Man Held in Indefinite Immigration Detention Finally Set Free After Seven Years in a Maximum-Security Jail
Kashif Ali, born in Ghana to a Ghanaian father and Nigerian mother, entered in Canada in 1986. He claims to never have had legitimate identity documents because his birth was not registered, and he entered Canada with a false passport. In Canada, he made a refugee claim, but it was rejected and he never obtained proper status. Mr. Ali also struggled with a drug addiction and was convicted of criminal offences, mostly petty crimes.
As a result of his criminal record, the Canadian government sought to deport him and resorted to holding him in immigration detention in the interim, in a maximum security prison, on an indefinite basis. This detention was not a criminal sentence, but rather, it was imposed pursuant to the Immigration and Refugee Protection Act, which allows foreign nationals to be detained if authorities are concerned they are unlikely to appear for examination or for removal, or if they present a danger to the public.
Most of the time, immigration detention is a temporary measure that last only a few weeks. Detainees are then released when their matter is resolved or when they are given conditions to abide by. Sometimes, detention can stretch to months or years; such was the case for Mr. Ali. The government was reluctant to release him because he had previously breached conditions of release four times, although Mr. Ali attributed this to his past drug addiction.
Furthermore, his deportation remained unresolved because they were unable to prove Mr. Ali’s citizenship in Ghana and Nigeria; neither country was willing to take him back, which left Mr. Ali in detention, in a state of limbo.
There is no maximum length of detention in Canada for immigration matters. Finally, the Ontario Superior Court ordered his release in April 2017, after Mr. Ali made an application for habeas corpus, arguing that his detention was unlawful. He had been in detention for more than seven years.
Judge Ian Nordheimer found that the detention was unduly and exceptionally lengthy, and that it was uncertain in that there was no reasonable prospect that Mr. Ali’s situation would change; in light of this, he found that the indefinite detention violated his Charter rights and that the habeas corpus application should proceed, as Canada cannot purport to hold someone in detention forever.
The government’s position was that Mr. Ali’s continued detention was not exceptionally lengthy and was therefore justified by having regard to the complexity of the circumstances of removal (more specifically, the non-cooperation of the detainee in his removal). They alleged that Mr. Ali was providing contradictory information and that he was withholding evidence of his citizenship in Ghana and Nigeria.
Judge Nordheimer rejected this argument, stating that the alleged withholding of evidence was speculation, and that even if it was true, the detainee’s lack of cooperation in deportation cannot justify indefinite detention. Even if the detainee refused to cooperate with the removal, it was found that Mr. Ali’s detention of seven years was exceptionally lengthy and therefore violated the right to life, liberty and security of the person, and the right not to be arbitrarily detained under sections 7 and 9 of the Charter, respectively.
The Federal Court is currently in the midst of hearing a constitutional challenge to these Canadian immigration laws regulating detention. Meanwhile, the federal government has stated that it is considering policy changes relating to immigration detention and the use of jails.