STAGES OF AN H&C APPLICATION
What is an H&C application?
An H&C application is an application for permanent residence from within Canada. In general, foreign nationals must apply for permanent residence from their home country. Under section A25.1 of the Immigration and Refugee Protection Act, however, foreign nationals – individuals who are neither citizens nor permanent residents – can ask Immigration, Refugees and Citizenship Canada (IRCC) to make an exception to this rule based on humanitarian and compassionate (H&C) considerations.
(The federal department that used to be called Citizenship and Immigration Canada (CIC) has been renamed Immigration, Refugees and Citizenship Canada (IRCC). Usage of the new name began after the new government took office in November, 2015. While the acronym ‘CIC’ continues to be used in some cases, particularly on older webpages and program guides, ‘IRCC’ is preferred in most official publications and communications.)
Stages of an H&C approval:
There are two stages of H&C approval:
- Stage 1: Allowed to apply for permanent residence in Canada for humanitarian and compassionate reasons, and (“approval in principle”)
- Exempts applicant from the in-Canada eligibility criteria based on H&C considerations, so that application for permanent residence from within Canada can proceed
- IRCC officials send letter informing applicant that:
- The exemption has been granted
- The applicant and his/her dependents must still meet any admissibility requirements for which they were not granted an exemption. (Otherwise, the application for permanent resident status may be refused at Stage 2).
- IRCC officials will then begin processing the application for permanent residence (Stage 2).
- Stage 2: Approved for permanent resident status in Canada
- Allows the foreign national to become a permanent resident (subject to certain requirements [R72 (1)(b) and (c)], if these requirements were not specifically waived in the Stage 1 assessment.)
- Puts into effect a stay of removal (R233) and allows applicant to apply for work permit [R207 (d) and /or study permit [R215 (g)].
ELIGIBILITY FOR AN H&C APPLICATION
Who is eligible for an H&C application?
A person can make an H&C application if s/he:
- Is a foreign national currently living in Canada;
- Needs an exemption from one or more requirements of the Immigration and Refugee Protection Act (IRPA) or Regulations in order to apply for permanent resident status within Canada;
- Believes humanitarian and compassionate consideration justifies granting the exemption(s) you need; and
- Is not eligible to apply for permanent resident status from within Canada in any of these classes:
- Spouse or Common-Law Partner
- Live-in Caregiver
- Protected Person and Convention Refugees; and
- Temporary Resident Permit Holder
Who is ineligible for an H&C application?
A person cannot make an H&C application if s/he:
- Is a Canadian citizen;
- Is a permanent resident;
- Has submitted an H&C application for which a decision has not been made;
- Has an outstanding refugee claim;
- Had a refugee claim that was rejected (including claims that were abandoned) within the last 12 months by either the Refugee Protection Division or the Refugee Appeal division of the IRB;
- Withdrew a refugee claim within the last 12 months, unless the claim was withdrawn before our hearing at the IRB;
- Note: This is known as the “12-month bar” There are exceptions to the 12-month bar. You may be excepted if:
- You provide sufficient credible and objective evidence that there are children under 18 years of age who would be directly and adversely affected if you were removed from Canada (they do not need to be your children); or
- You provide sufficient credible and objective evidence that you, or a failed refugee claimant included in your application, if returned to home country, would be subject to a risk to life caused by the inability of your country(ies) of nationality, or former habitual residence if you don’t have a nationality, to provide adequate health or medical care.”
- Is inadmissible on the ground of:
- Criminality,
- Health grounds,
- Financial reasons,
- Misrepresentation.
- Became a designated foreign national within the last 5 years or is a designated foreign national and has received a decision within the last 5 years for any of the following:
- A refugee claim at the Refugee Protection Division, Immigration and Refugee Board (IRB)
- An appeal to his/her rejected refugee claim (at the IRB’s Refugee Appeal Division), or
- An application for a Pre-removal Risk Assessment
- Note: The Minister of Public safety advises individuals when they become a designated foreign national.
Concurrent applications for H&C and renewal of temporary resident status
If applying to renew his/her temporary resident status in Canada (student, visitor, worker, etc.) at the same time as applying for H&C, the applicant must not include the two applications in the same envelope. The applicant must pay for the applications separately and mail the temporary resident renewal application to the Case Processing Centre in Vegreville. H&C applications must be sent to the Backlog Reduction Office in Vancouver (BRO-V).
