H&C and TRP Applications
Out of status and out of options? Our immigration lawyers may be able to help you get a temporary resident permit as a stop-gap to a permanent residency application while you address your inadmissibility issues. If you are already in Canada, you may be eligible to apply for permanent residency based on humanitarian and compassionate grounds. Let’s discuss how we can help you turn your situation around.
H&C AND TRP Application Services
A strict application of the Immigration and Refugee Protection Act (IRPA) or the Immigration and Refugee Protection Regulations (Regulations) may lead to a refusal of your application that our immigration lawyers can help you appeal. We know what’s at stake for you in your immigration status, and we’re here to help.
Our immigration lawyers have experience working with:
- Refugees on refugee claims;
- Foreign nationals on permanent residence applications;
- Foreign nationals on temporary residence applications, including student visas;
- Spouse and common-law applications and issues;
- Applications for permanent residence from within Canada;
- Applications on humanitarian and compassionate grounds;
- Addressing inadmissibility issues;
- Reviews and appeals before divisions of Immigration, Refugees & Citizenship Canada (IRCC), the Immigrant & Refugee Board of Canada, and the Federal Court of Canada.
Concerned that you are considered inadmissible to Canada? Not sure what to do when your application is refused? There may be options, and we are here to help you find them. Book a consultation with our immigration lawyers today to find out how we can help you turn the situation around.
Individuals who are unable to meet the eligibility requirements to become permanent residents of Canada through traditional methods may have the ability to apply for Canadian permanent residency based on humanitarian and compassionate (“Humanitarian & Compassionate”) considerations. Such permanent residence applications may only be submitted by those who are inside Canada.
The purpose of humanitarian and compassionate discretion is to allow flexibility to approve deserving cases not covered by the Immigration and Refugee Protection Act (“IRPA”). Applicants may make submissions on any facts affecting their personal circumstances that they believe are relevant to their request for Humanitarian & Compassionate consideration.
The request is generally based on a number of factors including but not limited to:
- establishment in Canada for in-Canada applications;
- ties to Canada;
- the best interests of any children directly affected by the Humanitarian & Compassionate decision;
- factors in their country of origin including adverse country conditions;
- health considerations including inability of a country to provide medical treatment;
- family violence considerations;
- consequences of the separation of relatives;
- inability to leave Canada has led to establishment (in the case of applicants in Canada);
- ability to establish in Canada for overseas applications;
- any unique or exceptional circumstances that might merit relief.
It should be noted that there are no definitions in the IRPA or its regulations of the terms “humanitarian” and “compassionate,” so the minister or delegated officer must use discretion when deciding which applications to accept.
The current leading case on Humanitarian & Compassionate consideration is Kanthasamy v. Canada (Citizenship and Immigration), where the Supreme Court of Canada determined that when assessing Humanitarian & Compassionate requests, it is necessary to consider whether the Humanitarian & Compassionate request “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another.” The Supreme Court further held that the hardship test is meant to be instructive, not determinative, and overreliance on it to the point of fettering discretion is a reviewable error.
There are some important bars to submitting an in-Canada Humanitarian & Compassionate application under:
1. Failed refugee claimants are barred for 12 months from applying for Humanitarian & Compassionate considerations following a negative decision by the Refugee Protection Division (RPD) or the Refugee Appeal Division (RAD), or a final decision that the claimant withdrew his claim.
*This bar does not apply to refugee claimants who have children under 18 who would be adversely affected by the claimant’s removal (deportation), or to claimants or their dependants who have a life-threatening medical condition that cannot be treated in their home country.
2. Designated foreign national refugee claimants may not apply for Humanitarian & Compassionate considerations for at least five (5) years after the day of their designation or a final determination by the RPD, or if there has been a negative decision on an application for a pre-removal risk assessment.
As with most Canadian permanent residence applications, the processing of Humanitarian & Compassionate applications is a two step process:
Stage 1: Approval - Humanitarian & Compassionate Factors Are Sufficient to Overcome Inadmissibility or Ineligibility
Stage 1 involves the assessment of the above factors in light of the applicant’s inadmissibility (known or disclosed at the time of the application). The onus to request an exemption from inadmissibility (e.g. misrepresentation, medical, criminal, inadmissible family member, etc.) when making the Humanitarian & Compassionate application lies squarely on the applicant. If the applicant fails to do so and inadmissibility is discovered during the application process, the officer may dismiss the application.
As such, an applicant should always specifically request an exemption at the outset of the application. An officer may grant an exemption on his or her own initiative where appropriate, but this is usually reserved for situations where the inadmissibility arises after the applicant has already received a positive stage 1 assessment (e.g: if a medical condition develops later on).
Stage 2: Approval of Permanent Residency
Stage 2 approval involves the approval of the actual Humanitarian & Compassionate application for permanent residence. Applicants must be admissible, meet all of the other requirements of IRPA, and must have a passport (unless they are exempted from that requirement). During this stage, the Canadian Security Intelligence Service performs security screening and the RCMP conducts screening for criminal records on behalf of IRCC.
Humanitarian & Compassionate Application Does Not Stop Removal Proceedings
It must be noted that submitting a Humanitarian & Compassionate application for permanent residence does not stop removal proceedings (deporation), and if the applicant is in Canada without status, it is possible that they will be removed before a determination on the Humanitarian & Compassionate application is made. If this occurs, IRCC will continue to process the Humanitarian & Compassionate in their absence- it will not be converted into any other type of application. The reality is that it will be very challenging to succeed on a Humanitarian & Compassionate application once the applicant has been removed because the application is still based largely on the client’s establishment in Canada and hardship if forced to leave and apply from abroad. Deportation from Canada clearly undermines these factors.
