An End to Immigration Dentention of Children?

On 6 November 2017, Public Safety Minister Ralph Goodale released new directions aimed to keep children out of Canada’s immigration detention system.

“The key objective of the Ministerial Direction is to – as much as humanly possible – keep children out of detention, and keep families together. The Ministerial Direction makes it clear that the Best Interests of the Child must be given primary consideration. This will be achieved by actively and continuously seeking alternatives to detention when unconditional release is inappropriate.”

The directive is welcome; detention is never in the best interests of children and it is shocking that children are detained for immigration purposes in Canada, even for short periods of time.

Amnesty International and many other human rights groups in Canada have actively campaigned to keep children out of immigration detention. Several thousand Amnesty International members and supporters signed petitions and called on the Minister to stop detaining children for immigration purposes.

Our action coincided with a report from the University of Toronto International Human Rights Program, No Life for a Child, A Roadmap to End Immigration Detention of Children and Family Separation, which revealed violations against children which have been taking place in Canada.

Immigration detention facilities in Canada resemble medium-security prisons. There are strict rules, regimented daily routines, and significant restrictions on privacy and liberty. Children in detention are under constant and invasive surveillance, they have inadequate access to education, insufficient opportunity for recreation and play, and receive poor nutrition.

Even when children are not legally required to be in detention, their parents face a daunting choice: either they allow their child to be separated from them, or the child can remain with them in detention. Since both of these options are harmful to children, parents are deprived of the opportunity to meaningfully care for their children. Aggravating this scenario is the fact that there is no limit to the length a parent may be held in detention. This means children can live in detention, or be separated from their parents, for years.

Canada has come under harsh criticism from the United Nations for its immigration detention regime with respect to children where children enter a Kafkaesque world of prison conditions, uncertain lengths of detention, and separation from their parents, that robs them of the opportunity to develop normally.

In November 2017 the Committee on the Rights of the Child (CRC Committee) and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW Committee) jointly adopted two general comments on the human rights of children in situations of international migration.

Both Committees have repeatedly affirmed that children should never be detained for reasons related to their or their parents’ migration status and States should expeditiously and completely cease or eradicate the immigration detention of children. Any kind of child immigration detention should be forbidden by law and such prohibition should be fully implemented in practice.

Canada’s Immigration Act already states that in the case of minors (children under 18 years of age) the best interests of a child must be taken into account and children are only to be detained as a last resort. The operational manual used by the Canadian Border Services Agency (CBSA) officials who make decisions about who should be detained also specifies that “the detention of minor children is to be avoided.”

The Canadian Council for Refugees has called for legislative reform as a means to end to the detention of children, noting that the current wording of “last resort” in the Immigration and Refugee Protection Act is outdated and vague and has proven ineffective. Many children, including refugee children, have been detained as a “last resort” even though there are no compelling grounds to detain and alternatives exist.

While Minister Goodale’s new Directive is welcome, only time will tell if there is meaning behind the words. Canada already has laws and practices in place which suggest that children should not be detained. Amnesty International and other human rights groups in Canada will continue to monitor the practices of CBSA in order to determine if the best interests of children are taken into consideration; that children are not detained, families are kept together and alternatives to detention are found for all.