LEGAL PRINCIPLES & IMPLICATIONS OF KANTHASAMY
Canada’s Immigration and Refugee Protection Act (IRPA) and Regulations (IRPR) provide the legislative authority for the admissibility, eligibility and removal of non-citizens. Section 25(1) of the IRPA allows the Minister of Citizenship and Immigration or his delegates (immigration officers) the discretion to exempt applicants from the condition that permanent residency applications must be made outside of Canada, (and from most requirements of the Act) if the Minister (or immigration officer) is of the opinion that such relief is justified by humanitarian and compassionate considerations. H&C consideration is not simply an alternative means of applying for permanent resident status in Canada— it is an exceptional measure. IRPA s. 25(1) reads:
Humanitarian and compassionate considerations — request of foreign national 25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected (emphasis added).
The rules for deciding whether sufficient H&C grounds exist to justify granting a. 25(1) relief during permanent residency applications developed from two schools of thought: the approach set out in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), and the test established in Ministerial Guidelines (“the Guidelines”), set out in paragraphs 26 – 28 of IRCC manuals. Chirwa, which was the first case to discuss the meaning of H&C considerations, defined these considerations broadly as, “those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act.” The Guidelines, however, provide a more specific test; applicants must demonstrate either “unusual and undeserved hardship” – hardship not anticipated or addressed by the Act or its regulations – or disproportionate hardship – an unreasonable impact on the applicant due to their personal circumstances. The Ministerial Guidelines in section 5.11 provide a non-exhaustive list of factors that may be relevant to applying the “unusual and undeserved or disproportionate hardship” standard: Under IRPA ss. 25(1) and s. 25(1.1), the best interest of any child affected by the decision must also be considered.
Prior to 2015, the jurisprudence followed these two schools of thought, one casting the Guideline language as non-binding, descriptive and “co-extensive” with Chirwa, and the other approach, which rejected the Chirwa approach and instead elevated the Guideline test.The “Guidelines’ approach was predominant, and immigration officers tended to narrowly interpret the “unusual and underserved hardship or disproportionate hardship” standard.
In December 2015, the Supreme Court of Canada (“SCC”) released Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61, a pivotal decision on how immigration Officers should evaluate cases in humanitarian and compassionate (H&C) applications.
Kanthasamy Case Summary:
Jeyakannan Kanthasamy (“K”) was a Tamil teenager from Sri Lanka. In April 2010, when K was 16 years old, his parents arranged for him to travel to Canada after he was subjected to detention and questioning by the Sri Lankan army and police. Once in Canada, (after his refugee claim and application for a Pre-removal Risk Assessment were refused), he applied for humanitarian and compassionate relief under s. 25(1) of the IRPA. Using the test of “unusual and underserved or disproportionate hardship”, the Immigration Officer rejected the application, deciding that:
- On whether K’s mental health would suffer if he returned to Sri Lanka:
- K’s psychological report was insufficient evidence that his return to Sri Lanka would affect his mental health, since he did not show that he sought mental health treatment in Canada or that such treatment would be unavailable
- Furthermore, since the psychologist did not witness the events on which the psychological report was based, the report was based mainly on hearsay and thus unreliable
- On whether K would face discrimination if he returned to Sri Lanka:
- Since K’s previous refugee application was denied, the factors on which he based the refugee application should be disregarded in considering possibility of discrimination (factors related to fear of persecution, torture, risk to life or cruel & unusual punishment on basis of race & nationality).
- While K provided evidence that Tamils are discriminated against in Sri Lanka, onus is on the applicant to show the discrimination would affect him personally.
On judicial review, the Federal Court held that the Officer’s decision had been reasonable and the Federal Court of Appeal agreed.
On appeal in the SCC, McLachlin C.J. in the majority judgment held that the Officer’s decision was not reasonable for the following reasons:
- On whether K’s mental health would suffer if he returned to Sri Lanka:
- Once the Office accepted the finding of the psychological report (that K suffered from post-traumatic stress disorder), the Officer did not need to ask K to adduce further evidence of his psychological distress, or of whether he did / did not seek treatment, or whether there was any treatment available in Sri Lanka. The Officer unnecessarily focused on the lack of additional evidence and ignored the effect that removal from Canada would have on K’s mental health.
- Psychological reports will necessarily (for the most part) be based on hearsay; only rarely will a mental health professional witness the events for which a patient seeks professional assistance. Requiring mental health professionals to have personally witnessed the events in unrealistic and would result in an absence of significant evidence.
