Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities. H&C applications may be based on a number factors, including: establishment in Canada; ties to Canada; the best interests of any children affected by their application; factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not related to a fear of return based on refugee determination factors; health considerations; family violence considerations; consequences of the separation of relatives; inability to leave Canada has led to establishment; and/or any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors. The purpose of this post is to focus on the establishment factor. Establishment in Canada Immigration, Refugees and Citizenship Canada’s Guidelines (the “Guidelines“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions: Does the applicant have a history of stable employment? Is there a pattern of sound financial management? … Read More
Restrictions on H&C
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 … Read More
Cessation of Refugee Status
There are 2 ways that refugee protection can be removed. A person can cease to hold their refugee status if, for example, they voluntarily reavail themselves of the protection of their country of nationality or obtain protection from another country. They can also have their refugee status vacated if they obtained that status by directly or indirectly misrepresentating or withholding material facts relating to a relevant matter. Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when: Rejection 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; (b) the person has voluntarily reacquired their nationality; (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or (e) the reasons for which the person sought refugee protection have ceased … Read More
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
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, … 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
The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases
On April 25, I blogged about how the Federal Court had certified the following question involving s. 117(9)(d) of the Immigration and Refugee Protection Regulations (“R179(9)(d)”): In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? On June 11, 2013, in Fang v. Canada (Citizenship and Immigration) (“Fang“), VB2-00332, Member Mattu of the Immigration Appeal Division (the “IAD“) issued a decision which raises similarly broad issues. Andrew Wlodyka, the appellant’s counsel, has informed me that an Application for Leave to Commence Judicial Review is currently underway, as confirmed here, and I wouldn’t be surprised if the litigation resulted in a certified question. The issue is whether the IAD has the jurisdiction to determine whether an officer breached procedural fairness in determining humanitarian … 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
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