Humanitarian and Compassionate Applications
Section 25 of Canada’s Immigration and Refugee Protection Act allows an immigration officer to receive applications from anyone in Canada, who is otherwise not eligible to apply for permanent residence under any of the existing immigration programs or where there is a bar in an application. At its heart an application with humanitarian and compassionate (“H&C”) considerations is a request that an applicant be excused from any requirement under Canada’s immigration laws and policies on the basis that the application of those laws and policies to their particular situation would result in hardship.
For many applicants such as individuals who sought refugee status in Canada but were denied such status, temporary foreign workers who may not have great language skills to qualify for permanent residence under one of the economic immigration programs, or people who have family members who has an illness that may render them inadmissible to Canada on medical grounds, an application for permanent residence on H&C grounds may be the only way to apply for permanent residence in Canada.
Notably, H&C considerations can also be requested in certain applications, such as spousal sponsorships, made outside Canada. Consider for example the situation of a spouse or other member of the family who was either not mentioned in an application or only mentioned as a non-accompanying family member of the main applicant and was not examined at the time the sponsor’s application was processed. Pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations , this spouse or member of the family cannot be later sponsored as a member of the family class because she or he was not examined when the sponsor applied to immigrate to Canada. Applicants who are affected by the provision can request H&C considerations to seek exemption from paragraph 117(9)(d).
When visa officers review H&C applications, they analyze numerous factors, including:
- the person’s establishment or their ability to establish in Canada;
- the person’s ties to Canada, including family ties;
- their physical health or mental health concerns;
- the well-being or the best interests of any children involved, whether the children is in Canada or not; and
- what could happen to the applicants or people close to them if their H&C applications are not granted.
The Supreme Court of Canada provided a broad and inclusive definition of what constitutes humanitarian and compassionate ground in the leading case Kanthasamy v. Canada (Citizenship and Immigration) . In Kanthasamy the Supreme Court of Canada stated that in considering H&C applications immigration officers need to adopt a principled approach which applies the law. The Supreme Court of Canada affirmed that the approach requires that a decision-maker have the ability to empathize with an applicant for relief by placing her or himself in the applicant’s shoes to clearly understand and be sensitive to the applicant’s circumstances.
However, existence of positive H&C factors will not automatically lead to an approval. Submitting an application with H&C considerations can be a complex and worrisome process. A lot is on the line and therefore making a strong and compelling case is essential for a successful outcome. Let Obaidul handle your H&C application so that your application stands out and you have your best shot at remaining in Canada as a legal resident.
1. (S.C. 2001, c. 27)
2. (SOR 2002-227)
3. Under the Immigration and Refugee Protection Act both the applicant and the applicant’s family members, whether accompanying or not, must meet the requirements of the legislation. There are no exceptions to the requirement that all family members must be declared. With few exceptions, this also means that all family members must be examined as part of the application for permanent residence. Person who were not declared or were not examined cannot later benefit by being sponsored by this person as member of the family class.
4. 2015 SCC 61 (CanLII)
5. Dowers v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 593 (CanLII)