Humanitarian and Compassionate

 

You may use this application to apply for permanent residence from within Canada on humanitarian and compassionate grounds (H&C) if you:

  • are a foreign national currently living in Canada;
  • need an exemption from one or more requirements of the Immigration and Refugee Protection Act (IRPA) or Regulations in order to apply for permanent residence within Canada;
  • believe humanitarian and compassionate considerations justify granting the exemption(s) you need; and
  • are not eligible to apply for permanent residence from within Canada in any of these classes:
    • Spouse or Common-Law Partner;
    • Live-in Caregiver;
    • Protected Person and Convention Refugees; and
    • Temporary Resident Permit Holder.

Discretion is a valuable element of Canada’s immigration program. It benefits our clients and is consistent with the objectives of IRPA. The purpose of H&C discretion is to allow flexibility to approve deserving cases not covered by the legislation. Use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act. The H&C decision-making process is a highly discretionary one that considers whether a special grant of an exemption from a requirement of the Act is warranted. Invoking A25 and A25.1 is an exceptional measure and not simply an alternate means of applying for permanent resident status in Canada.

A humanitarian and compassionate assessment considers circumstances and/or factors that may be sufficiently compelling to allow for the requested exemption.

  • Eligibility to submit an H&C application
  • The assessment of hardship
  • Intake of applications for family members
  • Children – Best interests of a child
  • Processing Applications from within Canada
  • Processing Applications from outside Canada
  • Inadmissible applicants
  • Fees

Eligibility to submit an H&C application

Foreign nationals who are inadmissible or who do not meet the requirements of the Act or Regulations may make a written request for consideration under A25(1).

You may apply for permanent residence from within Canada on humanitarian and compassionate grounds (H&C) if you:

  • are a foreign national currently living in Canada; and
  • need an exemption from one or more requirements of the Immigration and Refugee Protection Act (IRPA) or Regulations in order to apply for permanent residence within Canada; and
  • believe you would experience unusual and undeserved or disproportionate hardship if you are not granted the exemption you need; and
  • are not eligible to apply for permanent residence from within Canada in any of these classes:
    • Spouse or Common-Law Partner,
    • Live-in Caregiver,
    • Protected Person and Convention Refugees,
    • Temporary Resident Permit Holder.

There are some restrictions with respect to examination of applications for H&C consideration including:

 are a Canadian citizen or a permanent resident

  • have submitted an H&C application for which a decision has not been made
  • have an outstanding refugee claim
    • had a refugee claim that was rejected (including claims that were abandoned) within the last 12 months by either the Refugee Protection Division or the Refugee Appeal Division of the IRB
    • withdrew a refugee claim within the last 12 months, unless the claim was withdrawn before your hearing at the IRB.
  • became a designated foreign national within the last 5 years

The assessment of hardship

The assessment of hardship in an H&C application is a means by which CIC decision makers determine whether there are sufficient H&C grounds to justify granting the requested exemption(s). The criterion of “unusual, undeserved or disproportionate hardship” has been adopted by the Federal Court in its decisions, which means that these terms are more than mere guidelines. 

In many cases the hardship test will revolve around the requirement to apply for a permanent residence visa before entering Canada.  In other words, would it be a hardship for the applicant to leave Canada in order to apply abroad.  Applicants may, however, request exemptions from other requirements of the Act and Regulations. In such cases, the test is whether it would be a hardship for the applicant if the requested exemption is not granted.   Individual H&C factors put forward by the applicant should not be considered in isolation in a determination of the hardship that an applicant would face; rather, hardship is determined as a result of a global assessment of H&C considerations put forth by the applicant. In other words, hardship is assessed by weighing together all of the H&C considerations submitted by the applicant.

Factors that may be considered 

  • establishment in Canada
  • an inability to leave Canada that has led to establishment
  • ties to Canada
  • best interests of any children affected by your application (see following section for more information)
  • health considerations
  • family violence considerations
  • consequences of your separation from relative
  • factors in your country of origin (not related to seeking protection)
  • any other relevant factors you wish to have considered that are not related to seeking protection.

Intake of applications for family members

Spouse or common-law partner in Canada class (SCLPC): SCLPC applicants who do not satisfy the SCLPC eligibility requirements set out in R124(a) and (c) may request H&C consideration. Such applications will be processed under H&C and not as members of the SCLPC class.

Lock-in age for dependent children: The lock-in date for determining eligibility of dependent children is the date that a completed H&C application is received by CIC, including correct processing fees. Dependent children must be under 19 years of age and not a spouse or common-law partner when the application is received (Under 19 years means up to and including the last day before the dependent child’s nineteenth birthday).

Children – Best interests of a child

You must take into account the best interests of a child (BIOC) who is directly affected by an H&C decision.  This applies to children under the age of 18 years.

