There is nothing new about North America’s cruel state policies and practices against immigrants and asylum seekers. Having committed genocide against the original inhabitants of the land, the settler colonists have been on the constant lookout for exploitable laborers to pick the cotton, build the railways, and farm the prairies. While much has improved in these past centuries of slave revolts and workers movements, and although migrants face different levels of abuse depending on their wealth, gender and background, exploitation has always been ensured by force of law. The other constant is racism, for without a body of ideas that denigrate the outsider, such cruelty could not be sustained for very long without facing fierce resistance.

In dealing with migrants, the main weapons of the current legal system are incarceration and deportation. The Immigration and Refugee Protection Act (IRPA) became law in 2002 as part of the intensification of the state-backed xenophobia that has been integral to the “war on terror”. The Act marked the escalation in the rejection of refugee claimants and the detention, mainly of Arab and Muslim men, for security reasons. Under special circumstances, the new laws actually allow the state to incarcerate people without informing them of the charges or evidence against them. But even in the most mundane of immigrant or refugee cases we find the justice system replete with injustice. In what follows I share some of the disgusting policies and practices followed in the incarceration of immigrants and refugees.

The Law

People jailed under immigration laws are either arrested at the border or inland. Under IRPA, the state has given itself authority to arrest immigrants or refugee claimants under three conditions. The first condition arises for migrants unable to prove their identity with “valid” identification papers. It is often the case that many less wealthy states do not provide documentation that is fancy enough for the liking of Canadian border officials. In addition, many refugee claimants are not able to secure such documents before fleeing persecution.

The second justification for incarceration arises when an immigration officer suspects the person of being a flight risk, that is, that they might not show up to their deportation or next check-in with the authorities. Unfortunately, border stations aren’t well equipped with crystal balls, and so the official’s determination of who won’t show up is entirely discretionary and so largely arbitrary.

The third, and least used justification for arrest is if the official deems the person seeking entry to be a threat to public security.

In reality, incarcerations occur quite frequently for reasons far more diverse than the ones listed. We can attribute this to a “jail first, ask later” approach taken by immigration officials, who have the discretion to send people to prison based on any suspicions, regardless of how baseless they are. There are also financial benefits to incarceration from the perspective of the government, since no one leaves the jail without posting some sort of bail or bond unless they’re being deported.

The official’s decision to imprison happens after an interview, and misunderstandings frequently arise as a result of the officer’s inability to communicate in languages that are not official. Migrants are interrogated after long and arduous journeys, feeling tired and intimidated, particularly since the interviews are long and intense. Border officials will take detailed notes, and if there is a discrepancy between what is said in the interview and what is said in subsequent dealings with authorities, it counts against your credibility, and severely restricts your chances of getting out of detention and obtaining status.

Many people are arrested inland, including individuals who entered the country on student or tourist visas, people from countries without a visa requirement, those who have remained in Canada despite a failed refugee claim, and those who erroneously believe they have status, or otherwise managed to get into the country. Some of these arrests are the result of police raids in neighbourhoods and workplaces where they expect to find non-status people. The majority, however, were involved in some sort of minor traffic violation or domestic disturbance. Police routinely ask about the immigration status of those they detain, and report those without status.

The Jail

In Toronto, most people detained under immigration laws are incarcerated at the Heritage Inn. A private security company, the Corbel Management Group, runs the Inn. Most people there are either waiting for their identification documents, waiting for an assessment of risk they may face in the country to which they are being deported (known as a “Pre-Removal Risk Assessment”), waiting to find a bondsperson to bail them out or waiting for identity documents from their country of origin. Any of these tasks can take months.

A detainee is entitled to an immigration bail hearing within 48 hours of arrest in front of a member of the Immigration and Refugee Board (IRB). If the Board Member decides that you must stay in prison, the next review is seven days later, and then every thirty days after that. The more detention reviews you’ve had, the higher the bail you’ll need to post if a judge does eventually allow your release. Bail amounts range from $1000 – $20,000 and are most often between $5000 – $15,000. It cannot be your own money, and it has to be in cash. The bondsperson also has to be a permanent resident or citizen. There is an increasing use of “performance bonds” which require the bondsperson to pay more money if bail conditions are not complied with.

There are no extensions on documents that must be submitted for the various types of applications. Immigration and refugee applications require a great deal of detail, such as every address you’ve lived at, and even experienced lawyers face difficulties fitting their clients into the esoteric definitions imposed by law. While imprisoned, people don’t have access to adequate legal or translation services to help them fill out these forms. As such, people can’t meet the deadlines, and even when they do, their applications lack the fluency and wizardry required to please immigration officials. Deportation is the most common result, often preceded by a long period of stressful waiting in the Inn.

The daily schedule, like that of any prison, is designed to break people’s spirits, often resulting in lethargy, irritability, and psychological damage (it drives people crazy). The same schedule is followed every day, involving scheduled walking and napping, and the same food is served daily: chicken with rotating rice, fries and mashed potatoes.

Entire families are commonly incarcerated at the Heritage Inn, though sometimes families are dispersed to other large prisons. Facilities are really terrible for children, who are deprived of schooling and have very little in the way of outdoor recreation. Facilities are even worse for infants, whose parents cannot obtain warm food mixtures or proper diapers for them.

The security guards usually have no experience dealing with children or people with such a high level of stress and anxiety. If any of the inmates at the Inn cause any problems for the prison guards, they are transferred to Metro West Detention Centre, causing their potential bail costs and conditions to increase. Earlier this year, however, inmates carried out a successful hunger strike in order to be allowed to use the telephones in their pods. What remains to be seen is whether collective action outside of the prison can also result in improvements in the conditions of prisoners, or even the elimination of the prison itself.

Change

Criminal law is more than adequate to provide for security concerns so incarceration should never be used as part of immigration laws. While questioning the legitimacy of the institutions of incarceration as a whole, there are many changes that we have to fight for. The current bail program, available for those without friends or family with the resources to bail them out, is horribly inadequate. Most applicants under the current program are denied, and have to face longer terms in the prison, and very stringent bail conditions when and if they ever do get the opportunity to be free. Clearly reforms are needed to keep poor people out of detention. In addition there also needs to be free translation and legal support given to people in the prison so that they can properly complete their forms, and deadline extensions must be provided for people held in jail. The living conditions in the Heritage Inn have to be improved, especially for children and infants incarcerated with their parents. Healthcare in the jail is very poor, and no psychiatric help is provided to deal with mental illness and the stress from imprisonment.