Eye Openers on Applications made on Humanitarian and Compassionate Ground

Humanitarian and Compassionate Application is a special provision for foreign nationals who seek permanent residency in Canada but cannot apply for it under regular provisions. This category is permissible in some exceptional cases but it can be exceedingly demanding to get these applications approved. Most of the times, it is extremely hard to establish an individual’s extraordinary circumstances to be able to benefit from this provision.

It is advised to seek experienced legal help when applying under this provision because H&C application is one of the most challenging and complicated provisions to understand for any person uninitiated into Canadian legalities. Your situation must be extraordinary for you, but Canadian government might have a different view to it. Proper and timely consultation can save you from the hassles of adverse results.

Study carefully some of the factors –

  1. Place of Application: Permanent residency applications are generally to be applied for outside of Canada. Inland applications are permitted in some exceptional cases where, for instance, a couple is allowed to make a sponsorship application while in Canada so that the family can remain together during the application process. For Humanitarian and Compassionate Grounds applicants, the application has to be made from outside of Canada unless there is a possibility of a negative impact or a sign of threat for the applicant if he/she moves back into the mother country for the application processing time.
  1. While Staying in Canada: Under this, the immigration officers determine the reasons why an individual could not leave Canada for the time when the permanent residency application is being processed. If an individual’s circumstances are found to be beyond his/her control and they find it impossible to return to their home country because of a threat or a denial from the country, then their case will be reviewed accordingly. Decisions are taken, under these categories, based on the assessments of individual concerns and circumstances.
  1. Ability to establish in Canada: To qualify for this provision, an applicant must prove that he/she is financially robust. The review board will enquire about the applicant’s financial status, job stability or business success, and give impetus only to those who have proven to contribute significantly to Canada’s economy, or who show signs of doing so.
  1. Assimilation into Canadian Culture and Social Life: If an applicant has been staying in Canada previously, he/she will be assessed based on his/her assimilation into Canadian society. An applicant with healthy life skills and social skills proves to be an asset to Canadian community and will be preferably retained by the Canadian government than someone who is ill-adapted to Canadian culture.
  1. In children’s Interest: The Humanitarian and Compassionate plea keeps in special consideration the interests of the children who might be at risk. For an H & C approval, you will have to prove why leaving Canada will bring you disproportionate hardships or prove life-threatening. Only under extreme circumstances can someone be exempted from fulfilling some requisites otherwise mandatory for permanent residency visa. In case, an adult fails to get clearance under H & C program, one can apply through a child as it is Canadian principle to ensure safety and security to children. As said earlier, H & C approvals are very complicated and the strategy can differ from case to case.
  1. In Danger in Home Country: People who can establish that they are under threat of persecution or harassment for religious, linguistic, social, cultural, or sexual orientation in their home country, can apply for permanent residency on H&C basis.

Humanitarian and Compassionate Grounds Category: Who Cannot Apply?

  • Temporary work permit or residential status will not be allowed on H&C grounds.
  • Refugee claimants will not be assessed under this category whose cases are still pending with CBSA or any other equivalent body.
  • Non-Canadians demanding assessment based on risk factors such as threat of persecution or harassment.
  • If the applicant or his/her dependent has a disease that proves them to be medically inadmissible in Canada.

Jobs with a Pre-Condition of a Medical Exam

There are certain jobs in Canada with a pre-condition that the applicant must undergo a medical check before applying. This would apply to those people also whose country is not mentioned in the designated list of countries exempted from a medical exam.

These jobs are of the nature where an individual would require working in an environment where medical fitness is a pre-requisite. For instance, the jobs as a medical practitioner, agricultural worker, caregiver for elders or children, or as teacher etc would require you to prove your medical fitness.

In case you wish to work in one of these fields while already in Canada but do not have a medical exam, you can apply for it while in Canada. You can start working as soon as your application for the change in work permit is approved.

What establishes your Medical Fitness?

You can be declared as medically unfit for immigration to Canada if (i) you suffer from any chronic disease that might affect the health of other Canadian nationals and threaten them in some way, or (ii) if you suffer from an ailment, disease or health problem that might make Canadian health services unnecessarily burdened due to your health condition. However, if you have a sponsor who is ready to take your financial responsibility, any such situation can be overlooked.

