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.
Distinguishing PRRA and H&C
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.
War Deserters, Refugee Status and H&C
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. Hinzman 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 … Read More
Joseph v. Canada and the Difficulty of H&C Assessments
I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question: What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected? The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary. Joseph v. Canada In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions: 1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act? 2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on … Read More
Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations
On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration). As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is: What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected? As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications. The Federal Court of Appeal Decision In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance. What is the nature of the risk, if any, to be assessed with respect to humanitarian … Read More
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 … Read More
Adult Children, Disabled Adults, and the Best Interests of the Child Analysis
“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) 2002 FCA 475), 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. The issue of whether the best interests of a child extends to adult dependents is somewhat unresolved. 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 … Read More
When You Don’t Understand the Reasons In the Visa Rejection Letter
Have you submitted an immigration application, gotten a negative response, and cannot figure out why?
H&C Applications: The Provincial Restriction
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: 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. 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 … Read More
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 … Read More