Peter A Allard School of Law

Faculty Colloquium - Immigration Detention in an Age of COVID-19

With Efrat Arbel, Allard Law and Molly Joeck, Migration Cluster, School of Public Policy and Global Affairs and PhD Student, Allard Law

In this talk, Professor Efrat Arbel and Molly Joeck will be discussing their forthcoming piece analyzing Canada’s response to the outbreak of COVID-19 as it relates to immigration detention. They 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. Their analysis focuses on seventeen ID decisions released between mid-March and mid-May 2020, at the height of the pandemic in Canada, and 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. Arbel and Joeck 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, Arbel and Joeck 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, they identify the progressive possibilities hidden in that reconfiguration, and urge for it to continue even as the worse of the pandemic begins to pass.


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