A number of factors are crucial in deciding if a person can be admitted immigrating to Canada despite a health condition. The duration of the ailment, its nature, treatment and the strain the health condition would cause on Canadian health services and social services remains an important consideration in determining if he/she can be permitted a permanent residency in the country.

Medical test – Do you necessarily need it before coming to Canada?

IRCC demands people coming from certain countries to undertake a medical exam before coming to Canada. Also, anyone travelling to Canada from the designated countries with the intention of living in Canada for 6 months or more must take the medical test. The updated list of the designated countries is available on the IRCC website.

Any family members accompanying the person migrating to Canada must also undergo a medical test. The medical examination has to be conducted by a panel physician in the applicant’s home country who is a duly approved and authorized by the Canadian government as a medical practitioner. The medical examination includes a regular medical exam including blood tests, x-rays, urine tests, heart and lung tests, skin/hearing/sight/weight/pulse check, and a complete analysis of the applicant’s medical history.

At the time of booking an appointment for a medical check-up, make sure that you inform the medical office that you need a medical exam for immigration purpose. The office will update you on the documents you require to get and the fees. The designated organization will then send your results to the approved Regional Medical Office (RMO). The doctor’ office will give you a document that you would need to submit at the time of the application to prove that you have taken the medical exam. These medical test results will be submitted by the RMO to the visa office.

When should the Medical Exam be Taken? There are mainly two kinds of medical exams for immigration purposes –

  1. Up-front medical examination
  2. Medical exam conducted on receiving a request from visa office

Medical examination is to be done in the applicant’s home country and conducted before the submission of the application. Results of the medical exam remain valid only up to a period of 12 months after which the exam needs to be taken again in case the applicant does not apply during that time. Permanent residency application processing is a lengthy process and might take more than an year, which is which, the medical exam can be done on receiving a request from the visa office.

All those entering Canada as temporary residents including visitors, students and temporary workers, the processing time of the application form is generally shorter and quicker, so they can go with the up-front medical examination. The designated organization will then send your results to the approved Regional Medical Office (RMO). The doctor’ office will give you a document that you would need to submit at the time of the application to prove that you have taken the medical exam. These medical test results will be submitted by the RMO to the visa office.

Appeal on Medical Inadmissibility Finding

People facing rejection on their application on medical inadmissibility finding can apply for a judicial review to the Federal Court of Canada if they are convinced that there is some error in determination of medical inadmissibility. In such a case, it is best to consult an immigration lawyer with specific experience in appeals and reviews. A strong submission along with proper documents that prove that you will not be an extra burden on Canadian health and social services are required to overcome the inadmissibility finding. However, this is neither easy not advisable without an immigration officer. Our firm has many years of experience in dealing with inadmissibility appeals. Our success is resounding in such cases where we have represented many clients who were suffering from diseases that are recognized as inadmissible in Canada. Yet, we have re-united many parents with their children in Canada and many sibling and partners by representing them with the most persuasive counter argument.

Applicants with Special Needs

Applicants with special needs include people with conditions such as autism, spectrum disorder, intellectual disabilities, blindness or deafness. Principal individuals with such conditions or those who have dependents with such conditions, stand a high possibility of being declared medically inadmissible to enter or stay in Canada.

It is best for such applicants to consult an immigration lawyer who has experience and expertise in dealing with such matters. An experienced immigration lawyer will have all the expertise to appeal or challenge medical inadmissibility in most cases. They can also assist you in making a strategy or a compelling submission to overcome a medical inadmissibility finding.

What to do if more Information is sought from you in case of Medical Inadmissibility?

Sometimes, immigration officers can ask you to take an additional medical exam or may ask you to provide additional information on the disease.

If a medical inadmissibility is found against an application, the applicant will be given a fair chance to respond to the medical finding and submit additional documents. In such cases, a response has to be drafted with extreme conviction and persuasion. Such a response must include a compelling argument to prove that the individual will not be an extra strain on Canadian national or social services. Such a submission can also include a detailed account of the doctors and hospitals you are hoping to consult in Canada and provide a proof of your financial status to demonstrate that you are capable of making the required expenses. This will establish that you are financially stable and will not demand any financial support from the Canadian government. Though financial stability of an individual does not guarantee clearance still in some cases it might be considered.

