Locked away

“My life is not the same. I’m not who I am before.”

Tears roll down Abdirahman Warssama’s cheeks as he describes his years behind bars in Canada. Originally from Somalia, he remained locked up for five years and seven months in maximum security jails in Ontario, such as the one in Lindsay, about 130 kilometres northeast of downtown Toronto.

Five years and seven months without ever knowing when he was getting out.

“You have no hope,” Warssama says of the detention that drags on with no time frame, no end date. In Canada, there is no time limit to immigration detention.

For our meeting, he showed up wearing a shirt the same colour as the prison uniform he had to wear.

“Orange. To show people,” says the man with sad eyes and nervous gestures.

Warssama, like all immigration detainees, wasn’t charged with a crime. Nevertheless, he was incarcerated with hardened criminals while the Canada Border Services Agency (CBSA) tried to arrange his removal to Somalia.

“CBSA, I believe they killed me. They tortured me. The time they take from me, it’s not coming back,” he says, in reference to the emotional toll the prolonged imprisonment has taken on his life.

CBSA can detain foreign nationals for three main reasons under the Immigration and Refugee Protection Act: if they’re considered a flight risk, if their identity is not well established, and if they pose a danger to the public.

The vast majority of migrants are detained because they’re deemed to be a flight risk, meaning the border agency believes they will not appear for immigration processes such as a removal. CBSA can lock them up in one of its immigration holding centres or in provincial jails.

Seven years after his release, Warssama still bears the marks of his imprisonment.

When he tries to open the heavy door of the legal clinic in Toronto where we have arranged to meet, his right leg gives out and he loses his balance. The 59-year-old limps because of a dispute over peanut butter that turned violent.

He explains that, one day, fellow inmates wanted to take his share, and that he would have gladly given it up if he’d known what to expect.

“The next morning, when I go to shower, they come in and they beat me like crazy. They kicked me in the back. I cannot walk the way I used to walk. When I change my clothes, it takes time because my balance is not right.”

Warssama sits up in his chair, crosses his arms and tries to hold back tears many times during our interview. He confides that he often “sits in a corner and cries” when the images of his detention resurface.

Part of these obsessive memories are the lockdowns he experienced repeatedly – 199 lockdowns during a single year of incarceration.

Prompted by a staff shortage, the lockdowns could last several days, during which the detainees remained locked in their cells without access to showers, the yard, telephones or visitors.

Warssama is again overcome with emotion when he recounts that his sister, his only close relative in Canada, was never able to visit him during his entire detention.

He was finally released in December 2015, following a scathing Federal Court ruling that criticized the Canadian government for keeping him locked up over “a piece of paper.”

No Canadian airline would fly him to Somalia, and no border officer would accompany him there because the country was deemed too dangerous. Only one African company was willing to transport unescorted failed refugee claimants to that country, but it required Warssama’s consent.

That’s the piece of paper he refused to sign, because he feared going back to Somalia where members of his family were murdered.

His father was killed after being kidnapped by the authorities, and Warssama and his brother were imprisoned and tortured because the government suspected them of belonging to a rebel group, according to a sworn statement filed in court.

His family fled Somalia, except for a sister who stayed behind to look after their mother, who was too old to escape.

“I have been informed that they were both killed by Al Shabab militants sometime in 2012. Thus my last link to Somalia is gone,” Warssama said in the affidavit.

Warssama arrived in Canada in 1989. His refugee claim was denied, but he was later granted permission to remain in Canada on humanitarian grounds.

Then he got into trouble with the law, which made him inadmissible to Canada. He was sentenced to one day in jail for his criminal offences after pre-trial custody.

But CBSA imprisoned Warssama for nearly six years while they tried unsuccessfully to remove him, even though he was not considered dangerous.

Warssama has since been given a pardon for his offences and has been granted permanent residency.

But until he receives his Canadian citizenship, he’s afraid CBSA could arrest and detain him again. For an unlimited period.

“I’m scared. I’m angry. I don’t sleep well. I dream that I am still in prison,” Warssama says.

He’s now suing CBSA for mistreatment.

Living in fear is something Samuel knows too well. He also knows you don’t have to spend years behind bars for that fear to poison your life.

Samuel welcomed us to his modest apartment in Montreal.

He says every time he turns the key in the lock, he’s reminded of the freedom he can lose at any moment. He no longer takes anything for granted since he was detained for a few months at the Immigration Holding Centre in Laval, Que., before the pandemic.

“I always feel like I’m going to be sent there again, detained even longer. I live with this stress every day,” he says shyly in French, sitting near the only window where the light of the chilly afternoon filters in.

Radio-Canada/CBC has agreed to withhold his real name and information that could identify him, because he fears CBSA could lock him up again.

“I was really scared I was going to stay there. I started to panic,” says the soft-spoken African-born man.

Each day in detention raised his stress level another notch.

“When you wake up, you think maybe they’ll let you go. Time passes. You don’t know when you’re coming out. You become anxious. Very anxious. Some people were freaking out,” says Samuel, still shaken by his detention that had no set length.

“It affected me a lot. It causes mental illness,” he says. “It’s a jail.”

CBSA operates three immigration holding centres in Laval, Toronto and Surrey, B.C. Migrants are housed together and not with criminals. They are nevertheless locked up against their will in fenced-in buildings, some surrounded by barbed wire. Their every move is monitored by camera systems and security guards from private companies such as Garda.

