I wish to immigrate to Canada but I do not qualify under any class. May I still be granted a Canadian permanent resident status?
Certain foreign nationals who wish to immigrate to Canada but are not qualified under any class, may still be granted a permanent resident status. This is possible so long as there are compelling humanitarian and compassionate (H&C) grounds.
H&C consideration is rooted from A25 and A25.1 of the Immigration and Refugee Protection Act (IRPA). Under this provision, applicants may manifest their submissions relating to their personal circumstances which they believe are relevant and compelling for them to be granted permanent residency based on H&C grounds.
Specifically, I am residing outside Canada and I do not qualify in any specific class under the IRPR. Can I still also apply for permanent resident status?
In general, it is only through legislation that foreign nationals acquire the right to apply for permanent residence in Canada. Those who do not qualify must request an exemption grant from the requirements needed to be a member of a specific class under the IRPR.
This is where the H&C considerations enter the picture. This provision allows flexibility in granting those exemptions in order to pave the way for approving deserving cases that were unanticipated by the current legislation. A person can request for a humanitarian and compassionate consideration when applying for permanent residence outside Canada too but only if they have a connection with Canada.
What is the main purpose behind H&C consideration?
The main objective as to the implementation of H&C discretion is for purposes of allowing flexibility in terms of approving cases. These cases pertain to those who are deserving but are not, unfortunately, covered by applicable legislation. It is available for those people who made Canada their home but unable to apply for permanent residency through other programs.
As an applicant, what do I have to do in order to apply under H&C consideration?
The applicant has to demonstrate that they have compelling reasons for remaining in Canada. Depending on the individual circumstances, the H&C consideration can be granted based on their establishment, family ties in Canada, best interest of children involved and/or hardship if returned to the home country (do not mix with the reasons for claiming a refugee status), among other reasons.
How are H&C cases decided upon?
The decision process involved in H&C consideration is highly discretionary. The main consideration is whether or not a special exemption from the requirements of IRPA should be granted to a deserving applicant. This is an extraordinary measure or remedy resorted to when applying for permanent residency in Canada.
A thorough and comprehensive assessment is done in order to get a complete picture of the factors and circumstances that may suffice granting of the requested exemption by the applicant.
In all H&C cases, a balance between consistency and flexibility to handle certain facts of a case must be achieved. For example, decision-makers can be guided as to how to best exercise their discretion while keeping the legislative intent at the same time by having access to certain helpful documents. Some of these documents that can aid these decision-makers include policy statements, manuals, handbook and guidelines appurtenant to the main legislation.
Who is eligible to apply under the H&C program?
An applicant may opt to apply for permanent residence to Canada based on H&C grounds if he or she:
- Is a foreign national currently residing in Canada;
- Needs an exemption from one or more of the requirements provided by IRPA;
- Has a well-founded belief that humanitarian and compassionate circumstances exist that can justify the granting of exemptions;
- Is not eligible as an applicant for permanent residence under these classes:
1. Spouse, common or conjugal partner;
2. Caregiver;
3. Protected persons and refugees;
4. Temporary resident status holders.
Who may not be eligible to apply under the H&C program?
An applicant is ineligible to apply for H&C consideration if he or she:
- Is a Canadian citizen;
- A permanent resident;
- Has submitted an H&C application, the decision of which is still pending;
- Has made a refugee claim and is still pending decision;
- Within the last 5 years, became a designated foreign national.
What are my responsibilities as an applicant in H&C applications?
The burden of bearing the responsibility is wholly upon the applicant. This responsibility involves outlining accurately and in a detailed manner, any and all H&C factors which they personally believe to be relevant to their application and clearly explaining why they should be granted permanent residency.
Applicant must also establish that they will not be a burden to the Canadian society and in this light, consideration is given to the applicant’s resources, support and/or employment opportunities that may be or being provided by their Canadian contacts.
What is the standard of proof required in H&C applications?
Background checks and fact finding are performed in line with the commonly used and legally recognized standard of proof known as “balance of probabilities”. This standard of proof poses the question: whether or not the information presented is more likely to be true?
Officers should use the appropriate standard of proof when it comes to assessing all facts listed down in the application and deciding whether or not to grant permanent resident status to an applicant, as justified by humanitarian and compassionate considerations.
