Humanitarian and Compassionate Application Assessment

Who can apply for humanitarian and Compassionate Consideration?

If a foreign national is unable to apply for Permanent Residence under any available class, Humanitarian and Compassionate reasons may be necessary. When a Permanent Residence application is submitted with Humanitarian and Compassionate grounds, the immigration officer must use his or her discretion to evaluate the H & C application and decide if it warrants an exemption from the requirements of the Immigration and Refugee Protection Act. If the circumstances of the application have merit an exemption may be allowed and the Humanitarian and Compassionate application may be granted.

H & C Restrictions

Despite the special provisions allowed for a Humanitarian and Compassionate application, there are still restrictions that can exempt a foreign national from applying. You may not apply on H & C grounds if:

• You have an unresolved Refugee, Humanitarian and Compassionate, or Permanent Residence application
• You are inadmissible to Canada for Security Risks, Human Rights Violations, or Organized Criminality
• You are eligible to apply for Permanent Residence as a spouse, protected person, caregiver, refugee, or temporary resident
• You withdrew, abandoned, or received a negative decision from the Immigration and Refugee Board within the past year. The exception to this rule applies if you withdrew your application before the Refugee Protection Division hearing.

H&C Assessment

Upon assessing a Humanitarian and Compassionate application, the officer must weigh all of the facts of the case in order to determine if Permanent Residence should be granted. Because the application does not fall under any available category, the officer needs to look at the big picture and consider all relevant factors. The following are some key factors that an immigration officer should consider when examining an application made on Humanitarian and Compassionate grounds.

Key Factors the Immigration Officer has to Consider when Examining H & C applications

Onus on applicant

This is perhaps the most important factor in a Humanitarian and Compassionate case. The burden of proof rests with the applicant. This means that the applicant (or the applicant’s counsel) must present detailed information as to why he or she should qualify for special exemption. Documentation proving the applicant’s claims must also be provided, if necessary.

Best interests of a child

One of the most influential factors in an H & C application is how the rejection or approval of the case will affect a child. While influential, the best interests of a child alone usually will not determine the outcome of a Humanitarian and Compassionate application. It is important to note that the applicant must prove that their relationship to the child in question is genuine and that it will cause the child undue hardship if the application is denied.

For example, let’s say a woman has been working in Canada for many years without a valid work permit. She comes from a poor country and uses the majority of her earnings to support her two children back home. She has applied for a Humanitarian and Compassionate application on the grounds that without her Canadian income, her children will suffer and be deprived of the necessities of life. Furthermore, it would be unlikely for her to attain any sort of meaningful employment in her home country due to cultural and economic reasons. In this case, the best interests of a child become a large factor in the final decision.

When determining the best interests of a child, some criteria that an immigration officer may consider are:

• the child’s age
• the conditions in the child’s home country
• the degree of the child’s establishment in Canada
• the child’s reliance or dependency on the applicant
• the effect of a refusal on the child’s education or health care

Hardship

Hardship can also be a significant factor in evaluating a Humanitarian and Compassionate application. The definition of what constitutes a hardship is broad and varies from according to country and culture. The classic test for hardship is this question: If an applicant is forced to leave Canada in order to apply for permanent residence abroad or their application is refused, will he or she suffer?

What constitutes suffering? This is a difficult question to answer. For example, H & C applicants with severe medical issues may claim that returning to their country would result in being able to receive proper medical treatment. In another example, an openly homosexual man claims that if he is returned to his home country, he would be the recipient of unrepentant physical and psychological abuse due to intolerance.

There have even been cases of environmental hardship in certain Humanitarian and Compassionate applications. For example, applicants from Haiti claimed that simply returning to their country would result in hardship due to the massive destruction from natural disasters that affected this region. In this case the hardship would come from not having access to the basic necessities of life (food, water, and shelter).

When assessing hardship upon return to an applicant’s home country, immigration officers will often consider the possibility of relocation. This is sometimes referred to as an Internal Flight Alternative. It is possible that the Humanitarian and Compassionate applicant may avoid hardship simply by relocating to a different region of their country. If this is deemed a viable solution, the hardship claim may be refused.

Inadmissibility

When requesting Permanent Residence through a Humanitarian and Compassionate application, the applicant must be upfront in requesting an exemption from any inadmissibility to Canada that he or she may have. Some different categories for inadmissibility that are often considered are:

• Financial inadmissibility
• Medical inadmissibility
• Inadmissibility of family members
• Criminal inadmissibility

One of the criteria that officers look for is that the applicant has openly requested an exemption to the inadmissibility in question and has provided reasons along with documentation of why this claim is valid. For example, for criminal inadmissibility, an applicant may claim that despite having a criminal record, they are rehabilitated or that he or she received an unjust conviction. As mentioned earlier, the onus is on the applicant to provide compelling proof that this is indeed the case.

Establishment in Canada

When applying for Permanent Residence under Humanitarian and Compassionate grounds, the regulations state that this should be done outside of Canada. However, there are special provisions set up for H & C applicants who wish to apply from within Canada. This special exemption is determined by assessing the applicant’s establishment in Canada. Some factors that can contribute to valid establishment in Canada include:

• The length of time the applicant has spent in Canada (longer is better)
• The applicant’s financial stability while in Canada (did he or she manage their money properly and maintain a steady source of income?)
• The involvement of the applicant in his or her community (volunteer work and membership in community organizations)
• The applicant’s integration into Canadian society (language or other academic study, for example)
• The applicant’s behavior while in Canada (for example, is there any criminal history or patterns of civil disobedience?)
• The applicant’s employment history (have they had stable employment or have there been long periods of unemployment?)

In general, if a Humanitarian and Compassionate applicant can prove that they are reasonably established in Canada, this exemption may be granted.

De Facto family members

An applicant may request that his or her application be considered under this condition if they are dependent on a family that is in Canada or applying to immigrate. In this case the applicant does not meet the definition of a family class member, but he or she is still in a situation of dependence.

For example, let’s say a family has received Permanent Residency in Canada and has relocated there. An elderly uncle still remains behind in the family’s home country. This uncle lived with the family for many years in the home country and is now left without any family of his own. Because this uncle has been dependent on the family for so long, he could potentially apply under Humanitarian and Compassionate grounds stating De Facto family member as the primary consideration.

Thinking of applying for Permanent Residence with a Humanitarian and Compassionate application?

As you can see, applying for Permanent Residence under Humanitarian and Compassionate grounds really varies by the applicant’s circumstances. Every case is unique and it is up to the applicant to put forward the factors that will help the officer determine that the claim is valid. Because there is so much responsibility riding on the applicant in this type of application, it may be advisable to seek legal assistance.

Contact Akrami and Associates

Our team of Canadian Immigration Lawyers and Regulated Canadian Immigration Consultants have the knowledge and experience to help you present a clear and concise argument for receiving Permanent Residence under Humanitarian and Compassionate grounds. Let us help you identify and emphasize the strengths in your application. Be proactive and contact us today!

With Akrami and Associates there is always a way!