Ministers Instructions Resulting From Changes to s. 25 H&C Applications

On Saturday, August 14, Citizenship and Immigration Canada (“CIC“) released Ministers Instructions regarding proposed changes to the Immigrations and Refugee Protection Regulations (the “Regulations“) that will correspond to changes to humanitarian & compassionate (“H&C“) applications under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) that resulted from the Balanced Refugee Reform Act (“Bill C-11“).

The changes will impact H&C applications under IRPA s. 25, which provides that an individual who does not meet the eligibility requirements to apply within an immigration class may be granted permanent resident status or an exemption from any criteria under humanitarian and compassionate or public policy grounds.  Prior to Bill C-11, s. 25 stated:

25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

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.2001, c. 27, s. 25; 2008, c. 28, s. 117.

As a result of Bill C-11, s. 25 will now read:

25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

(1.2) The Minister may not examine the request if the foreign national has already made such a request and the request is pending.

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

(3) 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.

25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations.

(2) The Minister may exempt the foreign national from the payment of any applicable fees in respect of the examination of their circumstances under subsection (1).

(3) 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.

The proposed changes to the Regulations are largely technical, and designed to ensure that the “splitting” of s. 25 into three sections are reflected in the Regulations.

Thus, s. 233 of the Regulations will now state that:

233. A removal order made against a foreign national, and any family member of the foreign national, is stayed if the Minister is of the opinion that the stay is justified by humanitarian and compassionate considerations, under subsection 25(1) or 25.1(1) of the Act, or by public policy considerations, under subsection 25.2(1) of the Act. The stay is effective until a decision is made to grant, or not grant, permanent resident status.

Section 207 of the Regulations, regarding work permits, contains a similar amendment, and will now state that:

(b) a person in respect of whom an application for a permanent resident visa, an application to remain in Canada as a permanent resident, or an application under subsection 25(1) of the Act is pending, or in respect of whom a decision under subsection 25.1(1) or 25.2(1) of the Act is pending;

These changes also apply to permanent resident visas and processing fees in s. 67-68 of the Regulations, and in s. 298(2)(b) regarding payment of fees.


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