This burgeoning research on immigration detention grew in part out of an observation PhD candidate Molly Joeck made shortly after COVID-19 measures were first introduced in Canada. Joeck maintains a full-time immigration and refugee law practice in addition to her graduate work, and she started hearing accounts from other Vancouver-based lawyers of immigration detainees being released from detention on the basis of the risk posed by COVID-19. At the time, this was unprecedented in the adjudicative practice of the Immigration Division of the Immigration and Refugee Board, the administrative tribunal tasked with overseeing immigration detention in Canada.
In late April 2020, Joeck appeared before the Immigration Division herself, representing a client in his 50s who was, like all detainees, unable to social distance effectively from a prison cell - and was therefore terrified that he would contract COVID-19. Joeck argued that her client should be released from detention to minimize his risk of infection. “I was surprised to note that the Member was open to considering release on the basis that the conditions of my client’s detention – namely, his risk of exposure to COVID-19 – put him at risk”, explained Joeck. “This was a noticeable shift from prior practice. Previously, conditions of detention had been considered outside the jurisdiction of the Immigration Division – and in my view, COVID-19 was nothing if not a condition of detention.”
COVID-19 has created unfathomable risk and devastating loss for migrants across the globe. But in this small corner of the world, in this small set of cases, we saw the law develop to extend a small measure of legal protection to detainees. In an unexpected way, COVID-19 may have inadvertently opened up progressive possibilities for the law governing immigration detention in Canada.
Under Canadian law, the Canada Border Services Agency has the power to detain migrants for various discretionary reasons. Migrants can be detained for indeterminate lengths of time, and are held either in dedicated immigration detention facilities or in correctional facilities, in penal conditions of confinement. While immigration detention is not subject to legislative time limits, it is regulated through periodic review by the Immigration Division. Detainees are entitled to a review hearing before the Immigration Division 48 hours after their initial detention, seven days after that, and then every 30 days after that. But these review hearings are limited in their scope. Specifically, pre-pandemic, the Immigration Division rarely, if ever, considered the conditions or location of detention as a basis for release.
Once the pandemic broke out, COVID-19 began to rapidly spread through correctional facilities and Immigration Holding Centers, and rather suddenly, the Immigration Division began to entertain arguments about COVID-19 and the risks it posed to detainees as a basis for ordering release.
“This shift was, from our perspective, unprecedented. So we set out to understand how this shift came about, to identify whether these were exceptional cases or signs of a systemic change, and to try to explain this from both a legal and a theoretical perspective”, noted Joeck.
“This became a pressing point of interest for us”, explains Efrat Arbel, Associate Professor at the Allard School of Law, whose research centers on immigration detention. “Part of the difficulty of working in this field is that most of the decisions issued by the Immigration Division are not made available to the public. From a research perspective, it becomes quite difficult to understand what is happening as it unfolds – particularly in extraordinary and fast-changing circumstances like those presented by the pandemic. Molly’s practice brought great insight here. She lives and breathes the day-to-day regulation of detention in her capacity as a lawyer, and was able to gain critical insight into these developments”, Dr. Arbel explained.
Arbel and Joeck embarked on the challenging task of locating as many detention decisions involving COVID-19 as they could. They located seventeen decisions where COVID-19 was raised as a factor justifying release from detention, all issued in the first two months of the pandemic. This sample represents decisions from two provinces: eleven of the decisions were issued in Ontario, and six were issued in British Columbia. Based on this dataset, they noticed a significant shift in practice. “Of the seventeen decisions we analyzed”, noted Arbel, “the Immigration Division explicitly recognized COVID-19 as a condition of detention in sixteen cases. Of those, the Immigration Division ordered release, at least in part on the basis of COVID-19, in eleven cases.”
I was surprised to note that the Member was open to considering release on the basis that the conditions of my client’s detention – namely, his risk of exposure to COVID-19 – put him at risk”, explained Joeck. “This was a noticeable shift from prior practice. Previously, conditions of detention had been considered outside the jurisdiction of the Immigration Division – and in my view, COVID-19 was nothing if not a condition of detention.
Arbel went on to explain the significance of this change: “The previous approach was one which put the individual detainees in untenable positions. The inability to argue conditions of detention was disempowering and produced trauma and disassociation. With the advent of COVID-19, detainees were permitted to argue the conditions of their own confinement before the administrative body tasked with overseeing their detention – which renders those conditions actionable, and therefore legally meaningful.”
“This shift also suggests the possibility of a broader paradigm shift in the law that governs detention reviews, and the familiar ‘us-them’ divide that underpins so much of the law in this field”, continued Arbel. “In our dataset, the line that distinguishes ‘us’ from ‘them’ seems to have blurred, and the location of risk seems to have shifted in relation to that line. For the first time, one of the principal concerns of the Immigration Division was, instead of protecting the public from the detainee, protecting the public by protecting the detainee.”
“We also identified a discernible shift in the legal understanding of ‘danger’ and ‘risk’”, said Joeck. “Instead of an exclusive focus on the detainee as “dangerous” or “risky”, the Immigration Division demonstrated a concern for protecting the detainee from the risk posed by the virus as a way of safeguarding public health. At least temporarily, the detainee seems to have been folded into the ‘us’ – the newly formed, newly vulnerable ‘us’ – so as to be protected from the risky, unpredictable virus”.
What will happen as the pandemic continues – and in a post-COVID 19 world – remains unknown. But Arbel and Joeck are optimistic. “We view this shift as a silver lining of sorts”, said Arbel. “COVID-19 has created unfathomable risk and devastating loss for migrants across the globe. But in this small corner of the world, in this small set of cases, we saw the law develop to extend a small measure of legal protection to detainees. In an unexpected way, COVID-19 may have inadvertently opened up progressive possibilities for the law governing immigration detention in Canada”.
Arbel and Joeck have published the results of their study as a chapter in the highly anticipated Research Handbook on the Law and Politics of Migration, edited by Professor Catherine Dauvergne, (2021: Edward Elgar Press), which is scheduled to be released in April 2021.
They have also secured two prestigious grants to continue their research: a Franklin Lew Innovation Grant, and a COVID-19 Wall Solutions Grant, awarded by the Peter Wall Institute for Advanced Studies. “We have had the great fortune of hiring two very bright and dedicated student researchers to assist with this project, Simran Hothi and Karen Jantzen. We look forward to working with them to continue tracking the law as it develops”, Joeck concludes.
Learn more about the research by reading Arbel and Joeck’s article here, or their blog post on Oxford University’s Border Criminologies website.
