Immigration Detention in the Age of COVID-19

Forthcoming in: Catherine Dauvergne (ed.), Research Handbook on the Law and Politics of Migration (2021: Edward Elgar Press)

22 Pages Posted: 5 Aug 2020

See all articles by Efrat Arbel

Efrat Arbel

University of British Columbia (UBC), Faculty of Law; Harvard University - Law School - Alumni; University of Oxford - Border Criminologies

Molly Joeck

University of British Columbia

Date Written: 2020

Abstract

In this chapter, we analyze Canada’s response to the outbreak of COVID-19 as it relates to immigration detention. We focus on decisions released by the Immigration Division (ID) of the Immigration and Refugee Board, the quasi-judicial administrative tribunal tasked with detention-related decision-making in Canada. Writing in the four months after pandemic measures were first introduced in Canada, our analysis is by necessity provisional, and focuses on seventeen ID decisions released between mid-March and mid-May 2020, at the height of the pandemic in Canada. Our analysis of this dataset reveals an identifiable shift in ID practice: prior to the outbreak of COVID-19, ID members generally refused to hear arguments related to conditions of detention, and rarely ordered release on that basis. With the onset of the pandemic, however, ID members have not only entertained arguments identifying COVID-19 as a condition of detention, but more significantly, have explicitly relied on this condition as a basis for release. We argue that this shift in ID practice is significant. Legally, it allows detainees to argue the conditions of their own confinement before the administrative body tasked with overseeing their detention. This renders those conditions actionable, and therefore legally meaningful. Materially, this shift empowers detainees, allowing them to more effectively advocate for their own release, while lessening the violence inherent to the detention review process. Conceptually, the decisions suggest a shift in the paradigm within which legal decisions governing detention are made. Before COVID-19, the release assessment was firmly entrenched in the familiar “us/them” paradigm that characterizes the disciplinarity of immigration detention. The post COVID-19 decisions suggest that this paradigm may have shifted temporarily: the line distinguishing us from them has blurred in the shadow of a common threat, and the location of risk has shifted in relation to that line. Rather unexpectedly, the previous conception of the inherent riskiness of migrants has been displaced by the disruptive, risky, pandemic – a change that was surely buttressed by the closure of the Canadian border, in particular to asylum seekers. Reflecting on the broader implications of this shift in ID conduct, we suggest that the onset of COVID-19 has revealed the ways in which the containment and confinement of noncitizens can be reconfigured in Canadian law. Mindful of the potentially limited nature of this shift, we identify the progressive possibilities hidden in that reconfiguration, and urge for it to continue even as the worse of the pandemic begins to pass.

Keywords: immigration detention; Canada; COVID-19

Suggested Citation

Arbel, Efrat and Joeck, Molly, Immigration Detention in the Age of COVID-19 (2020). Forthcoming in: Catherine Dauvergne (ed.), Research Handbook on the Law and Politics of Migration (2021: Edward Elgar Press) , Available at SSRN: https://ssrn.com/abstract=3653452

Efrat Arbel (Contact Author)

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

Harvard University - Law School - Alumni

1563 Massachusetts Ave
Cambridge, MA 02138
United States

University of Oxford - Border Criminologies ( email )

Manor Road Building
Manor Rd
Oxford, OX1 3UQ
United Kingdom

Molly Joeck

University of British Columbia ( email )

1822 East Mall
Vancouver, British Columbia
Canada

HOME PAGE: http://https://migration.ubc.ca/people/molly-joeck

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