On December 10, 2015, the Supreme Court of Canada issued its most significant immigration judgment in almost twenty years. Its decision in Kanthasamy v. Canada (Citizenship and Immigration) will likely result in visa officers assessing applications for Canadian permanent residence on humanitarian & compassionate grounds in a much more holistic and equitable manner than previously.
People who would not normally be eligible to become permanent residents in Canada may apply to immigrate on humanitarian & compassionate (“H&C”) grounds. A typical H&C applicant is someone who does not meet the requirements of any of Canada’s economic or family reunification programs. As well, applicants who do qualify for more traditional immigration programs, but who are inadmissible to Canada, may also request (with narrow exceptions) that their inadmissibility be waived for H&C reasons.
When visa officers review H&C applications, they analyze several factors, including the person’s establishment in Canada, their family ties to Canada, the best interests of any children involved, and what could happen to the applicants if their H&C applications are not granted.
Prior to Kanthasamy, the criterion for an H&C application was whether applicants would suffer “unusual and undeserved or disproportionate hardship” if their applications were refused. Indeed, Citizenship and Immigration Canada’s guidelines on numerous occasions explicitly instructed officers that the assessment of a H&C application was a determination of whether the applicant met this test. “Unusual and undeserved hardship” was defined as hardship that was not anticipated or addressed by immigration legislation, and was “beyond the person’s control.” “Disproportionate hardship” was defined as an “unreasonable impact on the applicant due to their personal circumstances.”
In Kanthasamy, the Supreme Court of Canada found that while immigration officers should treat the “unusual and undeserved or disproportionate hardship” factors described above as descriptive, they do not crate three new thresholds for relief, each of which must be met by applicants. Rather, officers are to analyze applications holistically to simply determine whether there are sufficient H&C considerations to warrant approval.
To be clear, Kanthasamy does not stand for the proposition that any positive H&C factors will automatically lead to an approval. Indeed, the Supreme Court of Canada explicitly reaffirmed that hardship alone will not generally be sufficient to warrant relief on H&C grounds, nor are H&C applications meant to duplicate refugee proceedings.
Rather, Kanthasamy stands for the proposition that officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them, and not be found be evaluating them against overly rigid and strict criteria.
As well, the Supreme Court clarified that immigration officers considering the hardship of potential discrimination against a person who was returned to his/her country of origin should not be overly narrow in how they assess the discrimination. H&C consideration may be warranted where discrimination could manifest itself in isolated or systemic incidents, and an applicant only needs to show that he/she would likely be affected by adverse conditions back home. As well, the Supreme Court reiterated that where an applicant is a member of a group that is typically discriminated against in his/her home country, it is reasonable to infer that the applicant will face discrimination and hardship, and positive H&C consideration may be warranted.
Finally, in Kanthasamy the Supreme Court of Canada further reminded visa officers that when considering the best interests of children that it is insufficient for officers to simply state that the children’s interests were taken into account. Rather, the interests of children must be “well identified and defined” and examined “with a great deal of attention” in light of all the circumstances The test for officers when assessing children is not hardship, but rather what their best interests are.
Kanthasamy re-introduces and re-affirms that visa officers have the equitable discretion to holistically determine whether there are sufficient H&C grounds to warrant approval, and that Citizenship and Immigration Canada cannot bind them to an overly rigid standard. It is vague, however, on how officers are to actually assess H&C applications. In Kanthasamy, the dissenting Supreme Court justices cautioned that the decision appears to have watered down the stringency of the H&C assessment, and that equitable relief might now be granted in cases which simply arouse strong feelings of sympathy in visa officers. Although it is too early to determine the accuracy of their prediction, applicants submitting H&C applications should be grateful that their applications are being assessed post-Kanthasamy in a much more holistic manner than they may otherwise have been.