I am being required to leave Canada but I no longer possess any personal, social and employment connections back in my home country. Can this be considered in my H&C application?
The determination whether sufficient grounds to justify granting an H&C request do exist will definitely include an assessment of hardship.
The fact to consider is the actual extent to which under the given circumstances, an applicant would face hardship should they be required to leave Canada. For example, the applicant does no longer possess any personal, social and/or employment connections with his home country. While it is true that being required to leave Canada will inevitably lead to some hardship, however, this circumstance alone will not warrant relief on H&C grounds enumerated under the law and the Applicant has to prove it to the Officer issuing the decision.
Are refugee protection claims within the scope of H&C program?
The decision-makers do not determine whether there is a well-founded risk to life, of unfavorable treatment or punishment, an impending danger of torture or inhumane treatment, or fear of persecution. These considerations are taken into account during the refugee protection claims and are not the scope of the H&C program. However, these underlying facts may be taken into account when said decision makers determine whether an applicant will face hardship should they return to their country of origin.
Can inadmissibilities be waived under the H&C assessment?
Decision-makers should determine whether H&C considerations exist in a given case that will suffice to justify a waiver of inadmissibility. If H&C considerations are not sufficient, the application should be denied. But if in their opinion, sufficient H&C considerations are present then a consideration for exemption may be granted.
Examples of specific inadmissibility are the following:
- Criminal inadmissibility
- Medical inadmissibility
- Inadmissibility of family members
- Financial inadmissibility – social assistance
An applicant did not expressly make a specific request for exemption under H&C grounds. But it is clear from his case that he can be exempted from inadmissibility. What will happen in this case?
There are certain cases when there is absence of a specific request for exemption from the applicant. In this scenario, decision-makers have the discretion to refuse an application or consider granting exemptions at any time during the assessment.
A decision-maker should also notify the applicant that H&C is being considered and the applicant must be given an opportunity to concretely present his reasons for H&C consideration.
Are children directly affected by immigration decisions also considered in H&C applications?
In deciding cases based on H&C consideration, the best interests of any child who may be directly affected by the decision should be included in the assessment of the application. “Any child directly affected” pertains to a Canadian or foreign-born child and can also include those children outside Canada.
This principle of “best interests of children” incorporated into legislation does not entirely mean that these interests of children far outweigh all other factors in a given case. While it is true that substantial consideration and due credence should be granted to the best interests of children, this is not the sole controlling factor. Other factors are likewise considered when making an H&C decision that could possibly affect children directly.
Is the “best interest of children” principle limited only to parent-child relationships?
Parent and child relationship between the applicant and the “child directly affected” need not be present. It could be another relationship that could be affected by the decision. (e.g., a grandparent is the primary caregiver to his grandchild – a child who could be affected by an immigration decision).
Are there any instances when individuals who are not categorized as immediate family or considered a member of a family class be considered in granting H&C considerations?
“De facto family members” are individuals who do not fall under the definition of a member of a family class. Examples would be a son or daughter older than 19 years of age; an elderly aunt or uncle; an unrelated person who has lived with the family for a long span of time; or children in a guardianship relationship under the IRPR when adoption is not possible. These individuals are in a situation of dependence which makes them a De facto family member.
When these persons are separated in such dependent relationships, such fact may be considered as grounds for positive assessment by the decision-makers.
I am eligible to apply pursuant to a Ministerial Instruction (MI). However, I was also held inadmissible. For this reason, can I also invoke H&C consideration in order to overcome my inadmissibility?
Several provisions under the IRPA allow the Minister to issue special instructions to immigration officers that address diverse issues ranging from temporary resident processing to federal skilled worker selection and application intake measures. These MIs are usually issued for a limited period only.
If a foreign national is eligible to apply in a category subjected to MIs, but they are, however, inadmissible, they may still apply in the said category and request for an H&C consideration to overcome the inadmissibility.
Can a previous unfavorable H&C decision be subject for reconsideration?
A previous H&C decision may be reconsidered should the applicant overcome the burden of satisfying the officer that such reconsideration is warranted. All relevant factors and personal circumstances should be submitted in order to come up with a meritorious reconsideration of the given case.
