Much like our Western counterparts, Canada has entered into a new era where the norm is to unfortunately treat many immigrants and refugees as “interlopers, illegals, threats to security, or criminals” (Gros & van Groll, 2015, p. 13). Referred to migration experts as the criminalization of immigration—or ‘crimmigration’—this new norm blurs the borders between immigration law, migration management, criminal law and crime control. This ongoing process is seen by some scholars as quite sinister, as crimmigration logics are highly centred upon ill-perceived precautionary philosophies and illusory presumptions about migrants. In effect, such logics are becoming more normative, infiltrating the politics of cities and hindering the lives of immigrants and refugees attempting to settle in Canada (c.f. Molnar & Silverman, 2016).
Expanding carceral regimes and migration controlling measures and practices have led to the rise in immigration detention, and crimmigration logics expand the discretionary powers of administrative tribunals regulating migration governance. Every year, thousands of migrants who are not serving a criminal sentence are, in effect, imprisoned. While some migrants are detained because of past criminality, the majority of the immigration detainee group are not. Some of these people are extremely vulnerable with varying immigration statuses, such as asylum-seekers, minors, pregnant women, victims of trauma or torture, and persons with physical and/or mental disabilities (c.f. Gros & van Groll, 2015).
However, nowhere is the crimmigration reality more stark than in the area of immigration detention. Migrants can be detained for several reasons, such as lack of documents, and unable to confirm their identity; ‘irregular arrival’ to the country via smugglers; labelled a ‘flight risk’, or as a ‘danger’ to the Canadian public (Kanji, 2016). Canada’s Immigration and Refugee Protection Act (S.C. 2001, c.27), federal legislation which deals with the protection of immigrants and refugees, is anything but clear and definitive for both immigrant and refugee admissibility into the country and the protection of migrants and refugees while held within Canada’s immigration detention centres (Ross, 2014). Because immigration law is a civil domain, rights protections are not a predominant concern for immigrants as we see afforded to criminal suspects; simply put, there are no readings of one’s rights, no direct or automatic access to legal counsel (or even a telephone in some cases), and no prompt meetings to explain how to apply for release (Silverman & Nethery, 2015, cited in Molnar & Silverman, 2016).
Precautionary and presumptive logics have influenced the IRPA to such an extent that the legislation, like the Charter, could be argued as becoming another legitimate legal technology of surveillance which makes visible and governs immigrants and refugees (c.f. Jochelson et al., 2014; Jochelson & Doerksen, 2017). Indeed, migrants attempting to make Canada their new home have seen an increased difficulty in the post-9/11 era, and these discretionary administrative practices (based upon fear and suspicion of the Other) clearly erode civil liberties and jeopardize the rights of those immigrants detained.
Of course, Canada is entitled to detain (at least briefly) persons who are reasonably suspected of posing a risk to the country’s safety and security. However, there must be purpose in the detention of migrants, based upon specific factual and empirical context. Too often has been the case in the West that migrant detention is somehow a “national prerogative that can be automatically exercised” without any real regard for fairness and accountability (Gros & van Groll, 2015, p. 1).
Fortunately, the detention of immigrants and their potential subjection to deportation has been problematized through a plethora of legal challenges, and there have been exemplary lawyers and civil liberties’ associations taking up the call to resist ill-perceived, precautionary philosophies driving crimmigration. However, resisting is no easy task. Legal activism and reform must progress onward to combat the presumptive and precautionary logics at play within the IRPA and Canada’s immigration policies. More than ever, the procedural wings of state intervention into the lives of immigrants and refugees warrants further investigation. The bureaucratization of human rights unfortunately arises out of a philosophy which mobilizes fear-based and surveillant logics. If not reversed, the wrongfulness of routine migrant detention will be much more than an issue of illegality; crimmigration will diminish the ability of the state to act as a force of good, a good which reflects the best about us, for the foreseeable future.
This refereed blog is also cross-posted at the Migration Law Research Cluster web-page.
Gros, H. & van Groll, P. (2015). “We Have No Rights”: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada. International Human Rights Program: University of Toronto, Faculty of Law.
Jochelson, R. & Doerksen, M. (2017). “The Supreme Court Presents: The Surveillant Charter and the Judicial Creation of Police Powers in Canada.” Pp. 75-97 In National Security, Surveillance, and Terror: Canadian and Australian Sovereignty Compared, edited by R. Lippert, I. Warren, K. Walby, and D. Palmer. London: Palgrave-MacMillan Press.
Jochelson, R., Kramar, K., & Doerksen, M. (2014). The Disappearance of Criminal Law: Police Powers and the Supreme Court. Winnipeg and Halifax: Fernwood Publishing.
Kanji, A. “These borders kill: Canada’s lethal immigration system.” Rabble.ca: March 30. Available at: http://rabble.ca/news/2016/03/these-borders-kill-canadas-lethal-immigration-system.
Molnar, P. & Silverman, S. J. (2016). “Cracks Where the Light Gets in: Recent Legal Breakthroughs in Detention and Crimmigration in Canada.” MetroPolitics.eu: December 6th. Available at: http://www.metropolitiques.eu/Cracks-Where-the-Light-Gets-in.html.
Ross, O. (2014). “In Canada’s immigration law, anyone can be a terrorist.” The Star: April 27.
Immigration and Refugee Protection Act (S.C. 2001, c.27).