What is a Humanitarian and Compassionate (H&C) application?
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.
Purpose and Objectives of the program
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.
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.
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.
Humanitarian and Compassionate (H&C) assessment
H&C Assessment, the benchmark is laid down in subsection 25(1) of IRPA – whether relief is justified by humanitarian and compassionate considerations relating to the foreign national.
It must be noted that each H&C factor should not be separately or individually considered. An overall assessment of all relevant factors is warranted.
Considerations in processing H&C applications
1. Balancing consistency with flexibility
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.
Note: Policy guidelines are merely suppletory. These are not legally binding and the requirements therein should not be construed by the decision-makers as mandatory.
2. Responsibility of the applicant
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.
3. Standard of Proof
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 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.
4. Applying for permanent residence from outside Canada
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.
5. Assessment of Hardship
The determination whether sufficient grounds to justify granting an H&C request do exist will definitely include an assessment of hardship. Hardship arises as a result of the requirement under the law that requires foreign nationals to apply for a permanent visa before entering Canada.
To be more precise, 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.
Another example is where applicants request for exemptions from other requirements of IRPA and IRPR. In these instances, what the decision makers have to consider is the possible hardship that the applicant will face should the requested exemption is not granted.
Limitation in assessment of hardship
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.
6. Inadmissibility
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
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.
Example where no exemption is requested by the applicant
An applicant has a criminal conviction and, in his submissions, it is apparent that he is building a case as to why he should be exempted from inadmissibility. Specifically, he mentions that he has served his time, rehabilitated, done community service, is currently employed full-time, and such other circumstances that may justify an exemption. There is absence, however, of a specific request from him in that regard.
In such cases, a decision maker should 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.
7. Best interests of the child
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.
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., the Grandparent is the primary caregiver to his grandchild – a child who could be affected by an immigration decision).
The reason behind considering the best interests of children can be found in the decision in Kanthasamy v. Canada [(Citizenship and Immigration), 2015 SCC 61] at para 7 which states, “As children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief.”
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.
Should there be insufficient proof or basis to support that the best interest of a child is a controlling factor in deciding an immigration case, the grant of an exemption will not be justified.
8. De facto family members
“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.
9. Ministerial instructions (MIs)
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.
10. Family relationships
In dealing with family relationships, reference should be made to the governing principles provided in the International Covenant on Civil and Political Rights (ICCPR), such as:
o (Article 17) – Non-interference in family life;
o (Article 23) – Importance and protection of a family unit by society and the State;
o (Article 24) – Children’s rights to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
Some factors to consider under this circumstance are: occurrence of family violence, country of origin, current immigration or citizenship status, and such other factors as may be significant thereto.
11. Ability to establish in Canada
Applicant must 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.
12. Reconsideration of a previous unfavorable decision
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.
13. Statelessness
By definition under the 1954 Convention Relating to the Status of Stateless Persons, a person who is not considered to be a national of any state under the operation of its law is considered a “stateless person”. Several factors may cause statelessness such as: contradictions between citizenship laws of states involved, border changes, inherited statelessness, discrimination or renouncing of one’s nationality.
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:
o 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;
o The refusal itself of a state who refuses to confer that the applicant is its national;
o 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;
o Such other relevant documentation supporting an applicant’s claim of statelessness.
Important reminders before submitting H&C applications
1. H&C requests from temporary resident applicants will not be processed. Only those who are applying for permanent resident status based on H&C grounds will be considered.
2. Multiple H&C applications filed at the same time are not allowed.
3. 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).
4. If the IRB renders an unfavorable decision within the last 12 months, an H&C application will not be accepted. This 1-year bar rule will not apply if you fall under the following categories:
o The applicant has children under 18 years of age who would be adversely affected if the applicant is removed from Canada; or
o The applicant can sufficiently prove that he or one of his dependents suffer from a life-threatening medical condition that cannot be successfully treated in their home country.
The Application Process
A. Who may apply for permanent residence based on H&C grounds
An applicant may opt to apply for permanent residence to Canada based on H&C grounds if he or she:
o Is a foreign national currently residing in Canada;
o Needs an exemption from one or more of the requirements provided by IRPA;
o Has a well-founded belief that humanitarian and compassionate circumstances exist that can justify the granting of exemptions;
o Is not eligible as an applicant for permanent residence under these classes:
Spouse, common or conjugal partner;
Caregiver;
Protected persons and refugees;
Temporary resident status holders.
B. Who may NOT apply based on H&C grounds
An applicant is ineligible to apply for H&C consideration if he or she:
o Is a Canadian citizen;
o A permanent resident;
o Has submitted an H&C application, the decision of which is still pending;
o Has made a refugee claim and is still pending decision;
o Within the last 5 years, became a designated foreign national.
C. Stages of H&C Application
1. H&C assessment of requested exemptions
2. Decision on the permanent residence application.
D. Filling out of the necessary Application Forms
The necessary forms to be completed and submitted by every applicant could be found via https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/humanitarian-compassionate-considerations.html.
E. Gathering of important documents needed for the application
Use the Document Checklist Humanitarian and Compassionate Considerations or Form [IMM 5280] as reference in preparing the necessary documents. Said form can be downloaded with button below:
F. Payment of the corresponding fees
|
Application (per person) |
$CAN |
|
Application Processing fee ($CAN 550) and Right of Permanent Residence fee ($CAN 500) |
1,050 |
|
Application without Right of Permanent Residence fee |
550 |
|
Spouse or partner processing fee ($CAN 550) and Right of Permanent Residence fee ($CAN 500) |
1,050 |
|
Spouse or partner without Right of Permanent Residence fee |
550 |
|
Include a dependent child |
150 |
|
Biometrics fees |
$CAN |
|
Biometrics (per person) |
85 |
|
Biometrics (per family) (2 or more people) Maximum fee for a family of 2 or more people applying at the same time and place |
170
|
Note: If full fees are not paid, applications shall be returned. Processing will only commence upon payment of the correct fees.
G. Mailing of the application
Post the application package to:
Immigration, Refugees and Citizenship Canada – Backlog Reduction Office
#600 – 605 Robson Street
Vancouver, B.C.
V6B 5J3
H. Biometrics
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). Said letter should be brought to the biometric collection service point during the giving of the applicant’s biometrics. Prior appointment is needed before going to the collection service points.
I. Checking the application status
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.
J. Withdrawing 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
Processing Times
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.
Covid-19 impact
Because of the covid-19 pandemic, applications are not processed normally and processing times are not as accurately provided. Applications from Canadians trying to return to Canada, vulnerable individuals and people performing or supporting essential services are prioritized.
Legal Fees
We offer block (fixed) fees, so you don’t have to worry about surprise and hidden costs. What you see is what you pay. Legal fee for the Humanitarian & Compassionate (H&C) Application: $8,000 + $500 per dependent plus government fees and taxes. Residents outside Canada don’t pay the tax.
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.