For example, if new evidence is submitted by the applicant and such evidence is based on new information and is material in deciding the case, the decision-maker may reconsider the application. Specifically, he may reconsider whether the said evidence will be more appropriate in the event that a new application is filed.
I am considered a stateless person. Can this be invoked as a ground for H&C consideration? What documentation can I present?
It is true that obtaining proof will be a challenging ordeal but documentation that demonstrates an applicant’s statelessness is required when invoking a consideration based on H&C grounds.
Some examples of this documentation are:
- Certification documents from a state authority of either the country of origin or country of former residence of an applicant that provides that he or she is not a national of their country;
- The refusal itself of a state who refuses to confer that the applicant is its national;
- Indication from the Canada Border Services Agency (CBSA) that no travel documents from the applicant’s country of origin or country of habitual residence could be obtained;
- Such other relevant documentation supporting an applicant’s claim of statelessness.
I wish to apply only for a temporary resident status. Can I apply under the H&C program?
Only those who are applying for permanent resident status based on H&C grounds will be considered. H&C is not a pathway to a temporary residence.
Can I file multiple H&C applications at the same time?
No, you cannot. Multiple H&C applications filed at the same time are not allowed.
I have a pending refugee claim. Can I also file an H&C application at the same time?
No H&C application will prosper if the applicant has a pending refugee claim. He or she must first withdraw the refugee claim in a hearing before the Immigration and Refugee Board of Canada (IRB).
My refugee application was rejected by the IRB less than 1 year ago. Can I already apply for an H&C application?
If the IRB renders an unfavorable decision within the last 12 months, an H&C application will not be accepted.
However, this 1-year bar rule will not apply if you fall under the following categories:
- The applicant has children under 18 years of age who would be adversely affected if the applicant is removed from Canada; or
- The applicant can sufficiently prove that he or one of his dependents suffers from a life-threatening medical condition that cannot be successfully treated in their home country.
How do you apply for H&C consideration?
There are 2 stages in applying for H&C consideration: H&C assessment of requested exemptions and rendering a decision on the permanent residence application.
For H&C application, the following steps are needed to be followed:
1. Fill out the necessary forms (https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/humanitarian-compassionate-considerations.html)
2. Gather required documents needed for the application (https://www.canada.ca/content/dam/ircc/migration/ircc/english/pdf/kits/forms/imm5280e.pdf)
3. Pay the corresponding fees
Note: If full fees are not paid, applications shall be returned. Processing will only commence upon payment of the correct fees.
4. Mail the Application
Is there a need for biometric information to be taken?
The applicant and his or her family members need to personally appear to have their biometric information taken. It is a policy that as of December 3, 2019, biometrics are required in applications from within Canada.
The applicant must first pay for the biometric fees and submit their application and subsequently get a Biometric Instruction Letter (BIL). Prior appointment is needed before going to the collection service points.
How can I check the status of my application?
If the applicant is in Canada or the United States, all application status may be checked online through this link: https://services3.cic.gc.ca/ecas/security.do?lang=en
If outside Canada and the United States, the applicant may contact the Canadian embassy, high commission or consulate responsible for the applicant’s region or inquire via Webform.
How can I withdraw my H&C application?
If you want to withdraw your H&C application, you must do so in writing. Make sure you indicate your client ID number, family name and first name on all correspondence.
You must send your withdrawal by fax at 604-666-1116, by email to: VancouverBRO@cic.gc.ca or by mail at:
IRCC – Humanitarian Migration Vancouver
#600 – 605 Robson Street
Vancouver, B.C.
V6B 5J3
How long is the processing time for H&C applications?
For H&C cases, processing time under normal circumstances takes up to 22 to 36 months. Delay and possible return are expected if applications are incomplete.
Are there any changes or impacts to the application process due to the COVID-19 pandemic?
Because of the covid-19 pandemic, applications are not processed normally and processing times are affected. Applications from Canadians trying to return to Canada, vulnerable individuals and people performing or supporting essential services are prioritized.
Contact us today to get an assessment of your eligibility and offer you the best action plan to make you our another success story. Tel: +1-416-272-3939; email: law@konanlaw.com or fill out our free online assessment form.
