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?
- Has the applicant remained in one community or moved around?
- Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
- Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
- Do the applicant and their family members have a good civil record in Canada?
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.
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.
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, » Read more about: Explanation of the H&C Bars »Read more ›
Almost two years ago I did a post on whether a disabled adult who is dependent on his parents can be considered a child for the “best interest of the child” analysis in H&C applications. At the time, I wrote that:
[Saporsantos Leobrera v. Canada (Citizenship and Immigration), 2010 FC 587] holds that an adult with a disability remains an adult with a disability, and ought not to be deemed a “child” for the purposes of the Convention on the Rights of the Child, or section 25 of the Immigration and Refugee Protection Act.
It is important to note that this is only the most recent case in a string of decisions on this issue. Given the conflicting preceding decisions on the matter, the issue is by no means settled.
It took longer for this issue to re-emerge in the jurisprudence than I thought it would, but the issue of what the definition of a “child” is for the “best interest of the child” analysis was front and centre in the recent decision of Dugly Medina Moya v. The Minister of Citizenship and Immigration, 2012 FC 971.
In Moya, Justice Hughes agreed with and re-printed much of the judgement in Saporsantos Leobrera, writing that:
The courts have a specific role to play in the Canadian system of constitutional supremacy. Acknowledging the roles of the executive branch, the legislative branch and recognizing the judiciary’s role as one of interpretation of the law. It is, thus, incumbent on the Federal Court to follow the interpretation of the legislation in jurisprudence issued by the Federal Court of Appeal and the Supreme Court.Read more ›
In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship. While part of the decision dealt with procedural fairness, and the following interesting quote
One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,
Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.
Regulation 66 of the Immigration and Refugee Protection Regulations states that:
A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.
As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing. As he did not, there was no obligation on the officer to consider them.Read more ›
Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices. I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.
Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).
In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle. As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident.
Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada. The man was from the same country that she was.
Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.
One month later, the Applicant’s husband’s refugee claim was rejected. The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.
This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:
113. (1) A foreign national becomes a member of the live-in caregiver class if
(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;Read more ›
One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).
In the removals context, s. 67(1)(c) of Canada’s Immigration and Refugee Protection Act specifically provides that removal orders issued as a result of misrepresentation may be excused in light of sufficient H&C considerations. As the Federal Court of Canada noted in Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451, even though Parliament intended there to be consequences for misrepresentation, it also recognized that there may be circumstances where a removal order issued due to misrepresentation may be cured by H&C relief
The balancing act can be especially complex when children are involved. In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.
As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application. This is simply not the case. For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice.Read more ›
On April 19, 2011, the Federal Court of Appeal declared that Citizenship and Immigration Canada has the authority to waive application fees for humanitarian & compassionate purposes.
My favorite part of the judgment was the following passage:
I do not accept the Minister’s argument on this point. The result of the Minister’s interpretation is this. It is possible as a matter of law for a person with no financial resources to be granted permanent resident status if the Minister is of the opinion that such a decision is warranted by humanitarian and compassionate considerations or public policy considerations. However, because that same person does not have $550, the Minister cannot permit the opening of the door that would engage the Minister’s statutory authority to assess those considerations. In my view, that state of affairs makes no sense.
Accordingly, section 25(1) of IRPA allows the Minister to waive any applicable criteria or obligation under the Act for humanitarian and compassionate considerations and public policy considerations.
It is important to note that while Citizenship and Immigration Canada has the authority to grant a request made by a foreign national in Canada to waive the requirement to pay an application fee, and that if asked by an applicant it has to make a decision on the matter, Citizenship and Immigration Canada does not have to waive the fee.
So don’t jump for joy at the prospect of of not having to pay application fees, because it’s hard to imagine that Citizenship and Immigration Canada will be granting too many, if any, waivers.
Read more ›
Failed refugee claimants, and some other types of inadmissible people within Canada, often submit both Pre-Removal Risk Assessment (PRRA) applications, as well as Humanitarian & Compassionate (H&C) ones.Read more ›
Have you submitted an immigration application, gotten a negative response, and cannot figure out why?Read more ›
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.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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