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.
2A-2020-95301_Release package
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 COVID-19. In Mohammed v. Canada (Citizenship and Immigration), 2022 FC 1, Justice Ahmed made a statement about COVID-19 front-line workers in the humanitarian & compassionate context. He wrote:
At a time when most people in Canada were staying at home to avoid the spread of COVID-19, frontline workers were risking their own health to provide essential services. This includes those who worked tirelessly in long-term care homes that saw frequent COVID-19 outbreaks and many deaths. The evidence before the IAD in this appeal included evidence demonstrating the heavy toll COVID-19 has taken on female immigrants working in health care.
An employment letter on the record states that the Applicant has been employed at the Bethany Care Society since December 7, 2020 and is currently working as a Health Care Aide at Bethany Airdrie, a long-term care facility in Airdrie, Alberta. The letter states that the Applicant ““[…] maintains casual employment at Bethany with the ability to pick up additional shifts.”” As counsel for the Applicant aptly pointed out during the hearing, there was nothing casual about working at a long-term care facility during those times. This same facility was hit with a COVID-19 outbreak in early January 2021. Evidence before the IAD shows that on January 4, 2021, Bethany Airdrie reported 40 cases at the facility, including 19 employees and 21 residents, and the deaths of two residents from COVID-19. The entire facility remained under lockdown during this time.
As a health care aide, the Applicant risked her own health and safety to support health-compromised and aging individuals. She is applying the very skills she acquired in Canada over a decade ago at a time when they are desperately needed, while not knowing if she herself will be able to stay in Canada. To frame this commitment and these contributions as only a ““moderately positive”” factor in the Applicant’s appeal is unintelligible.
The moral debt owed to immigrants who worked on the frontlines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be understated. I do not find that the IAD gave this contribution the weight it deserved.
The Ordinary Operation of the Law
In Kashyap v Canada (Citizenship and Immigration), 2022 FC 961, Justice Diner addressed comments made by an officer in an H&C decision, noting:
Furthermore, the remark about paying deference to the law and statutes of Canada suggests a significant misapprehension of the Officer’s role in evaluating a s 25(1) application, which is not to simply pay deference to the ordinary operation of the law, but to weigh and consider whether H&C considerations warrant a flexible and responsive exception thereto (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, at para 19 [Kanthasamy]).
First and foremost, the raison d’être of the H&C exemption is to overcome non-compliance or other obstacles posed by immigration rules, by offering equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Kanthasamy at para 21, citing Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338 at p 350).
There were compassionate circumstances here that the Applicant submitted but the Officer simply did not address, instead reciting a need to be deferential to the law – which, again, includes an exception contained in s 25(1) of the Act. The Officer is owed significant deference in making this highly discretionary determination, but not to the point of failing to weigh all the relevant facts and factors before them (Kanthasamy at para 25).
Discrimination
In Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 Justice Abella, writing for the majority, stated that direct evidence is not necessary to establish potential discrimination and related hardship. She wrote:
The Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in Sri Lanka against young Tamil men. She also accepted evidence that there was discrimination against Tamils in Sri Lanka, particularly against young Tamil men from the north, who are routinely targeted by police. In her view, however, young Tamils are targeted only where there is suspicion of ties to the Liberation Tigers of Tamil Eelam, and the government had been making efforts to improve the situation for Tamils. She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”.
This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633.
Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38.
Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discrimination that does not require evidence that the applicant will be personally targeted:
5.16. [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered
While [ss. 96 and 97] factors may not be considered, the decision-maker must take into account elements related to the hardships that affect the foreign national. Some examples of what those “hardships” may include are: […]
• discrimination which does not amount to persecution; […]
• adverse country conditions that have a direct negative impact on the applicant. […]
Discrimination
Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to that individual.
In Andrews, [the] Court wrote:
“Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”
(Inland Processing, s. 5.16)
In Kaur v. Canada (Citizenship and Immigration), 2022 FC 1483, Justice Brown reiterated that it is contrary to Kanthasamy to require that applicants provide corroroborating evidence that they would experience discrimination.
While there is a split in the jurisprudence on this, in Al-Aswadi v. Canada (Citizenship and Immigration), 2022 FC 1623, Justice Favel noted that:
To reiterate, it is an error for an officer to limit their assessment of hardship in an applicant’s home country to hardship connected to a personal characteristic. This error confuses the criteria applicable to an H&C application under subsection 25(1) of IRPA with those that define a person in need of protection under subsection 97(1) of IRPA (Marafa at para 4; Quiros v Canada (Citizenship and Immigration), 2021 FC 1412 at paras 30-31; Aboubacar v Canada (Citizenship and Immigration), 2014 FC 714 at para 4).
