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 considerations. Such permanent residence applications may only be submitted by those who are inside Canada.
What Is A Humanitarian & Compassionate Application For Canadian Permanent Residence?
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.
What Factors Are Considered In H&C Applications?
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.
Who Is Barred From Applying For H&C Permanent Residence
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.
What Are The Steps To Submitting an H&C Application?
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.
A 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 (deportation), 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.
How Long Are Processing Times For H&C Applications?
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.
Can I Still Apply Based On Humanitarian And Compassionate Grounds If I Am Inadmissable To Canada?
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.