You must always be alert and sensitive to the interests of children when examining A25(1) requests through identification and examination of all factors related to the child’s life.  It must be sufficiently clear from the material submitted that an application relies in whole, or at least in part, on this factor. An applicant has the burden of justifying the basis of their H&C submission. For some applicants, it can be difficult to express themselves in writing and it may be warranted to invite the applicant to an interview. If an applicant provides insufficient evidence to support the fact that best interests of a child is a factor you may conclude that the grant of the exemption is not justified.

The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. While factors affecting children should be given substantial weight, the best interests of a child is only one of many important factors that you need to consider when making an H&C decision that directly affects a child.

A decision on an H&C application must include an assessment of the best interests of any child directly affected by the decision. “Any child directly affected” in this context means a Canadian or foreign-born child (and could include children outside Canada).

The relationship between the applicant and “any child directly affected” need not necessarily be that of parent and child, but could be another relationship that is affected by the decision. For example, a grandparent could be the primary caregiver who is affected by an immigration decision that would in turn affect the child.

The outcome of a decision under A25(1) that directly affects a child will always depend on the facts of the case. Consider all evidence submitted by an applicant in relation to their A25(1) request. The following guidelines are not an exhaustive list of factors relating to children, nor are they necessarily determinative of the decision. Rather, they are meant as a guide and illustrate the types of factors that are often present in A25(1) cases involving the best interests of a child. As stated by Madame Justice McLachlin of the Supreme Court of Canada, “The multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and certainty.”

Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to:

  • the age of the child
  • the level of dependency between the child and the H&C applicant
  • the degree of the child’s establishment in Canada
  • the child’s links to the country in relation to which the H&C assessment is being considered
  • the conditions of that country and the potential impact on the child
  • medical issues or special needs the child may have
  • the impact to the child’s education
  • matters related to the child’s gender.

The facts surrounding a decision under A25(1) may sometimes give rise to the issue of whether the decision would place a child directly affected in a situation of risk. This issue of risk may arise regardless of whether the child is a Canadian citizen or foreign-born.

Once it has been determined that an applicant is eligibile to have an application assessed, the H&C application is processed in two stages:

  • a humanitarian and compassionate  assessment of the requested exemptions (Stage 1)
  • final decision on the permanent residence application (Stage 2).

Processing in-Canada applications

Once it has been determined that an applicant is eligibile to have an application assessed, the H&C application is processed in two stages:

A humanitarian and compassionate assessment of the requested exemptions (Stage 1)

Final decision on the permanent residence application (Stage 2).

Stage 1 procedures for:

All Applicants: Assessment of exemption requests at Stage 1

When you are assessing an exemption request keep the following in mind:

  • The objectives of the Act.
  • Consider exempting any applicable criteria or obligation of the Act, including inadmissibilities (except A34, A35, A37 inadmissibilities if the application is received after June 19, 2013), when the foreign national has specifically requested an exemption or when it is clear from the material that the foreign national is seeking an exemption.
  • Assess the applicants’ submissions in light of all the available information, taking into consideration all known inadmissibilities.
  • Conduct a comprehensive assessment by weighing all the relevant factors in an application to determine whether H&C considerations justify the grant of the requested exemption.
  • The weight given to any factor in a case is an objective determination of the decision-maker. You must weigh the facts in a fair and impartial manner, considering both positive and negative elements. You must determine which facts are most important, which evidence is the most persuasive, which argument is the most compelling or convincing, and why.
  • Separate facts that favour a finding of hardship from those that do not.
  • Determine which facts have been established on balance of probabilities and which statements are supported by the submissions.
  • Determine whether the facts establish that the applicant would face hardship if they were not granted the requested exemption or permanent residence.
  • Explain in the H&C decision why one piece of evidence was preferred over another. Focus on the evidence that is directly applicable to making a decision or that is particularly significant to support the decision. It is not necessary to mention every piece of evidence supplied by the applicant.
  • If credibility is central to the decision, interview the applicant.
  • When extrinsic information is considered, inform the applicant and provide them with a chance to respond.

Spouses and common-law partners

Marriage or the existence of a common-law relationship is not automatically considered sufficient grounds for a positive humanitarian and compassionate decision, neither is a physical separation of the couple. There are no determinative factors when processing an H&C application. While a marriage or the existence of a common-law relationship is an important factor to consider, you must take into consideration all the factors of the case before deciding whether or not to grant an exemption. You should consider the consequences of separation on the relationship and other family members.

If an applicant who applies for H&C has an outstanding Spouses and Common-law partners in Canada Class (SCLPC) application (without an H&C request), do not assess the H&C request.