At the same time, a pending Humanitarian & Compassionate application may justify deferral of removal. Such requests are submitted to CBSA. If a deferral request is not granted, one may seek relief from the Federal Court by way of a stay motion which can only be brought within an underlying application for judicial review which often means judicially reviewing the denial of the deferral request.
Once stage 1 approval is granted, the application proceeds to stage 2, where the applicant and their family members undergo medical, security, and criminality checks as part of the admissibility assessment.
Processing timelines for Humanitarian and Compassionate applications vary greatly, with some exceptional cases obtaining Stage 1 approval within a few weeks, and other cases taking three (3) years to be considered. On average, we have seen Stage 1 approval granted for strong cases within 12 months, but timelines are very hard to predict.
Our law firm has successfully handled a broad range of Humanitarian & Compassionate applications, including cases working with foreign nationals whose refugee claims have been denied. We note that to be accepted, claims for refugee protection must meet certain technical requirements, and a denial of a claim does not necessarily meant that the claim had no merit.
We have worked with out-of-status foreign workers and students. We have also worked with individuals whose spousal sponsorship applications have cancelled due to relationship breakdowns. Our immigration lawyers know how to present your evidence in the most effective way possible. We also offer flexible retainer options. Contact us today if you think the Humanitarian & Compassionate application is the right option for you.
Stand-alone Humanitarian & Compassionate applications may only be submitted by those physically in Canada, while those physically outside of Canada may rely on Humanitarian & Compassionate factors (when appropriate) to overcome eligibility, inadmissibility, or other issues. For example, when a Canadian citizen or permanent residence has applied to sponsor their spouse or common-law partner who has a criminal record, it may be possible to request that the sponsored partner’s criminal inadmissibility be dismissed on Humanitarian & Compassionate grounds.
Various appeals before the Immigration Appeal Division can also consider Humanitarian & Compassionate factors, such as residency appeals, removal order appeals, and some family class appeals. One example would be a permanent resident seeking to appeal a negative residency determination. At their hearing, the appellant might admit that they did not meet their residency obligation under IPRA, but argue that the particular Humanitarian & Compassionate considerations applicable to their case warrant allowing the appeal on Humanitarian & Compassionate grounds.
It is necessary to consider that the most effective way to apply Humanitarian & Compassionate factors in your case depends on your particular context. To obtain a favourable outcome, it is critical to research the most recent case law to ensure that the Humanitarian & Compassionate framework is well understood.
Our law firm can help you consider if and how Humanitarian & Compassionate factors can improve your chances of obtaining a favourable outcome. Contact us today for more information.
Temporary Resident Permits are issued in exceptional circumstances to allow an otherwise inadmissible foreign national to either enter or remain in Canada. Unlike the reliance on Humanitarian and Compassionate factors or considerations, a Temporary Resident Permit is a temporary fix to with respect to inadmissibility. When it comes to criminal offences, a rehabilitation application (more info) may offer a permanent fix.
Temporary Resident Permits can be granted to individuals who have demonstrated “compelling reasons” to enter or remain in Canada, despite inadmissibility or non-compliance. For example, a Temporary Resident Permit would be appropriate for an individual who has been charged with drunk driving or lack of status, but needs to study or work in Canada.
The consideration of the Temporary Resident Permit is typically based on a needs versus risk assessment. That is, to be eligible for a Temporary Resident Permit your need to enter or stay in Canada must outweigh the health or safety risks to Canadian society, as determined by an immigration or a border services officer. Even if the reason you are inadmissible seems minor, you must demonstrate that your visit is justified.
A Temporary Resident Permit may be issued at a Canadian visa office outside Canada, at the port of entry, or from within Canada (by the Case Processing Center in Vegreville, Alberta), depending on where the foreign national is making an application or request for entry to Canada. In practice, it is highly recommended that a foreign national who requires a Temporary Resident Permit submit the formal written request to a Canadian consulate before attempting entry.
Temporary Resident Permits are a discretionary instrument and are issued for a limited period of time. The minister may impose conditions, which are usually listed on the document, and a Temporary Resident Permit can be cancelled at any time.
The initial permit can be issued for up to three years.
It is important to be aware that a Temporary Resident Permit is meant to facilitate a temporary residence, and is an exceptional remedy. The permit is deemed cancelled when the foreign national leaves Canada, unless it specifically authorizes re-entry.
Processing timelines for Temporary Resident Permits can vary, from several months to a year, depending on the consular post or processing centre.
Temporary Resident Permit holders may apply for Canadian permanent residence provided that they remain continuously in Canada as Temporary Resident Permit holders for at least three (3) years and do not become inadmissible on other grounds. There is no discretion involved in granting a Temporary Resident Permit holder permanent resident status under the permit holder class. The only criteria are: (1) that the foreign national has held a valid Temporary Resident Permit for the necessary amount of time; and (2) the foreign holder did not become inadmissible on other grounds. A break in continuity may affect the foreign national’s eligibility for permanent residence, thus Temporary Resident Permit holders must be cautious in this regard.
In virtually every standalone Humanitarian & Compassionate we request for a Temporary Resident Permit to be issued in the alternative.
Please contact us today for more information on Temporary Resident Permits, and to discuss whether a Temporary Resident Permit application is right for you in your particular circumstances.