Last Updated on November 25, 2020 by Steven Meurrens

Section 25 of Canada’s Immigration and Refugee Protection Act provides that applicants can seek humanitarian & compassionate relief from the harsh application of other portions of Canadian immigration legislation.

When the IRPA was created s. 25 was short two paragraphs, and read:

25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, 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.

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.

In 2020, s. 25 is much longer, and reads:

25 (1) 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 — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — 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.

Restriction — designated foreign national

(1.01) A designated foreign national may not make a request under subsection (1)

(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which they become a designated foreign national.

Suspension of request

(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated foreign national is suspended

(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;

(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or

(c) in any other case, until five years after the day on which they become a designated foreign national.

Refusal to consider request

(1.03) The Minister may refuse to consider a request under subsection (1) if

(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and

(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).

Payment of fees

(1.1) The Minister is seized of a request referred to in subsection (1) only if the applicable fees in respect of that request have been paid.

Exceptions

(1.2) The Minister may not examine the request if

(a) the foreign national has already made such a request and the request is pending;

(a.1) the request is for an exemption from any of the criteria or obligations of Division 0.1;

(b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division;

(b.1) the foreign national made a claim for refugee protection that was determined to be ineligible to be referred to the Refugee Protection Division and they made an application for protection to the Minister that is pending; or

(c) subject to subsection (1.21), less than 12 months have passed since

(i) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review, or

(ii) in any other case, the latest of

(A) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred,

(B) the day on which the foreign national’s claim for refugee protection was rejected or determined to be withdrawn — after substantive evidence was heard — or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and

(C) the day on which the Federal Court refused the foreign national’s application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim for refugee protection.

Exception to paragraph (1.2)(c)

(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national

(a) who, in the case of removal, would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care; or

(b) whose removal would have an adverse effect on the best interests of a child directly affected.

Non-application of certain factors

(1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.

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.

2001, c. 27, s. 25 2008, c. 28, s. 117 2010, c. 8, s. 4 2012, c. 17, s. 13 2013, c. 16, ss. 9, 36, c. 40, s. 2912019, c. 29, s. 303
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 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.

2010, c. 8, s. 5 2013, c. 16, s. 10
Public policy considerations

25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.

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 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.

Conditions

(4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the Minister.

2010, c. 8, s. 5 2012, c. 17, s. 14

Subramaniam v. Canada (Citizenship and Immigration), 2020 FCA 202

Currently, as a general rule, foreign nationals who apply to enter or remain in Canada must satisfy an officer that they are not inadmissible and meet the requirements of Canadian immigration legislation.  Section 25 of the IRPA continues to provide for most applicants that if they do not meet the requirements of the Act or if they are individual that they can request that they nonetheless be granted status under humanitarian & compassionate considerations.

Foreign nationals and permanent residents who are inadmissible to Canada under ss. 34, 35 and 37 of the IRPA, howeverare excluded from this. These sections include inadmissibility for security, terrorism, espionage, human rights violations, organized crime and other serious grounds.

Prior to 2013, persons found inadmissible for such matters could avail themselves of the H&C exemption laid out in subsection 25(1) of the IRPA.  However, the 2013 enactment of Bill C-43: An Act to Amend the Immigration and Refugee Protection Act (Faster Removal of Foreign Criminals Act) (Bill C-43) ended this.

In Subramaniam v. Canada (Citizenship and Immigration), 2020 FCA 202 the Federal Court of Appeal had to answer the following certified question:

Where a foreign national has previously been determined to be inadmissible pursuant to s. 34, 35 or 37 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), and there has been a subsequent change to the interpretation of the ground of inadmissibility, is the foreign national barred from making an application under s. 25(1) of the Act?

The Federal Court of Appeal answered yes. In other words, once an individual is found to be inadmissible to Canada for s. 34, 35 or 37, even if there is a change in the law that impacts that previous inadmissibility finding, they are barred from making an application under H&C.