Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities. H&C applications may be based on a number factors, including: establishment in Canada; ties to Canada; the best interests of any children affected by their application; factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not related to a fear of return based on refugee determination factors; health considerations; family violence considerations; consequences of the separation of relatives; inability to leave Canada has led to establishment; and/or any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors. The purpose of this post is to focus on the establishment factor. Establishment in Canada Immigration, Refugees and Citizenship Canada’s Guidelines (the “Guidelines“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions: Does the applicant have a history of stable employment? Is there a pattern of sound financial management? … Read More
H&C for Ukrainians
Since the Russian invasion of Ukraine in 2022, millions of Ukrainians have been displaced, with many seeking refuge in Canada. Initially, Canada introduced the Canada-Ukraine Authorization for Emergency Travel (“CUAET”), a temporary visa program offering expedited entry and work or study permits for Ukrainians and their family members. While this program has been a lifeline for many, it is not a pathway to permanent residency. While some Ukrainians are applying for permanent residency through narrow dedicated programs, family reunification or economic streams, others are turning to humanitarian & compassionate (“H&C”) applications. H&C Applications A humanitarian and compassionate application allows individuals who do not meet the usual eligibility criteria for permanent residency to request consideration based on compelling personal circumstances. Immigration officers assess the application on a case-by-case basis, focusing on factors such as establishment in Canada, family ties, best interests of any children involved and hardship that would result from removal For Ukrainians considering an H&C application, presenting a strong case is essential. This involves: Documenting Establishment: Proof of employment, education, community involvement, and other ties to Canada. Highlighting Hardship: Detailed evidence of the risks and challenges of returning to Ukraine. Demonstrating Best Interests of Children: Evidence of how remaining … Read More
Procedural Fairness Where Credibility is an Issue
In an application to Immigration, Refugees and Citizenship Canada (“IRCC“) the burden is on the applicant to put forward a complete, convincing and unambiguous application which provides sufficient evidence to establish that the requirements of Canadian immigration legislation are met. Visa officers are not under an obligation to ask for additional information where the submitted material is insufficient. As well, as demonstrated by the decision in Omitogun v. Canada (Citizenship and Immigration), 2024 FC 719, visa officers are under no obligation to review an applicant’s previously submitted applications. However, where there is a concern regarding the credibility or the genuineness of the evidence submitted, as opposed to the sufficiency of, or weight to be given, to that information, then the duty of fairness generally requires that the applicant be given the opportunity to address the concern. The Federal Court succintently set out the test in Fard v. Canada (Citizenship and Immigration), 2024 FC 1403, writing: Where an officer suggests that the applicant’s supporting documents serve a “demonstrative purpose” amounting to a “deceptive façade” (Taeb v Canada (Citizenship and Immigration) 2023 FC 576 at para 6) or where, as here, the officer states that the applicant’s financial data has been “inflated” … Read More
Humanitarian & Compassionate Applications
People who would not normally be eligible to become permanent residents of Canada may be able to apply on humanitarian and compassionate (“H&C“) grounds. Humanitarian and compassionate grounds apply to people with exceptional cases. Here are 2020 approval statistics for humanitarian & compassionate class applications. Here are approval statistics for 2018 – 2023 (January – August). Sample Decisions Below are sample H&C decisions that were used in an Immigration, Refugees and Citizenship Canada training session. For each example, IRCC provided a chat to show a portion of the officer’s decision-making steps to describe context of the application. As can be seen, a big deficiency in many H&C applications is the applicant not providing documentary examples to substantiate their assertions in claim. The H&C requests were based on the following situations: Domestic violence in Mexico from two former partners Discrimination in Japan Criminal gangs in Honduras Members of a drug cartel Land dispute Adverse country conditions in Bulgaria Membership in a political party Adverse country conditions in China Adverse country conditions in Fiji Religious discrimination in Bangladesh COVID-19 In the following years there will likely be many humanitarian & compassionate consideration applications filed by people who worked as front-line workers during … Read More
The Best Interests of a Child
Yesterday, an individual called wanting to know if the fact that she was pregnant would guarantee a successful H&C application because of the duty to consider the “best interests of the child.” The father is Canadian.
