AN ARGUMENT AGAINST IMMIGRATION DETENTION OF …

AN ARGUMENT AGAINST IMMIGRATION DETENTION OF ASYLUM SEEKERS IN CANADA

by

Christine Alexandra Quigley

A thesis submitted in conformity with the requirements for the degree of Masters of Laws (LL.M.) Faculty of Law University of Toronto

? Copyright by Christine Alexandra Quigley 2013

An Argument against Immigration Detention of Asylum Seekers

Christine Alexandra Quigley Masters of Laws (LL.M.) Faculty of Law University of Toronto 2013

Abstract

This thesis will provide an argument against the use of immigration detention for asylum seekers. The thesis will critically analyse the law and policy of immigration detention in Canada. It will argue that the current policy of immigration detention in Canada does not comply with international human rights and obligations. The current policy of immigration detention does not reflect the values enshrined in the Charter of Fundamental Rights and Freedom, and the policy of mandatory detention should be abolished immediately. Immigration Detention should be a last resort, only enforced after alternatives to detention have been considered. There should be regular reviews of detention, equally applicable to all immigrants, and detention should last for as brief a period as possible.

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Acknowledgments

I would like to thank Audrey Macklin for her very helpful feedback and guidance.

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Table of Contents Introduction..........................................................5 Chapter One..........................................................7 Chapter Two.........................................................18 Chapter Three.......................................................27 Chapter Four.........................................................40 Conclusion.............................................................51

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Introduction

`It is often said that a society's moral strength is measured by how humanely it deals with the most vulnerable individuals living within its domain. The asylum detention centre, deliberately hidden from the public gaze, threatens to leave an indelible mark on our legacy, a strain that history will have difficulty erasing.'1

This thesis will focus on the law and policy of immigration detention affecting asylum seekers in Canada and argue that detention should only be used as a last resort measure only after a consideration of the alternatives to detention. There should be a regular review process to avoid indefinite detention. The thesis will assert that the current policy of mandatory detention in Canada is contrary to International Law and Charter jurisprudence and should be abandoned immediately.

The thesis will provide a background to the law and policy of immigration detention. It will assess the policy objectives of the detention of asylum seekers. It will critically analyse the societal impact that immigration detention has had resulting in the securitization of immigration issues and criminalization of immigrants. Detention will be analysed within the legal framework of human rights at International Law and national Charter jurisprudence. The thesis will provide a comparative analysis of immigration detention in the United Kingdom, the United States and Australia.

This paper seeks to contribute to the argument against immigration detention in all but the most exceptional circumstances. Such a decision should be based on an individual assessment of the facts in each case. When detention is resorted to there should be regular review of this decision so as the period of detention is as brief as possible. The policy of mandatory

1 D. Silove et al., "Detention of asylum seekers: assault on health, human rights, and social development." (2001) 357 Lancet 1436 at 2.

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