Medical inadmissibility can get extremely complicated in most cases. The best advice is to consult an immigration officer who can help you to make a successful strategy to counter a medical inadmissibility finding. An experienced Immigration lawyer can help you in establishing that there will be no extra burden on Canadian health services. A list of educators and medical experts in the field can also be submitted in such cases to demonstrate that you have sufficient medical assistance available locally.

Medical Inadmissibility – Details

If a foreign national is found to be suffering from a chronic disease which might prove threatening to the other Canadian nationals, or which might put extra burden on Canadian health care and social services, he/she can be held as inadmissible to stay or enter in Canada. The diseases upheld as threatening or a liability on health services include contagious diseases, mental health related ailments, and drug addiction that can cause disruptive and violent behaviour

Any person who is found to be suffering from a chronic disease which might put the life of Canadian nationals under risk or could exhaust Canadian social and health services, will be denied entry to Canada. If any dependent of the principal applicant is found medically inadmissible, the members of the entire family will be denied entry into Canada even if the dependent is not accompanying the family to Canada. The only exemption in this scenario is given to spouses, common-law partners and minors who are being sponsored by Canadian family members.

The assessment of demands on Canadian health and social services is made by considering services including doctor’s consultation, hospital stays, hospital visits, surgeries, therapy sessions, etc. This assessment also includes government-funded support services such as educational support, disability support, mental health services or accommodation services. The immigration officers review the expenses on each of the services that might be availed by the individual, and also determine if such services will be available easily.

Medical inadmissibility is assessed by taking into account if the foreign national will cause excessive demand on Canadian health and social services over next five years (ten years in some specific cases).

To decide such cases there are public policies defining how much health care demand is permissible. This figure is subject to change as Canadian Immigration laws change frequently. Latest guidelines must be enquired when applying.

Refusals on Permanent Residency Application. When should an Appeal be Made?

Immigration application is one of the most crucial documents in the whole process of immigrating to Canada and must be completed with honesty, accuracy and attention. Any information amiss or wrongly filled can lead to irrevocable damage. In a lot many cases, applications may be permanently rejected.

However, what if your application is rejected after all? The Immigration Appeal Division (IAD), Refugee Appeal Division (RAD) and Federal Court of Canada are recognized bodies to hear appeals on issues related to immigration, such as issuance of removal order, a sponsorship application getting rejected, residency obligation violation, or problems related to errors in application forms leading to their rejection. There are various ways in which appeals can be made to the Immigration Appeal Division based on what decision we are appealing against. The scenarios under which you can make an appeal are-

  • When you want to make an appeal on a rejected sponsorship application.
  • When you want to appeal a decision on residency obligation.
  • When you want to appeal a removal order

Since this appeal is time-bound, it has to be filed within 30 days from the day the refusal letter is received. Further, the Minister of Immigration, Refugees and Citizenship Canada (IRCC) produces the appeal record within 120 days from the date the appeal was received. The hearing of these appeals is done with exceptional agility so that applicants may find quick results. In cases where the Division feels that there is no need to wait for a formal hearing, the case is instantly forwarded to Alternative Dispute Resolution (ADR) which involves the applicant arguing for his/her case informally to the Member of the Immigration Appeal Division and the Minister’s counsel. The applicant’s lawyer can also ask for ADR if they want the proceedings to be held without formal hearing.

In all other cases, an appeal is responded with a formal hearing based on which the Immigration Appeal Division (IAD) determines if the appeal has to be accepted or denied. Once the appeal is accepted, the application process will be advanced further by Immigration, Refugee and Citizenship Canada. However, there are certain grave cases where the rejection to an application cannot be revoked. Since national security and individual security of all Canadians is the prime responsibility of the Canadian government, no such application can move further where the government feels national threat to its security; or cases where the applicant has been involved in serious crime, human rights violation, or other forms of deviation from law. We have years of experience in making appeals on behalf of our clients to the Immigration Appeal Division (IAD), which is a recognized body to hear appeals on issues related to immigration, such as issuance of removal order, a sponsorship application getting rejected, residency obligation violation, or problems related to errors in application forms leading to their rejection.

Work Permit for Canada and Work Opportunities in Canada

Foreign nationals will always find themselves welcome in Canada both by the state bodies and the Canadian people. Canadians are one of the most friendly and happy people who are also extremely accommodating. For the purpose of procuring a work permit to work in Canada, an applicant must apply under the Temporary worker program. Those who wish to work in Canada and immigrate to Canada on that account must have a strong submission, appropriate education, work experience, training and language ability. Applicants would also require an arranged employment to be able to apply under this program.