H&C And Keeping Families Together
As per the Supreme Court of Canada decision in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, an applicant for relief under s. 25 of the Immigration and Refugee Act must establish humanitarian & compassionate circumstances (“H&C”) that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another.” In assessing whether such circumstances exist in any given case, it is important to keep in mind that s. 25 was enacted to address situations in which the consequences of deportation “might fall with much more force on some persons … than on others, because of their particular circumstances …” Consequently, it is not sufficient to simply establish the existence or likely existence of misfortunes, relative to Canadian citizens and permanent residents of Canada. Rather, it is incumbent upon applicants for the exceptional relief contemplated by s. 25 to demonstrate the existence of misfortunes or other circumstances that, taken as a whole, resonate with materially greater force, “relative to those of other applicants who apply for permanent residence from within Canada or abroad. In assessing whether an applicant has established sufficient H&C considerations to warrant a favourable exercise of discretion under s. 25 of … Read More
H&C – Minister’s Initiative
It is generally understood that individuals applying for permanent residence can request that Immigration, Refugees and Citizenship Canada (“IRCC“) grant them an exemption from the general requirements of the Immigration and Refugee Protection Act, SC 2001, c-27 (the “IRPA“) on humanitarian & compassionate (“H&C“) grounds. It is also possible for the Minister of IRCC to grant H&C grounds on their own initiative. Section 25.1(1) of the IRPA states: Humanitarian and compassionate considerations — Minister’s own initiative 25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible — other than under section 34, 35 or 37 — 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. Exemption (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). Provincial criteria (3) The … Read More
National Documentation Packages
The Immigration and Refugee’s Board (“IRB“) National Documentation Package (“NDP“) is the starting point for compiling information for a refugee case. The NDP contains information on almost every country on earth. Each package contains a selection of documents on human rights, security conditions, and other issues that are relevant to the determination of refugee protection claims. They are regularly reviewed and updated. Each NDP is broken down into the following sections: General Information and Maps Human Rights Identification Documents and Citizenship Political Activists and Organizations Gender, Domestic Violence, and Children Sexual Orientation Criminality and Corruption Military Service Issues Judiciary, Legal, and Penal Systems Police and Security Forces Media Freedoms Religion Nationality, Ethnicity, and Race Exit/Entry and Freedom of Movement Labour, Employment, and Unions Other It is important that anyone with a case before the Refugee Protection Division familiarize themselves with the NDP for their country of origin. Related Jurisprudence Refugee Protection Division members do not have a duty to make themselves aware of information before it becomes vetted and becomes part of a country’s National Documentation Package. An exception is if an applicant directs the Member’s attention to the information in question prior to a decision being made. (Ramos v. … Read More
Administrative Deferrals of Removal
Administrative deferrals of removal (“ADR“) are temporary measures when the Government of Canada determines that immediate action is needed to temporarily defer removals of foreign nationals to countries experiencing humanitarian crisis. Once the situation in a country stabilizes the ADR is lifted and removals resume. Those who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security can still be removed despite the ADR. H&C Applications Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623 (“Bawazir“), the existence of an ADR should not negate the hardship analysis that officers conduct in humanitarian & compassionate applications. As Justice Norris noted: One can certainly understand why Mr. Bawazir would like to secure his status in Canada by obtaining permanent residence here. In my view, a reasonable and fair-minded person would judge the requirement that he leave Canada and go to a war zone where a dire humanitarian crisis prevails so that he could apply for permanent residence as a misfortune potentially deserving of amelioration. The existence of the ADR demonstrates that Canada views the conditions in Yemen as a result of the civil war to “pose … Read More
Deferring Removal
People who either face removal or who have received a removal order should contact a lawyer immediately to determine what their options are. The purpose of this post is to provide an overview of the legislative scheme for deferring removal orders. It provides a general framework, and cannot substitute the advice that a lawyer can give when he applies these facts to your situation.