Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note:Release — officer

• 56 (1) An officer may order the release from detention of a permanent resident or a foreign national before the first detention review by the Immigration Division if the officer is of the opinion that the reasons for the detention no longer exist. The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary.

• Marginal note:Period of detention — designated foreign national

  (2) Despite subsection (1), a designated foreign national who is detained under this Division and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question must be detained until

  • (a) a final determination is made to allow their claim for refugee protection or application for protection;

  • (b) they are released as a result of the Immigration Division ordering their release under section 58; or

  • (c) they are released as a result of the Minister ordering their release under section 58.1.

• Marginal note:Conditions — inadmissibility on grounds of security

  (3) If an officer orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the officer must also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (4) The prescribed conditions imposed under subsection (3) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

Marginal note:Review of detention

• 57 (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.

• Marginal note:Further review

  (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.

• Marginal note:Presence

  (3) In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.

Marginal note:Initial review — designated foreign national

• 57.1 (1) Despite subsections 57(1) and (2), in the case of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, the Immigration Division must review the reasons for their continued detention within 14 days after the day on which that person is taken into detention, or without delay afterward.

• Marginal note:Further review — designated foreign national

  (2) Despite subsection 57(2), in the case of the designated foreign national referred to in subsection (1), the Immigration Division must review again the reasons for their continued detention on the expiry of six months following the conclusion of the previous review and may not do so before the expiry of that period.

• Marginal note:Presence

  (3) In a review under subsection (1) or (2), the officer must bring the designated foreign national before the Immigration Division or to a place specified by it.

Marginal note:Release — Immigration Division

• 58 (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that

  • (a) they are a danger to the public;

  • (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);

  • (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, criminality, transborder criminality or organized criminality;

  • (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or

  • (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.

• Marginal note:Continued detention — designated foreign national

  (1.1) Despite subsection (1), on the conclusion of a review under subsection 57.1(1), the Immigration Division shall order the continued detention of the designated foreign national if it is satisfied that any of the grounds described in paragraphs (1)(a) to (c) and (e) exist, and it may not consider any other factors.

• Marginal note:Detention — Immigration Division

  (2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.

• Marginal note:Conditions

  (3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.

• Marginal note:Conditions — designated foreign national

  (4) If the Immigration Division orders the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, it shall also impose any condition that is prescribed.

• Marginal note:Conditions — inadmissibility on grounds of security

  (5) If the Immigration Division orders the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, it shall also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (6) The prescribed conditions imposed under subsection (5) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

Marginal note:Release — on request

• 58.1 (1) The Minister may, on request of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release.

• Marginal note:Release — Minister’s own initiative

  (2) The Minister may, on the Minister’s own initiative, order the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question if, in the Minister’s opinion, the reasons for the detention no longer exist.

• Marginal note:Conditions

  (3) If the Minister orders the release of a designated foreign national, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.

• Marginal note:Conditions — inadmissibility on grounds of security

  (4) If the Minister orders the release of a designated foreign national who is the subject of either a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security, the Minister must also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (5) The prescribed conditions imposed under subsection (4) cease to apply only when one of the events described in paragraphs 44(5)(a) to (e) occurs.

Marginal note:Incarcerated foreign nationals

59 If a warrant for arrest and detention under this Act is issued with respect to a permanent resident or a foreign national who is detained under another Act of Parliament in an institution, the person in charge of the institution shall deliver the inmate to an officer at the end of the inmate’s period of detention in the institution.

Marginal note:Minor children

60 For the purposes of this Division, it is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child.

Marginal note:Regulations

61 The regulations may provide for the application of this Division, and may include provisions respecting

• (a) grounds for and criteria with respect to the release of persons from detention;

• (a.1) the type of conditions that an officer, the Immigration Division or the Minister may impose with respect to the release of a person from detention;

• (a.2) the type of conditions that the Immigration Division must impose with respect to the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question;

• (a.3) the conditions that an officer, the Immigration Division or the Minister must impose with respect to the release of a permanent resident or foreign national who is the subject of either a report on inadmissibility on grounds of security or a removal order for inadmissibility on grounds of security;

• (b) factors to be considered by an officer or the Immigration Division; and

• (c) special considerations that may apply in relation to the detention of minor children.

DIVISION 7Right of Appeal

Marginal note:Competent jurisdiction

62 The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.

Marginal note:Right to appeal — visa refusal of family class

• 63 (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

• Marginal note:Right to appeal — visa and removal order

  (2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

• Marginal note:Right to appeal removal order

  (3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing.

• Marginal note:Right of appeal — residency obligation

  (4) A permanent resident may appeal to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation under section 28.

• Marginal note:Right of appeal — Minister

  (5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.

Marginal note:No appeal for inadmissibility

• 64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality.

• Marginal note:Serious criminality

  (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

• Marginal note:Misrepresentation

  (3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.

Marginal note:Humanitarian and compassionate considerations

65 In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.

Marginal note:Disposition

66 After considering the appeal of a decision, the Immigration Appeal Division shall

• (a) allow the appeal in accordance with section 67;

• (b) stay the removal order in accordance with section 68; or

• (c) dismiss the appeal in accordance with section 69.

Marginal note:Appeal allowed

• 67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,

  • (a) the decision appealed is wrong in law or fact or mixed law and fact;

  • (b) a principle of natural justice has not been observed; or

  • (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

• Marginal note:Effect

  (2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.

Marginal note:Removal order stayed

• 68 (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

• Marginal note:Effect

  (2) Where the Immigration Appeal Division stays the removal order

  • (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary;

  • (b) all conditions imposed by the Immigration Division are cancelled;

  • (c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and

  • (d) it may cancel the stay, on application or on its own initiative.

• Marginal note:Reconsideration

  (3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.

• Marginal note:Termination and cancellation

  (4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality, criminality or transborder criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.