migrant workers and foreign students from across Canada have spoken out, calling on the prime minister to "fill the gaps" that exclude them from the Canada Emergency Response Benefit.

The number of immigration detainees held in provincial jails and immigration holding centres across Canada has dropped by more than half since COVID-19 was declared a global pandemic, according to data provided to Global News.

And recent decisions from the Immigration and Refugee Board of Canada (IRB), the administrative tribunal that presides over immigration refugee matters, show how fears over COVID-19 are playing a significant role in some rulings to release immigration detainees.

On March 17, there were 353 immigration detainees held in provincial jails and immigration holding centres across Canada, according to data from the Canada Border Services Agency (CBSA).

By April 19, that number dropped by more than half to 147 detainees, 117 of whom were being held in provincial jails. The remaining 30 were held in one of Canada’s three immigration holding centres located in Toronto, Laval, Que., and Surrey, B.C.

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READ MORE: The number of detainees held in Canada’s immigration holding centres is declining amid COVID-19 fears

“We would never normally see such a dramatic drop in detention (detainees) in such a short period of time. That’s unprecedented,” said Swathi Sekhar, an immigration and refugee lawyer based in Toronto. 

A number of legal and advocacy groups have been calling for the release of immigration detainees and people held in jails and prisons who are not deemed risks to public safety due to the rising number of COVID-19 cases in these facilities, and the conditions there that make it difficult to isolate and control the spread of infection.

The majority of the immigration detainees held in jails are located in Ontario, which has been grappling with COVID-19 cases in its correctional facilities. Thousands of inmate in Ontario jails have been released in recent weeks as the province grapples with the outbreak.

Thirty-three of the 117 immigration detainees held in provincial jails as of April 19 were detained at the Maplehurst Correctional Complex in Milton, a combined maximum-security jail for remanded prisoners and a medium/maximum-security jail for convicted offenders serving sentences of less than two years.

READ MORE: COVID-19 not a ‘get-out-of-jail-free card,’ B.C. judge rules

Foreign nationals and permanent residents can be detained — sometimes indefinitely — by CBSA officers if the person is deemed unlikely to appear for an immigration proceeding like a hearing, if the person is deemed a threat to public safety or if the person’s identity is under question. Most detainees are held on the grounds that they are unlikely to appear for proceedings or because of questions over their identity.

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Immigration detainees are held on administrative and not criminal grounds like a typical jail or prison inmate. Immigration detainees can be held in one of Canada’s three immigration holding centres, which resemble medium-security prisons, or in provincial jails across the country, depending on the circumstances of their case, or if there is no immigration holding centre in that part of the country.

Last month, the Canadian government enacted an emergency order under the Quarantine Act that prohibits entry by individuals into Canada for the purpose of claiming refugee protection.

This new order has reduced the number (of) asylum seekers remaining in Canada or being detained,” a CBSA spokesperson said in an email. “Also, since a lot of our admissions into (immigration holding centres) or provincial facilities are directly related to traveller volumes, it is not unexpected to see the overall number of admissions go down.”

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“CBSA officers are asked to focus efforts to explore all viable alternatives to detention for all cases, where there is no public safety concern.”

READ MORE: Coronavirus fears spark calls for migrants to be released from B.C. holding centre

Recent detention review decisions provided to Global News from the IRB show how COVID-19 is being factored into determining whether or not to release someone from immigration detention. 

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One IRB decision from April 3 involves a Colombian man who had been detained in the Toronto immigration holding centre since Jan. 23 because he was deemed a danger to the public and unlikely to appear for his removal from Canada to Colombia. However, he was released on a bond in large part due to the risk of being exposed to COVID-19 while in detention. He was ordered to abide by a number of strict conditions as part of his release.

The IRB decision-maker, Jacqueline Swaisland, stated that the man, Angelo Rincon, has a history of non-compliance with immigration laws “at least in three countries” and has also violated criminal laws in Canada and the United States. This includes a conviction for possessing a controlled substance for the purpose of selling, another conviction related to a number of break-and-enters in the Greater Toronto Area last year and possession of property obtained by crime.

