Humanitarian and Compassionate Grounds

What Are Humanitarian and Compassionate Grounds in Canadian Immigration Law?

In the context of Canadian immigration law, Humanitarian and Compassionate (H&C) grounds serve as a discretionary measure to allow foreign nationals who are otherwise inadmissible or do not meet the criteria under regular immigration classifications to be granted permission to enter or remain in Canada. This is often invoked in cases where rigid application of the law would result in undue hardship or unjust circumstances for the individual involved. Each case is assessed on its own merits, taking into account a wide array of social, humanitarian, and compassionate factors.

How Is Section 25(1) of the Immigration and Refugee Protection Act Relevant?

Section 25(1) of the Immigration and Refugee Protection Act (IRPA) provides the legislative authority for these discretionary measures. This section empowers immigration officers to exempt foreign nationals from the usual requirements under IRPA if there are compelling H&C grounds. These exemptions might pertain to issues such as entering the country, obtaining permanent residence, or being issued a removal order. Notably, a jurisprudential landmark in this area is Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, which broadened the understanding of “discretion” within the H&C evaluation process.

Who Can Apply on Humanitarian and Compassionate Grounds?

Generally, foreign nationals within Canada or seeking entry who find themselves outside the purview of standard immigration classes may apply for relief under H&C grounds. This can include individuals with an expired visa, failed refugee claimants, or those who are otherwise inadmissible. However, certain individuals, such as those with removal orders for security reasons, war crimes, or serious criminality, are precluded from applying under this provision.

Are There Any Inadmissibility Factors That Could Affect My Application?

Yes, inadmissibility factors can indeed impact your H&C application. These factors include criminality, misrepresentation, medical grounds, non-compliance with IRPA, and others. In some instances, these factors may serve as a basis for the outright refusal of the application, while in other cases, they may weigh against the applicant in the overall discretionary assessment. Legal representation is often advised to navigate the intricacies surrounding inadmissibility and its implications for H&C applications.

In sum, H&C applications are complex, and a comprehensive legal argument often needs to be made, especially if inadmissibility factors are at play.

What Factors Are Considered in an H&C Application?

In Humanitarian and Compassionate (H&C) applications under Section 25(1) of the Immigration and Refugee Protection Act (IRPA), immigration officers engage in a discretionary and holistic assessment of various factors. These include, but are not limited to, the applicant’s establishment in Canada, family ties, and the best interests of any children involved. Additional considerations may include hardships that would be faced if the application is not granted, the consequences of family separation, and any compelling circumstances that warrant a positive decision.

How Do Family Ties in Canada Affect My Application?

Family ties in Canada play a crucial role in the assessment of H&C applications. Close relations who are Canadian citizens or Permanent Residents can lend weight to your case. The immigration officers will evaluate the depth of the relationships, the emotional and financial interdependencies, and the potential impact of family separation. Strong family connections in Canada can significantly enhance the credibility and persuasiveness of your application.

What Role Does My Establishment in Canada Play?

Your establishment in Canada is another important factor in H&C considerations. Factors such as length of time spent in Canada, employment history, educational qualifications, community involvement, and any other signs of social and economic establishment are scrutinized. A strong establishment in Canada can indicate that you have integrated well into Canadian society and contribute positively to the community, thereby bolstering your case.

Why Are the Best Interests of a Child Considered?

The best interests of any children directly affected by the H&C decision are given considerable attention, following guidelines outlined in Canadian case law, such as Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Assessments are usually conducted to determine the impact of a negative decision on the child’s education, social development, and overall well-being. This is in line with Canada’s international obligations under the United Nations Convention on the Rights of the Child. The objective is to ensure that decisions do not adversely affect the well-being and future prospects of the child or children involved.

Each of these factors contributes to building a comprehensive and compelling H&C application and should be meticulously documented and supported with relevant evidence.

How to Apply for H&C Consideration?

To apply for consideration under Humanitarian and Compassionate grounds, you’ll need to submit an application to Immigration, Refugees and Citizenship Canada (IRCC). This is generally done using form IMM 5283, the specific form for H&C applications. The application should be accompanied by various supporting documents that substantiate your claim for H&C relief, as well as the required processing fee.

What Forms Do I Need to Complete?

The primary form you would typically need to complete is IMM 5283. Additional forms may include IMM 0008 (Generic Application Form for Canada), IMM 5406 (Additional Family Information), and IMM 5669 (Schedule A – Background/Declaration), among others. The exact requirements can vary depending on the specifics of your case.

What Kind of Supporting Documentation Is Required?

Supporting documentation usually includes, but is not limited to:

  • Personal Statements
  • Affidavits from family members or community members
  • Employment records
  • Proof of establishment in Canada (e.g., property, business ownership)
  • Any evidence that substantiates your H&C claims, such as medical records, educational certificates, or police clearances.

What Is the Application Process?

After completing the necessary forms and gathering all supporting documents, you will send your application package to the designated IRCC office. The application will then undergo an initial review for completeness before it is processed. During this time, you may be asked to attend an interview or to provide additional information.

