Applying to remain in Canada under H&C grounds
Every year thousands of persons apply to remain in Canada under Humanitarian and Compassionate (H & C) grounds. They may include those who have been convicted under the criminal code for certain offences, long term overstay applicants, persons who have previously misrepresented themselves, failed refugee claimants- and others.
But what are the basic criteria for an H&C application?
Firstly, it should be noted that an H & C application is one of exceptional and compelling circumstances and not just not an additional process in seeking permanent residence .
Canada’s immigration law stipulates that the (Immigration) Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible (the law stipulates certain types of persons who are excluded from seeking relief, but allows certain persons who otherwise are inadmissible) and applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant that foreign national permanent resident status, if the Minister is of the opinion that it is justified by humanitarian and compassionate consideration relating to the foreign national, taking into account the best interests of a child directly affected.
That’s quite a mouthful! In other words, if the Minister (or his/her representative, (an immigration officer), is satisfied that there are humanitarian and compassionate factors applicable to a person’s circumstances, taking into account the best interests of a child or children who will be directly affected by the decision of the application, an exemption from ANY applicable criteria or obligations of the Act will be granted. Therefore, if the person is inadmissible and not excluded from applying for humanitarian relief, that person’s inadmissibility will be exempted.
It should be noted that decisions on the outcome of these types of applications are purely discretionary. The test is established in the Ministerial Guidelines of the Immigration publications, and the pure meaning of H&C considerations, as described in case law. These considerations are defined as “those facts, established by the evidence which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another” – so long as these misfortunes warrant the granting of special relief from the effect of the provision of the Immigration and Refugee Protection Act.
Applicants may rely on their request for H&C on any number of factors including, but not limited to:
“ Establishment in Canada; family ties to Canada; the best interests of any children affected by their application; factors in their country of origin (this includes but not limited to: medical inadequacies, discrimination that does not amount to persecution, harassment of other hardships that are not described in the Act); health considerations; family violence considerations; consequences of the separation of relatives; inability to leave Canada has led to establishment.
If the applicant is a long-term resident and through his employment and community ties suggested evidence could included, but not limited to:
- letters from employer, financial situation, homeownership or rental documents, religious establishment, letters from friends and family.
- Immigration history is also crucial in an application.
TIES TO CANADA:
If the applicant has a Canadian- born child or children and provides documents proving relationship and involvement in the child’s life.
Documentation including relationships to any other family in Canada such as parents, siblings, and other close family members may be also considered.
HARDSHIP IN HOME COUNTRY:
In most cases it is important to address the enormous hardship the applicant will face if he or she has to leave Canada and apply from overseas. Several issues could be addressed under this factor. The long absence from his or her home country, possible lost in contact with friends, family and job opportunities.
Also, country conditions would have to be addressed with supporting documents. Factors such as medical issues/conditions, accessibilities to the necessities of life (i.e.) access to education for children, health care, etc.
Readers should bear in mind that these are just a few examples of factors that should be addressed and accompany a humanitarian and compassionate application. However, each case depends upon the applicant’s personal circumstances such as age, sex or country of birth and as stated, decisions are purely discretionary.
Please note that that the information provided in this column should not be interpreted as legal advice. Anyone interested in submitting an H & application should therefore seek legal advice.
SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.