H&C Best Interests of the Child

When filing a Humanitarian and Compassionate application, it can take into account the best interests of a child who is directly affected by a decision. This applies to children under the age of 18 years.

Officers are always alert and sensitive to the interests of children when examining these requests through identification and examination of all factors related to the child’s life. However, this obligation only arises when it is sufficiently clear from the material submitted that an application relies in whole, or at least in part, on this factor.

Meaning you have the burden of justifying the basis of your H&C submission. Now it is known that not everyone can explain their situation in words, as it can be difficult to express yourself in writing.  For this reason,  you may be able to provide more information at the interview. If you provide insufficient evidence to support your claim, the officer may conclude that the grant of the exemption is not justified. As with all H&C assessments, the officer has full discretion to decide the outcome of a case.  Doing it right from the beginning is key to the success of your application.

The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. While factors affecting children should be given substantial weight, the best interests of a child are only one of many important factors that officers need to consider when making an H&C or public policy decision that directly affects a child.

A decision on an H&C application must include an assessment of the best interests of any child directly affected by the decision. “Any child directly affected” in this context means a Canadian or foreign-born child and could include children outside Canada.

The relationship between you and “any child directly affected” need not necessarily be that of parent and child but could be another relationship that is affected by the decision. For example, a grandparent could be the primary caregiver who is affected by an immigration decision, and the decision may thus affect the child.

Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that you may raise include:

• the age of the child;
• the level of dependency between the child and the H&C applicant or the child and their sponsor;
• 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;
• medical issues or special needs the child may have;
• the impact on the child’s education; and
• matters related to the child’s gender.