H&C Flashcards
Who Can Use ?
You may use this application to apply for permanent residence from within Canada on humanitarian and compassionate grounds (H&C) if you:
- are a foreign national currently living in Canada;
- need an exemption from one or more requirements to apply for permanent residence within Canada;
- believe humanitarian and compassionate considerations justify granting the exemption(s) you need; and
- are not eligible to apply for permanent residence from within Canada in any of these classes:
- Spouse or Common-Law Partner;
- Live-in Caregiver;
- Caregivers: caring for children or people with high medical needs;
- Protected Person and Convention Refugees; and
- Temporary Resident Permit Holder.
My spouse or common-law partner is a Canadian citizen or permanent resident
If your spouse or common-law partner is a Canadian citizen or permanent resident, your spouse or common-law partner can sponsor you. using the application for PR from within Canada
Note: You are not required to have legal immigration status to apply for permanent residence in the Spouse or Common-Law Partner in Canada Class.
Who May not Use this Application ?
You may not apply for H&C consideration if you:
- are a Canadian citizen,
- a permanent resident,
- have submitted an H&C application for which a decision has not been made
- have an outstanding refugee claim,
- became a designated foreign national within the last 5 years.
- inadmissible for reasons of security, human rights or organized criminality
Designated foreign national, you may not apply for H&C for at least 5 years after the day of your designation or the date of the decision on application or appeal in the following:
- refugee claim at the Refugee Protection Division, Immigration and Refugee Board (IRB),
- appeal to your rejected refugee claim (at the IRB’s Refugee Appeal Division), or
- application for a Pre-removal Risk Assessment,
* This bar does not apply to refugee claimant who have children under 18 and be would be adversel affeted by the claimant’s removal or if the dependent has a life threathening medical condition
In addition you may not apply for H&C consideration if you:
- had a refugee claim that was rejected (including claims that were abandoned) within the last 12 months by either theRPD or RAD, or
- withdrew a refugee claim within the last 12 months, unless the claim was withdrawn before your hearing at the IRB.
The “12-month bar” There are exceptions to the 12-month bar. You may be excepted if:
- you provide sufficient credible and objective evidence that there are children under 18 years of age who would be directly and adversely affected if you were removed from Canada; or
- you provide sufficient credible and objective evidence that you or a failed refugee claimant included in your application, if returned to home country, would be subject to a risk to life caused by the inability of your country(ies) of nationality, or former habitual residence if you don’t have a nationality, to provide adequate health or medical care.
Are you under removal order?
If you are under a removal order and decide to submit an application for permanent residence based on H&C, it will not delay your removal from Canada. You must leave on the specified removal date. We will continue to process your application and we will notify you of the decision in writing.
Concurrent applications for H&C and renewal of temporary resident status
If you are applying to renew your temporary resident status in Canada (student, visitor, worker, etc.) at the same time as your application for H&C, do not include your temporary resident renewal application in the same envelope.
You must pay for this application separately and it must be mailed to the Case Processing Centre in Edmonton, Alberta. The Humanitarian Migration office in Vancouver only processes H&C applications.
Humanitarian and compassionate grounds
Normally, foreign nationals who wish to immigrate to Canada must apply for and obtain a permanent resident visa from abroad. Foreign nationals do not have the right to apply for permanent residence from within Canada if they do not meet the requirements of an in-Canada immigration class, or if they are otherwise inadmissible.
However, section A25(1) ) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent residence, or for an exemption from a requirement of the Act, based on humanitarian and compassionate (H&C) considerations.
Note: A person is only allowed to have one H&C application under consideration at any time.
A written request for H& C must accompany either an application to remain in Canada as a PR or for FN outside of Canada, an application for a PR visa (r. 66)
Consideration
Applying for H&C consideration is an exceptional measure – it is not simply another means of applying for PR in Canada.
In order to be considered for an exemption from the usual requirements of IRPA, you must:
- clearly indicate in your application the specific exemption(s) you are requesting.
- provide all details related to your request including the reasons why you believe an exemption(s) should be granted on H&C grounds.
- demonstrate that there are sufficient and compelling reasons for you to be granted an exemption allowing you to apply for permanent residence from within Canada.
Excemption to the 1 yr Bar
If you are subject to a one year bar on applications for permanent residence, and you are requesting an exception to the bar, you must provide information to support that request. It is also your responsibility to ensure that the information you provide is correct and up-to-date. This means that if your personal situation changes after you have submitted your application, you must notify us immediately in writing.
A change in your personal situation can refer to any of the following: marital status, birth of a child, criminal convictions, change of employer, etc.
Inadmissibility - H & C Grounds
If you are unable to resolve your inadmissibility, you may request an exemption on humanitarian and compassionate grounds to overcome the inadmissibility; however such exemptions are given only in exceptional circumstances.
Factors that may be considered for H&C
- establishment in Canada
- an inability to leave Canada that has led to establishment
- ties to Canada
- best interests of any children affected by your application
- health considerations
- family violence considerations
- consequences of your separation from relative
- factors in your country of origin (not related to seeking protection)
- any other relevant factors you wish to have considered that are not related to seeking protection.
Best interests of the child
The best interests of any children directly affected by the decision made on your application will be taken into consideration in the assessment of your application.
Factors related to the best interests of the child may include but are not limited to the:
- age of the child,
- child’s establishment in Canada,
- conditions in the country of origin that could impact the child,
- medical needs of the child,
- child’s education, or
- child’s gender.
The best interests of a child do not outweigh all other factors in a case. The best interests of the child are only one of many important factors that will be considered by the decision maker.
Note: You must provide specific information and supporting documents to demonstrate how the child or children inside or outside of Canada would be affected.
Do family members need to apply separately?
You may include your family member(s), residing in Canada, in your application for permanent residence.
Family members residing abroad cannot be included for concurrent processing. However, in your application, you must list all your family members residing inside Canada or abroad. Your spouse or common-law partner and children must meet all the requirements to become permanent residents of Canada.
Case Law :
Vavilov
Explains that reviewing court must ask whether the decision bears the hallmarks of resonableness - justification, transparency and intelligibility and whether it is justifiable in relation to the relevant factual and legal constraints that bear on the decision
This leaves the officers with very considerable latitude in decision making.
Case Law
Kanthasamy
- broad and inclusive definition of what constitutes humanitarian and compassionate grounds
- reasonability of the fair minded Canada and establishing the previous threshold was not correct.
- the court identified the best interest of the child has to be well identified and defined and examined with a great deal of attention
- Also established that the applicant will not have to leave Canada to apply for H& C and PR like the typical route, if they have an established life in Canada
2 Criterias specifically requiring the considerationon in the determination of an H & C application
- Best Interest of the Child affected by the decisions
- Public Policy Consideration
- excluded family members
- non biological children who are separated from their Canadian family
- parents and siblings of child refugees in Canada
- other family members of persons in Canada in situations in which there are specific humanitarian concerns (gernalized risk)
It is up to the applicant to satisfy the officer with all the required information.
Best Interest Of Child
The Minister must consider the following issues
- the child’s emotional, social cultureal and physical welfare
- the child’s age
- level of depency on the applicant
- degree of the child’s establishment in Canada
- links to the country where the H&C assessment is being considered
- the condition of the country and their impact on the child
- the child’s medical issues or special needs
- the impact on the child’s education
- matters related to the child’s gender
The provision applies to the child whether they are a citizen or a FN
