The article below is an overview of policies and procedures for applications for permanent residence in Canada based on humanitarian and compassionate grounds (H&C) under A25(1), R66.
The Immigration and Refugee Protection Act and its Regulations provide for circumstances in which foreign nationals may submit an application in Canada to become a permanent resident. In order to be eligible, a foreign national must be a member of a class set out in Subsection R72 (2). However, the classes described in R72 (2) do not cover all circumstances. Thus, A25 (1) gives the Minister the authority to use discretion to grant an exemption to these requirements where it is justified by humanitarian and compassionate considerations.
What are humanitarian and compassionate grounds?
In essence, any foreign national who is inadmissible or who does not meet the requirements of the Act or Regulations may make a written request for consideration under A25(1). You must clearly demonstrate that you would experience unusual and undeserved or disproportionate hardship if you were required to leave Canada. The cost and inconvenience of applying outside Canada is not considered a hardship.
You must ensure that all circumstances you wish to have considered are identified and included in your application. You must also include any documents which you believe will support your statements. You are responsible for providing evidence in support of any statement you make on your application. When reviewing your application, if applicable, the best interests of a child directly affected by the decision made on your application will also be taken into consideration. If you wish to have the best interest of a child considered, you must provide specific information and documents on how the child or children would be affected. Please note that the interests of a child do not outweigh all other factors in a case. The best interests of a child are only one of many important factors that will be considered when making a decision.
Concurrent H&C applications are not permitted. This means that you cannot submit a new H&C application if you already have one outstanding.
The assessment of hardship
The hardship must be “unusual, undeserved or disproportionate.” In many cases the hardship test will revolve around the requirement in A11 to apply for a permanent residence visa before entering Canada. In other words, would it be a hardship for the applicant to leave Canada in order to apply abroad.
Applicants may, however, request exemptions from other requirements of the Act and Regulations. In such cases, the test is whether it would be a hardship for the applicant if the requested exemption is not granted.
Applicants may base their requests for H&C consideration on any number of factors including, but not limited to:
- establishment in Canada;
- ties to Canada;
- the best interests of any children affected by their application;
- factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in A96 and A97);
- health considerations;
- family violence considerations;
- consequences of the separation of relatives;
- inability to leave Canada has led to establishment; and/or
- any other relevant factor they wish to have considered not related to A96 and A97.
With respect of the best interests of the child, below are some of the factors that applicants may raise:
- the age of the child;
- the level of dependency between the child and the H&C applicant or the child and their sponsor;
- the degree of the child‘s establishment in Canada;
- the child‘s links to the country in relation to which the H&C assessment is being considered;
- the conditions of that country and the potential impact on the child;
- medical issues or special needs the child may have;
- the impact to the child‘s education; and
- matters related to the child‘s gender.
Support of your application (undertaking of assistance)
A family member or close relative in Canada may support your application by submitting a sponsorship (undertaking of assistance) that will be considered in conjunction with all other factors presented with your application. Sponsorship is a practical way for a family member or relative to support your application and demonstrates a commitment to support you in Canada. A sponsorship may be an important factor if your ability to support yourself is in question. In the case of applications submitted under H&C grounds, sponsors and applicants do not have a right of appeal to the Immigration Appeal Division in the case of refusal.
Bill C-11, the Balanced Refugee Reform Act has received Royal Assent. These reforms will improve Canada’s asylum system, resettle more refugees from abroad and make it easier for refugees to start their lives in this country. The changes to the asylum system will come into effect on June 29, 2012. However, changes to the humanitarian and compassionate provisions came into effect immediately at Royal Assent.
- a person cannot have two H&C applications pending at the same time;
- H&C decision makers may not consider the risks that are assessed within the refugee protection process, i.e. risk of persecution based on grounds set out in the Refugee Convention or risk of torture, to life or of cruel and unusual treatment or punishment, but must continue to consider elements related to the hardships that affect the foreign national
- failed asylum claimants whose final decisions were rendered within the last 12 months are immediately subject to the bar on requests for TRPs for 12 months from the date that their claim was rejected (or deemed to be abandoned or withdrawn). However, requests for TRPs submitted prior to June 29, 2010 will be “grandfathered” and assessed per the previous legislation.
The new measures also confirm in legislation the existing policy that an H&C application is not considered complete until the appropriate fees have been paid. As well, the new legislation separates out the public policy provision from the H&C provision.
Please feel free to contact us if you have any questions regarding H&C factors or exemptions from requirements of the Immigration Act.
Our goal is to provide each client with a successful outcome by determining the most appropriate solution. If you would like to know whether you could be eligible to immigrate to Canada, we invite you to complete our online assessment questionnaire.
If you are interested in seeking professional assistance to guide you through the immigration process or if you have any questions, please contact us.