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The Government of Canada is committed to protecting the integrity of Canada's immigration system while supporting public safety and security priorities and respecting international obligations related to refugees. The Government is further committed to creating a better, fairer immigration detention system for the humane and dignified treatment of individuals while upholding public safety. To achieve its goal of ensuring that detention is a measure of last resort, the Government has identified a number of objectives. With respect to the detention of minors, a key objective is to avoid housing children in detention facilities, as much as humanly possible.
The Canada Border Services Agency (CBSA) has identified two regulatory proposals to address the issue of minors, detention and the consideration of the best interests of the child under the Immigration and Refugee Protection Act (the Act) and the Immigration and Refugee Protection Regulations. This consultation notice is intended to provide the public and stakeholders with an opportunity to provide feedback on the measures that are under consideration. Regulatory amendments are planned to be pre-published in the Canada Gazette later this fiscal year, and to come into force later in 2018.
Measures Under Consideration
Below is a summary of measures that are being considered:
1. Amend the Regulations to prescribe that the best interests of a non-detained, minor child must be considered in any decision to detain or continue the detention of that child's parent or legal guardian.
This proposed regulatory amendment will ensure that all decision-makers will be required to consider the best interests of any non-detained, minor child directly affected by a decision to detain that child's parent(s) or legal guardian(s). This will apply to both CBSA officers responsible for arrest, detention and release decisions under sections 55 and 56 of the Act as well as to Immigration Division Members responsible for decisions on continued detention or release under section 58.
2. Amend the Regulations to prescribe a non-exhaustive list of factors that decision-makers must consider when making a determination of a child's best interest in relation to detention decisions. The list of factors may include:
- a. the child's physical, mental and emotional needs;
- b. the child's educational needs;
- c. the preservation of the family environment and maintaining relationships;
- d. the care, protection and safety of the child;
- e. the level of dependency between the child and the parent or legal guardian;
- f. the child's views, if they can be reasonably ascertained;
- g. the child's age and level of maturity; and,
- h. any other relevant factor.
By creating a non-exhaustive list of factors that all decision-makers (i.e., CBSA officers and Immigration and Refugee Board Immigration Division members) must consider, this proposed regulatory amendment would provide greater clarity to decision-makers and support more consistent decision-making for a determination of a child's best interests. Additionally, a non-exhaustive list of factors maintains flexibility, allowing decision-makers to consider other individual or case-specific factors that may be present in any particular case.
Comments or Questions
Should you have any comments or questions on the planned regulatory amendments, you are invited to provide feedback to:
Immigration Enforcement Policy Unit
Enforcement and Intelligence Programs
Canada Border Services Agency
100 Metcalfe, Ottawa ON K1A 0L8
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