Where Should I Submit My Application?

You should submit your H&C application to the Immigration, Refugees and Citizenship Canada (IRCC) office specified for such applications. The address should be available in the application guide or on the IRCC website.

How Long Does It Take for a Decision to Be Made?

The processing time can vary significantly based on various factors including the complexity of your case, the volume of applications received by IRCC, and whether additional inquiries or investigations are needed. Generally, it could take anywhere from several months to a few years.

Can I Stay in Canada While Waiting for a Decision?

It’s important to note that submitting an H&C application does not automatically grant you the right to remain in Canada. However, deportation or removal orders are often stayed while an H&C application is under review, unless there are serious grounds for removal such as criminality. Legal counsel can guide you on the best strategies to legally remain in Canada during this period.

Given the complexities and intricacies of H&C applications, it is advisable to consult legal experts who specialize in Canadian immigration law to guide you through the process.

What Legal Precedents Exist for H&C Applications?

The jurisprudential landscape for Humanitarian and Compassionate (H&C) grounds applications has been shaped by several key cases. However, one of the most seminal is Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909. This case has provided critical guidance on the exercise of discretion by immigration officers under Section 25(1) of the Immigration and Refugee Protection Act (IRPA).

How Does the Kanthasamy v. Canada Case Impact H&C Applications?

The Kanthasamy case holds significant sway as it clarified the scope of discretion that immigration officers possess when assessing H&C factors. The Supreme Court of Canada elucidated that the evaluation should not be restricted to the “unusual and undeserved, or disproportionate hardship” test alone. Officers are encouraged to adopt a more holistic approach, assessing the complete circumstances and compelling reasons that would make it unjust or unduly harsh to require the applicant to leave Canada. Consequently, the Kanthasamy case serves as an important touchstone, ensuring a broader and more flexible examination of applications.

What Happens After a Decision Is Made?

Upon the completion of the assessment, the decision will be communicated to the applicant. If approved, the applicant will be granted either permanent residence or an exemption from certain criteria or obligations under the IRPA. The decision may also pave the way for the applicant to apply for permanent residence from within Canada, circumventing the need to apply from abroad.

What Are My Options if My Application Is Refused?

If an H&C application is denied, the applicant generally has limited options. While there is no statutory appeal process, the decision may be subject to judicial review by the Federal Court of Canada. Judicial review is, however, not an appeal but a process to assess the legality of the decision made. The focus is on whether the immigration officer made an error in law or acted unreasonably in dismissing the application.

What Steps Should I Take if My Application Is Approved?

Upon receiving approval, you’ll need to follow the steps outlined in your decision letter, which may include undergoing medical examinations, providing bio-metrics, or submitting additional documents. The decision letter will also guide you on how to finalize your permanent resident status. It is imperative to follow these steps diligently and within the stipulated time frame to ensure that the approval translates into a successful immigration outcome.

By acquainting oneself with these aspects, applicants can better navigate the complexities surrounding H&C applications, thereby enhancing the likelihood of a favorable outcome.

Can I Apply for Other Immigration Programs While Waiting for an H&C Decision?

Yes, you may apply for other immigration programs while waiting for a decision on your Humanitarian and Compassionate (H&C) grounds application. It’s worth noting that an H&C application is generally a separate process and independent from other immigration pathways such as Express Entry, Provincial Nominee Programs (PNPs), or Family Sponsorship. However, being involved in multiple applications simultaneously may complicate matters, especially if one application is approved while another is still pending. It’s advisable to consult with legal professionals familiar with Canadian immigration law to evaluate the implications carefully.

Are There Risks to Having Multiple Immigration Applications?

There are potential risks to maintaining multiple immigration applications concurrently. One significant risk is the possibility of inconsistent information across applications, which can lead to allegations of misrepresentation—a serious offense under Canadian immigration law. This could result in a bar from entering Canada for several years. Another risk involves logistical complications, such as if one application is approved, triggering conditions or requirements that could impact the other application. Again, expert legal advice is highly recommended to navigate these complexities.

What Are the Legal Fees Involved in an H&C Application?

The legal fees for an H&C application can vary significantly depending on the complexity of your case, the amount of documentation required, and the rates charged by your legal counsel. Costs could range from a few hundred to several thousand Canadian dollars. Additionally, the Government of Canada also charges a processing fee for H&C applications, currently set at CAD 550 for the principal applicant, subject to change.

Is Legal Representation Advisable for This Type of Application?

Given the discretionary and complex nature of H&C applications, legal representation is often advisable. A legal expert can help navigate the nuances of Canadian immigration law, assist in gathering compelling evidence, and prepare a robust legal submission to bolster your case. The presence of professional counsel can provide an added layer of assurance, given that H&C applications are subject to a high degree of interpretation and require a well-articulated narrative of humanitarian and compassionate factors.

Consulting with an attorney experienced in Canadian immigration law can provide you with specific advice tailored to your unique circumstances.