- On whether K would face discrimination if he returned to Sri Lanka:
- The evidence adduced under previous refugee proceedings (and other previous proceedings under ss. 96 and 97) is admissible in H&C applications. However, this evidence must be assessed through the lens of the subsection 25(1) test, and Officers should not undertake another refugee or risk assessment or merely substitute the previous refugee decision in place of their own H&C decision.
- The applicant does not have to provide direct evidence that the discrimination would affect him/her personally; such a requirement would undermine the “humanitarian purpose of s. 25(1) [and] it reflects an anemic view of discrimination that this Court largely eschewed decades ago”. Discrimination can be inferred where an applicant shows that he/she is a member of a group that is discriminated against. Discrimination for the purpose of H&C applications “could manifest in isolated incidents or permeate systemically”, and even a “series of discriminatory events that do not give rise to persecution must be considered cumulatively”.
The SCC in Kanthasamy summarized its criticism of the Officer’s decision as follows: “In this case, the Officer failed to consider K’s circumstances as a whole and took an unduly narrow approach to the assessment of his circumstances. The Officer failed to give sufficiently serious consideration to K’s youth, his mental health, and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessing each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”. The Officer’s literal obedience to those words, which do not appear anywhere in s. 25(1), rather than looking at K’s circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion, rendering her decision unreasonable.”
CURRENT H&C TEST (SUMMARY)
The applicant must establish on a balance of probabilities that there are sufficient humanitarian and compassionate reasons to allow his/her application from within Canada.
Officers making H&C determinations must weigh all factors before them. However, they generally focus on three H&C reasons:
1) Hardship
2) Best interests of Child
3) Establishment in Canada
- Hardship
Applicants should establish that if they are removed from Canada, s/he will face either unusual and undeserved hardship” (hardship not anticipated or addressed by the Act or its regulations, and is beyond applicant’s control) or disproportionate hardship (hardship that would have an unreasonable impact on the applicant due to his/her personal circumstances)
- The Guidelines set out non-exhaustive factors relevant to unusual & undeserved//disproportionate hardship (in s. 5.11):
- Establishment in Canada;
- Ties to Canada;
- Best interests of any children affected by their application;
- Factors in their country of origin (includes but not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in [ss. 96 and 97]);
- 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 [ss. 96 and 97]. [Emphasis added.]
- The words “unusual & undeserved or disproportionate” are instructive, not determinative. They do not create three new thresholds for relief; they merely provide assistance to the immigration officer and fetter the immigration officer’s discretion to consider factors other than those listed in the Guidelines.
- There will inevitably be some hardship associated with being required to leave Canada, this alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds
- Best Interests of the Child
The immigration Officer must take “into account the best interests of a child directly affected”. (Applies to all children under 18 years of age)
Decision makers must consider factors relating to a child’s emotional, social, cultural and physical welfare. These factors (set out in the Guidelines) may include, but are not limited to:
- Age of the child;
- Level of dependency between the child and the [H&C] applicant or the child and their sponsor;
- Degree of the child’s establishment in Canada;
- Child’s links to the country in relation to which the [humanitarian and compassionate] assessment is being considered;
- Conditions of that country and the potential impact on the child;
- Medical issues or special needs the child may have;
- Impact to the child’s education; and
- Matters related to the child’s gender.
- Applies to children whether the live in Canada or elsewhere
An H&C determination will be unreasonable if the interests of children affected by the decision are not sufficiently considered. This means decision-makers must do more than simply state that the interests of a child have been taken into account; those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence.
If the applicant is a child:
- “Unusual & undeserved hardship” is presumptively inapplicable to hardship assessment (since children will rarely, if ever, deserve hardship)
- Best interests of applicant must be treated as a significant factor in the analysis
- Best interests of applicant must also influence the manner in which the child’s other circumstances are evaluated
- Circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief
Courts have consistently held that the younger a child is, then the lower the impact of a parent’s removal will generally be.
- Establishment in Canada
Being well established or settled in Canada increases an Applicant’s chances of success. To show that s/he is established, a person’s application could refer to such things as:
- How long s/he has lived in Canada
- Why s/he has been living in Canada
- His/her work history in Canada
- His/her level of education
- His/her skills and training
- Volunteer work done in Canada
- His/her ability to speak English or French
- Any children born in Canada
- Family members here who are willing and able to help him/her
- Any assets or savings s/he has in Canada
An Applicant who received social assistance should explain why s/he needed it
An Applicant who became established in Canada during their childhood /teenage years will be more severely affected if removed from Canada
Overall, immigration officers making H&C determinations have discretion to holistically determine whether there are sufficient H&C grounds to warrant approval. Immigration, Refugees and Citizenship Canada cannot bind them to an overly rigid standard.
