Foreign nationals who are in Canada and would face some special hardship if they had to return to their home country can apply for permanent residence on humanitarian and compassionate (H&C) grounds.
This is a kind of in-Canada application where the immigration authorities can grant permanent residence if they consider there to be compelling reasons as to why the applicant should be allowed to remain in Canada.
Under section 25 of the Immigration and Refugee Protection Act an immigration officer may waive nearly any provision of the law if it is justified on humanitarian and compassionate grounds. The basic test is whether the applicant would experience unusual, undeserved or disproportionate hardship if required to leave Canada and return to their home country.
Making an application on humanitarian and compassionate grounds allows an applicant to request the immigration authorities to waive the usual requirement to apply for permanent residence through one of the standard immigration categories. An application on humanitarian grounds can be made by persons who are in Canada illegally and who are inadmissible to Canada for various reasons. This allows for persons who are long-term illegals in the country to step forward and ask to be granted permanent residence on humanitarian grounds. Failed refugees may also make a humanitarian application if more than a year has passed since their case was decided, or the best interests of a child are involved. People who would normally qualify for permanent residence but are inadmissible for minor criminality or by reason of some other legal barrier can also apply for residence on humanitarian and compassionate grounds if the circumstances are warranted. This includes undeclared family members who would not normally qualify for family sponsorship: they too can apply for residence on H&C grounds.
In considering whether to grant an application on humanitarian grounds, the immigration authorities will typically consider the following factors:
- Whether the circumstances that led the applicant to remain in Canada were beyond their control
- Adverse conditions in the applicant’s country of origin
- How long the applicant has been in Canada
- How long the applicant has remained in one community in Canada
- Ongoing relationships to family members in Canada and the current immigration/citizenship status of those family members
- Whether the family has the option of being together in another country
- The particularly circumstances of all family members
- Financial dependence of the family members on the applicant
- The applicant’s history of stable employment and sound financial management
- Whether the applicant has integrated into the community through involvement in community organizations or other activities
- Whether the applicant and his family members have a good civil record in Canada
Apart from the above factors that largely relate to establishment in Canada, one of the most important considerations in a humanitarian application is the best interests of any child affected by the decision. A child is someone under the age of 18.
The child does not have to be a Canadian, but could be a child of any nationality. If the person applying for permanent residence on humanitarian grounds has children, or there are any children that are dependent on the application in some way or would be negatively affected by a refusal of the humanitarian application, then the immigration authorities have a legal obligation to consider the child’s best interests in detail before making a decision in the case.
This principle was first enshrined by the Supreme Court of Canada in the 1999 Baker decision, and was reiterated by the Supreme Court in the Kanthasamy decision in 2015.
The immigration authorities will generally consider the following factors when assessing the best interests of a child in a humanitarian and compassionate application:
- the age of the child
- the level of dependency between the child and the H&C applicant
- 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
- the impact to the child’s education
While the presence of a child who will be negatively affected by a refusal of the humanitarian application is an important consideration by the immigration authorities, it is not determinative of whether the application will be approved. Each humanitarian application will be decided on its own merits whether or not there is a child involved. These are highly discretionary decisions generally made by an immigration officer and it is very important to obtain experienced legal representation in order to present your case in the best and most persuasive manner possible. At the Law Office of Matthew Jeffery we have years of successful experience assisting clients with humanitarian and compassionate applications. Please contact us for further information and to discuss your case in detail.
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