Humanitarian and compassionate (H&C) Applications
Foreigners in Canada who are at risk of facing some special hardships, should they go back to their country of citizenship or permanent residence, may apply for Canadian PR (permanent residency) on H&C (Humanitarian and Compassionate) grounds.
H&C applications are in-Canada requests where IRCC (Immigration, Refugees, and Citizenship Canada) may grant PR to a foreigner if there are compelling reasons to allow the applicant to live in Canada.
Typically, the H&C request is made by individuals inside Canada, who have no other way to remain, face hardships on return to their home country, or who face inadmissibility issues. However, the H&C provision can also be accessed by those outside Canada.
While the Minister ‘must’ (mandatory) consider requests made in Canada, the Minister ‘may’ (optional) consider such requests by individuals outside Canada.
There are two primary ways we make H&C requests on overseas applications:
- to overcome an admissibility issue on an existing application (eg. criminality or medical), or
- relying on H&Cs to overcome eligibility (eg. sponsoring a person who cannot otherwise be sponsored)
Section 25 of the Immigration and Refugee Protection Act
Section 25 is a very important provision in Canada's immigration Act. In 2015 the Supreme Court of Canada issued its most significant immigration judgment in almost twenty years, the Kanthasamy v. Canada (Citizenship and Immigration) decision. This decision changed the way officers assess applications for Canadian permanent residence on H&C grounds using a much more holistic approach.
The Kanthasamy decision determined that officers making determinations on H&C applications must consider and weigh all the relevant facts and factors and need not evaluate them against overly strict criteria as previously seen. It also noted that when assessing the interests of children, it is insufficient for officers to simply state they were taken into account; they must be "well-identified and defined" and examined in great detail.
Section 25 applies to both applicants who wish to come to Canada and to those who wish to remain in Canada but are ineligible for technical, medical or criminal reasons.
Section 25 of the IRPA (Immigration and Refugee Protection Act) permits an immigration officer to waive most immigration laws provisions if there is justification to do so on H&C grounds.
WHO MAY QUALIFY FOR H&C?
A person without legal status may qualify to apply for Canadian Humanitarian and Compassionate PR if they can demonstrate that they have established themselves in the country by virtue of factors, including:
- The adverse conditions in the person’s country of citizenship or residency
- Strong family ties to a Canadian citizen or permanent resident
- Health considerations including inability of a country to provide medical treatment;
- The best interests of any children directly affected by the H&C decision;
- Family violence considerations;
- Consequences of the separation of relatives;
- Inability to leave Canada has led to establishment (in the case of applicants in Canada);
- Any unique or exceptional circumstances that might merit relief.
- Consequences of the separation of relatives;
- Previous working experience in Canada generally without a work permit
- Any volunteer work they did in Canada
- How long the person has been in Canada
- Whether the conditions that made the person remain in the country were beyond their control
- Upgrade of French or English skills
- Whether the person and their family members in Canada have a good civil record
Persons with failed refugee claims may also apply for PR on humanitarian and compassionate grounds, particularly if at least 12 months have passed and a minor is involved. Moreover, a person who may qualify PR but IRCC found them inadmissible for reasons such as some legal barriers, or minor criminality may qualify to win Canadian residency under H&C grounds.
WHO MAY NOT QUALIFY TO APPLY FOR H&C?
There are some situations where a foreigner is not eligible to apply for residence on humanitarian and compassionate grounds. If an applicant falls under the following circumstances, Canada may reject their H&C application:
- Persons applying for PR status from outside Canada
- Persons we’ve already applied for Canadian temporary resident permit
- You have made multiple H&C applications at once
- Your refugee claim is still pending.
- You have received a rejection from IRB within the year of an H&C application.
HOW LONG DOES THE APPLICATION TAKE?
After submitting your PR application on humanitarian and compassionate grounds, the following step is often the hardest: waiting. Bear in mind that an H&C application is typically a slow process. Usually, the processing takes between 24 and 36 months.
However, the waiting time varies from case to case, and your case could take even longer. While you wait for a decision on your application, the Canadian government will allow you to remain in the country.
WHAT IF YOUR H&C APPLICATION IS REJECTED?
If you receive a negative position on your H&C application, you will have to leave Canada almost immediately. However, the Canadian immigration law allows you to appeal the decision.
You can file an appeal to the Federal Court. It would be better if you acted quickly as any time you waste at this stage will jeopardize your case. You only have 15 days to file a Judicial Review at the Federal Court of Canada.
The appeal process is a complex legal battle that requires the help of a skilled immigration Consultant.
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