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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Joseph v. Canada and the Difficulty of H&C Assessments

12th Aug 2015 Comments Off on 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 removal are not those generally faced by others in their country of origin?

3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration),

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Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations

11th Aug 2015 Comments Off on Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations

On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration).

As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is:

What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration 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?

As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications.

The Federal Court of Appeal Decision 

In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance.

What is the nature of the risk, if any, to be assessed with respect to humanitarian and compassionate considerations under section 25 of IRPA, as amended by the Balanced Refugee Reform Act?

The Federal Court of Appeal answered as follows:

Matters such as well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment – factors under sections 96 and 97 – may not be considered under subsection 25(1) by virtue of subsection 25(1.3).

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The Best Interests of a Child

5th Feb 2011 Comments Off on The Best Interests of a Child

Yesterday, an individual called wanting to know if the fact that she was pregnant would guarantee a successful H&C application because of the duty to consider the “best interests of the child.” The father is Canadian.

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