The decision-maker said that while Rincon was deemed a danger to the public due to his criminal history, “I find the danger that you pose to be at the low end of the spectrum” because of the limited sentences he had received for his convictions, his “stated remorse under sworn testimony” and “the fact that there has been no violence in the commission of any of the offences you have been involved in…”  

COVID-19: Preventing prison outbreaks in Canada
COVID-19: Preventing prison outbreaks in Canada
In determining whether to release Rincon from detention, Swaisland stated that Rincon had already been held in detention for more than two months, something that weighs in his favour, and “with respect to anticipated length of detention [it’s] agreed by all parties that at this point it is unknown because of the COVID-19 pandemic.” 
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“And it could be long given Canada is currently not enforcing removals and given that Columbia is not permitting the repatriation of even (its) own nationals and it is not clear how long that will go on for given the current COVID-19 pandemic,” Swaisland stated.

Last month, the CBSA temporarily halted deportations of people whose refugee or immigration claims had been rejected, with the exception of serious criminal cases that will be evaluated on a case-by-case basis. 

The decision goes on to note that Rincon’s counsel provided “significant documentation” on the risks that someone in detention faces and his own fears associated with his potential exposure to the virus in the facility due to an underlying condition. TVO reported last month that an employee at the Toronto holding centre had contracted COVID-19 and had been in self-isolation. 

“I find that the risk that you face are not at the same level of detainees in correctional facilities (particularly) given that there is such a limited number of the detainees currently being housed at the immigration holding centre, 15 as of today and given the significant steps that are being taken to reduce the risks to individuals being detained at the holding centre currently,” Rincon’s decision states. 

“(But) even though the immigration holding centre is taking significant precautions, they are not perfect. And you still have a high risk of exposure and significant restrictions on your ability to self-isolate in a manner that the documentary evidence seems to suggest that is required with this virus.”

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Correctional Service of Canada takes steps to prevent COVID-19 entering prisons
Correctional Service of Canada takes steps to prevent COVID-19 entering prisons

COVID-19 is also cited in an IRB decision from March 30 involving a Chilean woman who had been detained at the Toronto immigration holding centre since March 17 because she was deemed unlikely to appear for her immigration proceedings. The decision states that the woman may be released from detention as long as she abides by a number of conditions, including living at a shelter and reporting regularly to the CBSA.

Her identity and some of the details of the decision are redacted, as she has a pending refugee claim, which is subject to privacy rules. The decision notes that the woman’s refugee claim is on hold for the time being, and proceedings will resume “once the pandemic is addressed and the Immigration and Refugee Board begins to hear and process claims again.”

“You are now waiting for your (refugee) hearing which under normal circumstances can be a long process and everything is delayed now due to the pandemic,” the decision-maker, Julia Huys, said to the woman.

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READ MORE: Judges release growing number accused of violent crimes due to COVID-19 fears

Huys goes on to describe the elevated risk of exposure to COVID-19 among detainees. 

“I am taking note that the conditions in the immigration holding centre may be better than provincial jail but I find only slightly,” Huys said.

“So detained people will come into contact with many others including detainees, other detainees, guards, staff, and movement in and out of people … from the immigration holding centre. And I am also taking very seriously the fact that there has now been a case of COVID-19 at the immigration holding centre with one of the staff.”

An IRB spokesperson said in an email to Global News that it’s “open to decision-makers to consider any relevant factors in determining whether detention is justified, including COVID-19 and its potential risks to detained individuals.” 

The IRB also noted that its immigration division is “entertaining requests from parties for early detention reviews, for example to consider alternatives where the person detained may have a vulnerability that places them at elevated risk from the virus or any cases with an alternative to detention.”

Questions about COVID-19? Here are some things you need to know:

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Health officials caution against all international travel. Returning travellers are legally obligated to self-isolate for 14 days, beginning March 26, in case they develop symptoms and to prevent spreading the virus to others. Some provinces and territories have also implemented additional recommendations or enforcement measures to ensure those returning to the area self-isolate.

Symptoms can include fever, cough and difficulty breathing — very similar to a cold or flu. Some people can develop a more severe illness. People most at risk of this include older adults and people with severe chronic medical conditions like heart, lung or kidney disease. If you develop symptoms, contact public health authorities.

To prevent the virus from spreading, experts recommend frequent handwashing and coughing into your sleeve. They also recommend minimizing contact with others, staying home as much as possible and maintaining a distance of two metres from other people if you go out.

For full COVID-19 coverage from Global News, click here.