Supreme Court Issues Decision in Kanthasamy

11th Dec 2015 Comments Off on Supreme Court Issues Decision in Kanthasamy

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.

H&C Applications

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.”

Kanthasamy

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,

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