H&C Applications: The Provincial Restriction

The ability of an applicant to be admitted to Canada despite not meeting the requirements for an immigration program is one of the more complicated areas of immigration law.  Section 25 of the Immigration and Refugee Protection Act provides that an immigration officer may grant a foreign national permanent resident status or an exemption from any applicable criteria or obligations of the Act if doing so is justified by humanitarian & compassionate considerations.

Section 25(2), however, contains an important exception, which states that:

Provincial criteria

(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

Section 9(1) of the Act provides:

Sole provincial responsibility — permanent residents

9. (1) Where a province has, under a federal-provincial agreement, sole responsibility for the selection of a foreign national who intends to reside in that province as a permanent resident, the following provisions apply to that foreign national, unless the agreement provides otherwise:

a) the foreign national, unless inadmissible under this Act, shall be granted permanent resident status if the foreign national meets the province’s selection criteria;

(b) the foreign national shall not be granted permanent resident status if the foreign national does not meet the province’s selection criteria;…

Accordingly, section 25 of the Act cannot be used to overcome provincial eligibility requirements.  We were recently approached by an individual who was ineligible for a Provincial Nominee Program.  A friend had told him that he could use s. 25 to ask Citizenship and Immigration Canada to grant him an exemption for a particular requirement in the PNP program.  However, as s. 25(2) of the Act makes clear, such a request would be unsuccessful.

Case Law

The applicant’s adoption application under the Quebec’s immigration program was rejected because Quebec refused to grant the child a selection certificate (CSQ). The applicant argued that the immigration officer should have considered humanitarian & compassionate considerations, and notified the applicant that to be eligible they would have to apply to a different province.  The Court rejected this, noting that s. 25(2) of the Act precluded the immigration officer from considering H&C reasons to get around provincial requirements: Koroghli v. Canada (Citizenship and Immigration), 2010 FC 1067.


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