Post-removal assessment

If the Stage 1 assessment cannot be done before an applicant’s removal from Canada, it will be done after the removal. In such cases:

  • The onus is on the applicant to provide submissions. You do not need to request updated submissions from applicants, including those who have been removed while their H&C application is pending.
  • If the applicant made further submissions concerning their current circumstances post-removal, you must consider those submissions.
  • In the absence of submissions from the applicant post-removal, you should consider the case the way it was presented pre-removal considering the usual H&C factors such as establishment in Canada, best interest of the child, etc. The fact that the applicant has been removed should not prejudice the merits of the application.
  • Do not request that an applicant attend an interview in Canada. If an interview is required and it cannot be done before removal, it may be done via telephone or Skype.
  • Advise the applicant of the decision.

Post-removal assessment

If the Stage 1 assessment cannot be done before an applicant’s removal from Canada, it will be done after the removal. In such cases:

  • The onus is on the applicant to provide submissions. You do not need to request updated submissions from applicants, including those who have been removed while their H&C application is pending.
  • If the applicant made further submissions concerning their current circumstances post-removal, you must consider those submissions.
  • In the absence of submissions from the applicant post-removal, you should consider the case the way it was presented pre-removal considering the usual H&C factors such as establishment in Canada, best interest of the child, etc. The fact that the applicant has been removed should not prejudice the merits of the application.
  • Do not request that an applicant attend an interview in Canada. If an interview is required and it cannot be done before removal, it may be done via telephone or Skype.
  • Advise the applicant of the decision.

Consecutive H&C applications

If an applicant had an H&C assessment and submits a new application, information and findings from any previous H&C application may be taken into account. You must also consider any new information submitted with the most recent application.

Concurrent applications for H&C and PRRA

If an applicant submits both an H&C and a PRRA application, both assessments may be done concurrently.

Assessment of applications for H&C versus PRRA

An H&C assessment is lower in threshold than PRRA and is not limited to the PRRA’s specific legislative parameters of persecution: Risk to life, torture and cruel and unsual treatment or punishment. For an H&C application, you assess allelements of the application and decide if factors amount to unusual and undeserved or disproportionate hardship.

Processing applications from outside Canada

This section explains how to process applications for permanent residence when an applicant who is outside Canada makes a request for consideration under humanitarian and compassionate grounds.

Assessing the application

Requests for H&C must be reviewed on a case-by-case basis. Applicants are free to make submissions on any aspect of their personal circumstances that they believe are relevant to their request for H&C consideration.

Initial assessment: the H&C assessment

You must assess the eligibility of the applicant under one of the three immigration classes. If the applicant does not meet the requirements of the class in which the application was made, you may consider the H&C request, except in the case of Ministerial Instructions.

The decision maker assesses H&C grounds and decides, in light of all the circumstances of a case, whether or not to grant the requested exemption(s) from the requirements of IRPA/IRPR, including R70(1). The applicant bears the onus of satisfying the decision maker that the H&C factors of their individual circumstances are sufficient to warrant an exemption. Consider the applicant’s submissions in light of all the information known to the Department.

If you believe that the granting of an exemption is warranted but you are not the delegated decision maker, refer the case to the delegated decision maker.

Final decision: the issuance of a permanent resident visa

If a positive H&C decision is made, the applicant must still satisfy the remaining requirements for a permanent resident visa including medical, criminal records checks and security screening. The applicant must not have an inadmissibility for which no exemption has been granted. If a new inadmissibility is found, the applicant may request an exemption, the decision maker may use the Minister’s initiative, or the application may be refused.  Once all requirements are met, a permanent resident visa may be issued.

Inadmissible Applicants

Foreign nationals who are inadmissible may submit an H&C application to overcome their inadmissibility, except in certain circumstances. The Minister or his delegated authority may grant an exemption from the inadmissibility if they are of the opinion that it is justified by H&C considerations.

When to consider an exemption for an inadmissibility

Inadmissibilities should be considered at the stage at which they are known by the decision maker and in the overall context of the H&C factors put forward by the applicant. In other words, determine whether the H&C factors are sufficient to warrant a waiver of the inadmissibility. Any known inadmissibility should be assessed and the exemption granted, refused or the case referred to the delegated decision maker for consideration of an exemption.

Example:  an applicant requests an exemption from a medical inadmissibility. As the decision maker knows about the inadmissibility at the time of the Stage 1 assessment, they must consider granting an exemption from the medical inadmissiblty at that time.

When more than one exemption is required, and there is more than one delegated decision maker, then the higher authority should decide on all inadmissibilities.

There are different procedures for specific inadmissibilities:

  • Criminal inadmissibility
  • Medical inadmissibility
  • Inadmissibility of family members
  • Financial inadmissibility – social assistance

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