“Some are very aggressive. The guards have no respect for the people there. It’s like you’re worthless,” Samuel says.

Appointments outside the facility, far from giving him a break from detention, were particularly difficult for him.

“To go to the hospital….They handcuffed my hands and put shackles on my feet,” he recalls. “People look at you … as if you were a criminal. It’s humiliating.”

Yet Samuel had no criminal history and posed “zero risk,” according to a document obtained by Radio-Canada/CBC in which CBSA calculated his danger level based on a point system. The border agency considered him a flight risk because he had refused to leave Canada before.

Samuel arrived in Quebec several years ago after escaping war in his native country. He says he saw houses pillaged and set on fire, and families burned to death – memories he describes as “traumatic” and that he recounts painfully, bit by bit, his soft voice barely audible.

After setting foot on Canadian soil, he applied for refugee status but was rejected. “I was not well-informed. I had no one to turn to,” he says.

For years, he lived as an undocumented resident, worked, made friends and integrated into Quebec society, which he now considers his own. He filed a new application to stay in Canada, this time on humanitarian and compassionate grounds.

But border officers eventually tracked him down. That’s when they locked him up for months, releasing him only because his removal could not be carried out.

Upon his release, Samuel’s troubles were far from over. He no longer had a job or an apartment, and his few belongings had disappeared.

“I lost everything,” he says sadly.

Now, he has again found work and a place to live, and his permanent residency application is progressing. But the psychological wounds have not healed.

Since his detention, Samuel says he suffocates in tight spaces. “When I’m not working, I’m depressed. I can’t stay in a place like this,” he says, pointing to his small living room that has now darkened as dusk settles in.

“They’re not treated like people,” immigration lawyer Subodh Bharati laments.

Bharati has heard so many heartbreaking stories like his client Warssama’s that at one point he felt the need to take a break from such cases.

“It’s painful, you know? There’s so much energy to get this person out and they get out. And then there’s another person and ... another person. At some point it just wears on you.”

Bharati has now resumed his work representing immigration detainees with CLASP, the Osgoode Hall Law School’s legal clinic at York University in Toronto, where he oversees law students.

“Most students or people in Canada don’t realize the injustices that happen in immigration detention,” he says. “They have even less rights than accused criminals.”

Someone accused of a crime is considered innocent until proven guilty and will be freed on bail unless there’s a serious reason to detain them until trial.

On the other hand, most immigration detainees are not considered dangerous. Also, for migrants who have no family in Canada, finding a bondsperson is difficult and the amount required for their bail is much higher than in the criminal system, Bharati explains.

And unlike convicted criminals, they have no idea when their detention will end.

According to Bharati and other experts Radio-Canada/CBC spoke to, there’s a misconception that migrants’ rights are protected because the IRB is charged with regularly reviewing the reasons for their detention.

“They are non-Canadian, they can be sent to jail and forgotten,” Bharati says.

Many immigration lawyers and human rights advocates were disappointed when the Federal Court of Appeal ruled in 2020 that the lack of a time limit for immigration detention was constitutional.

But the court did outline the necessary conditions for detention to remain legal. For instance, the possibility of removal must be realistic and grounded in evidence. If not, the person must be released.

Bharati believes many detention cases don’t comply with the criteria established by the court, but says most migrants don’t have the means to challenge their detention.

There are two things the federal government could do right away to improve the lives of migrants, he says: adopting a time limit for immigration detention, and ending the use of provincial jails for that purpose. He and other lawyers are challenging the constitutionality of that second practice in court.

For many human rights organizations in Canada, such as Amnesty International, Human Rights Watch and Solidarity Across Borders, the ultimate goal is ending immigration detention altogether.

The office of Public Safety Minister Marco Mendicino, who is responsible for CBSA, says detention is “always a measure of last resort,” and that the government continues to seek alternatives to detention.

“While we have made progress, there remains much work to be done and we will continue working hard to reduce the use of immigration detention,” wrote Mendicino’s spokesperson in response to Radio-Canada/CBC’s request for comment.

But the minister’s office would not say if they’re open to adopting a time limit for this type of detention.

Unlike Canada, several western countries have set legal time limits for immigration detention.

For example, in the 27 countries of the European Union, detention must not exceed six months, according to a 2008 European Parliament directive. However, the same directive provides for an extension of up to 12 months in some circumstances.

In some countries, immigration detention isn’t even part of the approach. That’s the case in Argentina, where a 2004 law officially recognizes the right to migrate.

“With regard to persons in an irregular situation, as long as the irregularity is an administrative offence – not a crime – the rule to be applied is the same: remain in liberty during the administrative process,” says Noelia Garone, director of human rights protection with Amnesty International in Argentina.

In 2016, a new right-wing government with an anti-immigrant bent tried to establish Argentina’s first immigration detention centre, but faced with widespread opposition, it never opened.

“Why should we detain them if they have not committed a crime?” asks lawyer Pablo Ceriani Cernadas, co-ordinator of the migration and asylum research program at the National University of Lanús, Argentina.

The question haunts Warssama and other immigration detainees like him.

“When I was in jail, I’d think, this is not Canada. I came here for a better life.”