Canada: Refugee Children should not be Detained
"Mohammad" arrived at the Canada-US at Fort Erie in early January. He is a 16 year old boy from Syria who came to Canada looking for protection. It is reported that he was immediately detained and held in isolation in an immigration holding centre in Toronto for three weeks. Canada Border Services Agency (CBSA) has ordered that he be deported back to the United States. According to the Canada-US ‘Safe Third Country Agreement’ a refugee must make a refugee claim in the first country in which they arrive; either Canada or the United States. There is an exception to this agreement for unaccompanied minors, but the Canadian officials decided the exception did not apply in Mohammad’s case.
It’s hard to understand why the CBSA thought it was appropriate to isolate a child in detention for three weeks. Each year approximately 250 children are formally detained in Canada for immigration purposes. Most of these children are detained with their parents. Most are detained for only a few days. There are egregious cases where some children have been held in immigration detention for 3 months to 2 years. The impact of detention on mental health has been well documented. A 2013 study in Canada found a third of immigration detainees had clinical post-traumatic-stress disorder after an average 31 days in detention.
Canada’s Immigration Act 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 CBSA officials who make decisions about who should be detained specifies that “the detention of minor children is to be avoided.”
Canada is also bound by international conventions including the UN Convention on the Rights of the Child. This convention states that “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”
Canadian detention practices surrounding minors – accompanied or not – has been and continues to be problematic.
The UN Committee on the Rights of the Child has previously noted problems with respect to the detention of refugee and immigrant children in Canada, encouraging Canada to ensure that children’s best interests be a “primary consideration” when a child is detained.
Last year the UN examined Canada’s compliance with the International Covenant on Political and Civil Rights and recommended that Canada refrain from detaining irregular migrants for an indefinite period of time; ensure that detention is used as a measure of last resort; that a reasonable time limit for detention is set, and that non-custodial measures and alternatives to detention are made available to persons in immigration detention.
There are no provisions in Canadian law for independent monitoring of places of immigration detention. Canada has not signed the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for independent monitoring of detention facilities by the UN, and there is no independent ombudsperson to whom immigration detainees can complain about the conditions of their confinement.
Now is the time for Canada to implement the recommendations of the UN Human Rights Committee, sign the Optional Protocol and provide a mechanism investigate complaints of individuals who are held in CBSA custody.
Mohammad’s lawyers are fighting for Mohammad to remain in Canada and have access to the Immigration and Refugee Board where his claim for refugee protection can be heard. They are appealing to the Minister of Immigration, Refugees and Citizenship, John McCallum, to intervene on Mohammad’s behalf.
This never should have happened. A generous interpretation of Canadian law and our response to the Syrian refugee crisis should have dictated a common sense response to Mohammad when he arrived at the Canadian border crossing. He should have been allowed to enter the country under the exception to the Safe Third Country Agreement, and immediately be referred to the Immigration and Refugee Board. Mohammad should not have been detained in isolation for three weeks in an immigration holding centre. Canada must do better for refugee children and all immigration detainees.
For More Information
Toronto Star: Syrian Teen Detained in Toronto
UN Human Rights Committee Concluding Observations ICCPR