POST-KANTHASAMY CASELAW
As of February 5, 2018 there were 213 cases decided by the Supreme Court, Federal Court (including Appeals) and IRB-IAD which cited Kanthasamy.Below are a few decisions that show how the Kanthasamy principles are being applied (most address the best interests of the child):
Lewis v. Canada (Public Safety and Emergency Preparedness) 2017 FCA 130
In this Federal Court of Appeal decision from last year, Justice Gleason clarifies that the best interests of the child are not paramount, but only a primary consideration in Humanitarian and Compassionate appeals and only when a request has been made under Section 25, where that analysis takes place. Justice Gleason does conclude that the sole custodial father’s return to Guyana is not in the best interest of the child who is part Gwich’in. She points to the Immigration Enforcement Officer’s assumption that the eight-year-old would be able to return to Canada on her own to continue her cultural connection with her maternal culture as “pure speculation”.
Gomez Valenzuela v. Canada (Citizenship and Immigration), 2016 FC 603
This case is a good example of how an Officer’s assessment of the best interests of the child should now be conducted since Kanthasamy. Justice Diner wrote:
Visa officers may be presumed to know that applicants would benefit from life in Canada but this does not relieve them of the obligation to identify and examine the interests of any affected child with “significant attention” and care. The Officers, in focusing only on the positives of life in Ecuador and the negatives of life in Canada, did not conduct their examination with the necessary level of attention and care.
Semana v. Canada (Citizenship and Immigration), 2016 FC 1082
Ms. Semana was found inadmissible for misrepresentation, which she appealed based on H&C grounds. She received a negative H&C decision, which she judicially reviewed, arguing that the IAD improperly assessed the best interests of the child (“BIOC”) factor, since it neglected to follow the threestep process for considering the children’s best interests, as set out in Williams v Canada (Citizenship and Immigration), 2012 FC 166. Justice Gascon disagreed and held that the IAD is required to be “alert, alive and sensitive” to the best interests of the children. Pursuant to Baker and Kanthasamy, the interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence”. However, there is no specific formula required for a BIOC analysis; there is no “magic formula to be used by immigration officers in the exercise of their discretion”. Justice Gascon further noted that in Kanthasamy, the SCC did not adopt the three-step approach laid out in that decision.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76
This was a decision in which the SCC held that the best interests of the child are not determinative in the analysis. The SCC stated:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice. (Emphasis added.)
Nevertheless, while the best interest of the child does not necessarily trump other factors for consideration, decision-makers must consider children’s best interest as an important factor, giving them substantial weight, being alert to them, and being sensitive to them.
Cortez v. Canada (Citizenship and Immigration), 2016 FC 800
This case is another judicial review of a negative IAD decision on misrepresentation. Mr. Cortez argued that courts should presume that the actions of parents are indicative of the children’s best interests. Justice Diner said he could not agree that the default position in a BIOC analysis is that whatever the parents do in practice with or for the child is in the child’s best interest; rather, the decision maker can rely on its own assessment.
Sutherland v. Canada (Citizenship and Immigration), 2016 FC
Ms. Sutherland judicially reviewed a negative decision of her H&C application. Psychological evidence showed that removing Ms. Sutherland from Canada and returning her to her home country would worsen her mental health problems. The court found that in these circumstances, it was not enough for the Officer to simply look at whether mental health care was available in her home country; the Officer had to expressly take into consideration “the effect of removal from Canada would be [on her] mental health”.
Canada (Public Safety and Emergency Preparedness) v. Nizami, 2016 FC 1177 Justice Shore affirmed that the H&C exemption is an exceptional, discretionary remedy. As such, they should only be available for exceptional cases in order to avoid becoming an “alternative immigration stream” or an appeal mechanism.
Li v. Canada (Public Safety and Emergency Preparedness), 2016 FC 451
Mr. Li appealed his removal order based on humanitarian and compassionate grounds and the best interests of his child, since his wife was pregnant at the time of the IAD hearing. The IAD had stated the best interests of the child did not need to be considered since the child was not yet born (and therefore had no interests per se). Justice Shore held that the IAD should at least have considered the child’s interest in being reunited with her family in Canada.
Tabatadze v. Canada (Citizenship and Immigration), 2016 FC 24
This was a judicial review of an H&C decision. Justice Brown confirmed that professional health reports are of value to the extent that they contain health care-related evidence; they should not be rejected because they fail to name a claimant’s assailant(s).
