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 ›
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:
(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.Read more ›
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.Read more ›
Many people are often try to sponsor an adult sibling only to learn that adult siblings (and adult children) are not eligible to be sponsored under the family class. However, in certain cases, such individuals may be eligible for humanitarian & compassionate grounds as de facto family members.Read more ›
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.
(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.Read more ›
According to CIC, during the past 12 months the approval rate for different application streams for permanent residence has been as follows:
Quebec Skilled Workers
Federal Skilled Workers (Pre-C-50)
Federal Skilled Workers (Post C-50)
Canadian Experience Class
Parents and Grandparents
Spouses & Partners
Family Class (Other)
Government Sponsored Refugees
Private Sponsored Refugees
FCH – Family Relations – H&C
90%Read more ›
Being a war deserter does not in of itself mean that either a refugee claim or an application for permanent residency based on humanitarian & compassionate (“H&C“) grounds will succeed.
On July 6, 2010,the Federal Court of Appeal (the “FCA“) released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)
Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war.” In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He was AWOL from the US army since his arrival in Canada. He originally claimed refugee status, a claim which was unsuccessful.
Mr. Hinzman then filed a Pre-Removal Risk Assessment (“PRRA“) and an application for permanent residence based on H&C grounds.
A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA. She found that:
[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.
Mr. Hinzman did not seek leave to apply for judicial review of the PRRA decision.
The Officer also rejected the H&C application. Mr. Hinzman sought leave to appeal of this decision. The Federal Court upheld the Appellant’s decision. However, it certified the following question:
Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?Read more ›
On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.
The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.Read more ›
“Every child is a dependent but not every dependent is a child”.
Individuals who apply for Canadian permanent residency can request that visa officers consider humanitarian & compassionate factors to exempt them from general immigration requirements. Such factors can include the best interests of children. Pursuant to Canada’s Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), the best interests of the child in a humanitarian & compassionate consideration context involves, for example, an assessment of the benefits a child would receive if a parent was not removed from Canada, in conjunction with an assessment of the difficulties the child would face if the parent was removed and the child remained in Canada, or if the child was to return to the parent’s country of origin with the parent.
Previously, the issue of whether the best interests of a child extended to adult dependents was unclear. Some decisions stated that the determining factor was whether an adult child was dependent on his or her parents. In Naredo v. Canada (Minister of Citizenship and Immigration), a 20-year old was determined to be a child under Canada’s Immigration and Refugee Protection Act (“IRPA“) because he was dependent on his parents. In Ramsawak v. Canada (Minister of Citizenship and Immigration),meanwhile, the Federal Court explicitly stated that the “mere fact a ‘child’ is over 18 should not automatically relieve an officer from considering his or her ‘best interests’”, and that the dependency of the individual on his/her parents is what matters.
However, in Saporsantos Leobrera v. Canada (Citizenship and Immigration) (“Saporsantos“) Justice Shore systemically and thoroughly criticized the principle that dependency determines whether one is a child.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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