Ad-Hoc H&C Requests
As Justice Manson noted in Aryan v. Canada (Citizenship and Immigration), 2022 FC 152, while ordinarily H&C applications take the form of a parallel application accompanying a permanent residence application, H&C requests made ad hoc in the course of other imigration applications must be considered.
However, as noted in Hamzei v. Canada (Citizenship and Immigration), 2023 FC 1057, there must be a clear request for H&C relief.
Criminality
In assessing whether there are sufficient H&C factors to supersede criminal inadmissibility officers must weigh compassionate factors against the severity of the offence. There must be analysis, rather than a conclusory statement.
In Kalaba v. Canada (Citizenship and Immigration) 2023 FC 1390, Madam Justice Elliot stated:
To illustrate this error, I find it helpful to draw a comparison with the reasons given by an officer in another H&C matter involving criminality in the USA: Khokhar v Canada (Citizenship and Immigration), 2018 FC 555 at paras 32-34 [Khokhar]:
[32] Mr. Khokar also argues that it was unreasonable for the Officer to focus upon the Applicant’s criminal history without considering aspects of that history which mitigated its severity, such as remorsefulness, rehabilitation, the unlikelihood of recidivism, and the fact that no custodial sentence was imposed for the offence committed in Canada.
[33] In the Decision, the Officer provides a list of Mr. Khokar’s inadmissibilities, including having been found to have engaged in misrepresentation, having been convicted of aggravated discharge of a firearm in the United States with a sentence of imprisonment of four years, and having been convicted in Canada in November 2009 of assault with a weapon resulting in a suspended sentence, 32 days pre-sentence custody, 2 years concurrent probation, and a 19-year order of prohibition. In considering Mr. Khokar’s submissions, the Officer states as follows:
Counsel states that the applicant’s criminal convictions in the USA occurred over 20 years ago and he is remorseful for misrepresenting his life in the USA and in failing to tell the truth about his convictions. Counsel further notes that the applicant’s only other conviction was as a result of a domestic dispute with his wife in 2009 and he pled guilty to a number of domestic assault charges arising out of a single altercation with his wife. I sympathize with the applicant with his remorsefulness and also acknowledge counsel’s reference to many couples having their “ups and downs”. However, I find that such factors cannot excuse the applicant of responsibility for his offending and further note the gravity of the offences. I observe that as a result of the crimes incarceration sentences were imposed, namely a four year imprisonment in the USA which reflects the severity of the crimes.
[34] These portions of the Decision demonstrate an understanding of Mr. Khokar’s arguments surrounding remorse and rehabilitation, as well as the custodial and non-custodial sentences that were imposed, respectively, in the United States and Canada. I find no basis to conclude that the Officer treated Mr. Khokar’s criminal history and misrepresentation unreasonably in arriving at the decision to refuse the H&C application.
As stated by Mr. Justice Southcott, the reasons demonstrate an understanding of the Applicant’s arguments beyond a reiteration of the criminal history. In Khokar, the Applicant was also incarcerated in the USA because of convictions over 20 years ago. While the offences differ greatly in nature, I draw these parallels to show how an officer might demonstrate a level of transparency and justification for their conclusion. The gravity of the offences of assault with a weapon and a domestic assault was explicitly identified. A four-year sentence involving incarceration was reasoned to be indicative of the severity of crimes. The length of time that has elapsed since the offences was considered. In tandem, the reasons form a rational chain of logic that led to the officer’s conclusion as now required by Vavilov.
In stark contrast, the Officer in the case at bar, canvasses the various factors and states a conclusion. The Officer summarizes the Applicant’s past convictions and concludes “[a]lthough the Applicant expresses remorse for his actions, and has successfully completed the Day Withdrawal Program at St. Michael’s, I am not satisfied that these factors outweigh the Applicant’s criminal history.” There is no analysis. There are virtually no reasons to demonstrate how the Officer arrived at such a conclusion. Put simply, there is a “what”, but no “why”. This error was best described by Justice Mactavish in Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 at paragraph 14:
[14] In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.
The Global Catch-All Statement
Sometimes in assessing H&C applications visa officers will write:
I have reviewed all of the information presented by the applicant, including the updated submissions and I am not satisfied that the applicant’s humanitarian and compassionate factors justify an exemption from the requirement to be admissible.
In Wahyudini v. Canada (Citizenship and Immigration), 2024 FC 350 Madam Justice Azmudeh affirmed that such catch all statements do not replace the requirement that officers demonstrate that they meaningfully considered the evidence in an application.
Exceptionality
In Hugnu v. Canada (Citizenship and Immigration), 2024 FC 540, the Federal Court reiterated that Kanthasamy did away with the high threshold of exceptionality.