Explanation of the H&C Bars

The purpose of this blog post is to provide an overview of the changes to Humanitarian & Compassionate Applications (“H&C“) resulting from the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act which are now in effect.  In brief, there are now several restrictions on when H&C applications can be made.

Permanent Residence Applications Only

Perhaps most importantly, section 25 of the Immigration and Refugee Protection Act now states:

Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, 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.

[Emphasis Added]

As such, officers cannot consider H&C factors in temporary resident applications, including work permits, study permits, and visitor records.

One Year Bar (and Five Year Bar)

The following table explains how Citizenship and Immigration Canada will process H&C applications in certain scenarios.

If Then
CIC receives the H&C application on or after June 29, 2010, and the applicant has a pending H&C application (this could include an H&C request made in the context of another type of PR application)… the H&C application will NOT be examined, fee and application will be returned.
the application is received on or after June 28, 2012, and the applicant has a pending refugee claim…. the H&C application will NOT be examined, fee and application will be returned.
the application is received on or after June 28, 2012, and the applicant has received a negative decision on a refugee claim from the Immigration and Refugee Board’s Refugee Protection Division (RPD) or Refugee Appeal Division (RAD). the H&C application will NOT be examined until after 12 months have passed since the date of the last decision, fee and application will be returned, unless an exception applies.
the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim AFTER substantive evidence was heard at their RPD hearing the H&C application will NOT be examined until after 12 months have passed since the date that the IRB determined the claim to be withdrawn, fee and application will be returned, unless an exception applies.
the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim BEFORE substantive evidence was heard at their RPD hearing the H&C application will be examined.
the application is received on or after June 28, 2012, and the applicant has been determined to be a “designated foreign national” the H&C application will NOT be examined for 5 years.

Exceptions

The exceptions mentioned above are 1) risk to life due to medical condition and 2) adverse effect on the best interests of a child directly affected.  Special rules apply to claiming these exceptions, and it is important that applicants be specific that they are requesting them.