If you interested in visiting Canada to find a job, you must show proof of some interviews that are scheduled during the time of your visit in Canada. Additionally, you must also convincingly demonstrate that you intend to be in Canada temporarily and gave strong ties to your native country, or country of residence. You must also demonstrate that you are financial stable and would be able to support yourself during your stay in Canada. In case you are applying at the port-of-entry, then you can show your return ticket and prove that you have the intention of returning. It is best to contact an immigration legal firm if you intend to travel to Canada for employment opportunities. Any legal firm in business for many years would be able to help you. A law firm, such as ours, also has its own network through which they might get you some contacts  that you can see during your visit.

Types of Work Permits: A visitor cannot start working in Canada without getting a valid work permit. There are different work permits as per the skill set of the individual. The various types of work permits are –

  1. The Temporary Foreign Work Program: Under the Immigration, Refugee Protection Act (IRPA), a foreign worker can conveniently shift to Canada by obtaining a positive LMIA. Whether an LMIA-exempt category is applicable or nor can be determined after an initial examination of the case. If no such category applies, then the Service Canada, upon application, determines if there is a paucity of human resources locally leading to the need for a temporary foreign worker. Once a positive LMIA is received, a foreign national can apply for a work permit.
  2. The International Mobility Program: In the second procedure, i.e., the IMP (International Mobility Program), work permits do not require an LMIA. This includes work permits under the mentioned categories – spousal, post-graduation, intra-company transfers, global work permits for youth, NAFTA and other free trade agreements, and many more. The International Experience Canada program is also a part of this program. The IEC permits applicants from abroad to obtain work permits for a couple of years if they are between 18-30 years (or 18-35 for some countries).

It is best to consult an immigration lawyer while assessing your potential as a foreign worker. An experienced immigration lawyer will lay out the best possibilities for you to choose from and will also help you to make a compelling submission for nomination, or for an arranged employment. That can make your immigration to Canada a very smooth and hassle-free process.

Sponsorship Application Process

There are two stages in the sponsorship program: First where an applicant is reviewed to check his/her eligibility. Second, where an applicant is assessed for permanent resident grant eligibility.

When a sponsorship application gets approved, the applicant and the sponsor are informed that their application is moving to the second stage of processing. After the proper assessment of the application, the applicant will get an approval in principle. Final approval will be received only once all medical and security checks of the applicant have also been assessed and approved.

Application Process: Sponsored spouses, common-law partners (including same sex partners) can apply for open work permit even if they have not received approval in principle. There are three ways in which an application can be made –

  1. In situations where sponsorship and permanent resident applications have yet not been submitted, an open work permit application can be submitted along with the sponsorship application and permanent resident applications. The open work permit application will be assessed after the IRCC officers have assessed the sponsorship application and the permanent residency application.
  2. If a permanent resident application has already been submitted but approval in principle has yet not been received, then the applicant must submit the open work permit application on paper with supporting documents and processing fees.
  3. If a permanent resident application has already been submitted but approval in principle has also been received, then the applicant can submit the open work permit online and not in paper.

If you have already been given an open work permit under any other program and wish to get it extended, then you must apply for extension under the regular extension process of work permits on paper or online. The application form and fees will differ for those who are applying for open work permit under spousal sponsorship program. The applicants are advised to give themselves enough time to collect all their required documents and apply for extension well in time. Also, there is no scope under these programs for errors and inconsistencies. All information provided has to be accurate and verifiable. Best advice is to consult an immigration lawyer who could help you to understand the nitty-gritties of the program and make a compelling submission. That will not only smoothen your application process but will also save you from much unnecessary hassle.

Inland Spousal Sponsorship

IRCC launched this pilot program in 2014 and kept on extending it up to 2019 to keep families together in Canada. This inland spousal sponsorship program permits spouses or partners the facility to get an open work permit while their application is getting processed during their stay in Canada. In this way, the families are never separated and torn away from one another.

Eligibility Criteria for Inland Spousal Sponsorship Open Work Permit: The applicants must meet the following requirements to apply under this program –

  1. The applicant must be a spouse, common-law partner or a conjugal partner, including same-sex partner.
  2. The applicant must have an authentic resident status.
  3. The applicant must be living with their partner (the sponsor) to establish that they are in a genuine relationship.