Immigration Matters

Sukhram Ramkissoon

Judge orders Romanian family to be released from detention

A Romanian family – a husband and wife and two young children –   got a big surprise when they arrived in Canada on June 5 last.

While they were en route to Canada, the Canadian immigration policy with respect to Romanian visitors changed.

The new policy which become enforceable the same day on which they arrived, required Romanians to obtain  visas when traveling to  Canada with non-biometric passports which the family did not have.

And on their arrival, a removal order was issued against them and they were required to leave the same evening.

But the husband refused to leave Canada and was arrested and detained.  His wife and their children were released on “humanitarian” grounds and were told to return for an interview on June 12 last.

During this interview, the wife said that she had no intention of leaving Canada and that even if her plane ticket was bought, she would not leave because she “came for a better future and she is going to stay and die in Canada.” She repeated this in reply to multiple questions by the immigration officer.

After the interview, she was arrested and only after being detained, she was informed of her right to consult a lawyer.

She stated she had no friend or family who could care for the children and did not want any organization to do so.  She wanted her children to stay with her.

On June 14 last, it was decided at her 48-hour detention that she would not be released.  A second review was to be held on June 21 last.

At this review, it was again ordered that she and her children remain in the custody of  the Canada Border Services Agency (CBSA) .A third review was to be held in 30 days.

The Immigration Division (ID) Member considered her a flight risk and refused a proposal of a bond of $2000. A third review was scheduled but her removal was also scheduled for July 9 last.

The wife then sought an urgent motion in the Federal Court, dated June 28, to obtain an interlocutory mandatory injunction – a request for her immediate release from detention and the release of her two children, ages 6 and 4.  This application was based on her pending application for judicial review on the removal orders issued to herself and family members.

In granting the mandatory interlocutory injunction, the judge, in his reasons, stated as follows:

“The Court has a number of concerns regarding the June 21 Decision. It finds that the Board was not alert and sensitive to the best interest of the children [BIOC] concerning their being housed with the mother while in detention. It also failed to consider the probative value of the “rote-like” answers provided by the wife to the officer on June 12, which constituted the sole basis for continuing her detention. The wife’s capacity for flight is a consideration that the Court concludes should have been considered, as it appears limited without the husband.”

The judge also noted that the Board is aware of the need to consider the humanitarian and compassionate concerns involving the BIOC when their decisions adversely affect the children.

The National Directive for the detention or housing of minors  which the  CBSA  developed for its operational use, addresses this issue. It states in section 60 of the Immigration and Refugee Protection Act that the detention of a minor must be a measure of last resort, taking into account other applicable grounds and criteria, including the best interests of the child.

In 2016, the Federal Court ruled that the interest of a detained minor is a factor that can be taken in the decision making with respect to the  detaining or maintaining detention of a parent.  This factor can also be weighed with other mandatory factors for detaining or maintaining detention of the parent.

The National Directive also addresses the United Nations Convention on the Rights of the Child (CRC) to which Canada is a signatory.  It states that the best interest of a child shall be a primary consideration in all state actions concerning children.

The Court concluded that based on the above mentioned factors, the Immigration Division likely committed a reviewable error by not appropriately considering the best interests of the children and ordered the family be released from detention.

Clearly, justice was served in this case.

SUKHRAM  RAMKISSOON  is  member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Toronto, Ontario. Phone 416 789 5756.