Judge sets aside H&C refusal in the case of a 93-year-old UK citizen

Immigration Matter  –  Sukhram Ramkissoon

Judge sets aside H&C refusal in the case of a 93-year-old UK citizen

Sukhram Ramkissoon

Under Canadian immigration laws, a foreign national who is in Canada may make an application for permanent residence requesting an exemption “from any applicable criteria or obligation” of the Act because of any hardship that person may or will face if removed from Canada. The immigration minister may then grant permanent residence ” if the Minister is of the opinion that it is justified by humanitarian and  compassionate consideration relating to the foreign national.”

 Let’s look at the case of Mr. B, a 93-year-old, a citizen of the United Kingdom who came to Canada in 2017.   According to a recent decision of Federal Court, Mr. B applied for humanitarian and compassionate (H&C) relief soon after he arrived in Canada.  He wanted to reside permanently in Canada. His daughter, son and other close relatives are Canadian citizens and well established.

In his application, Mr. B stated that he came to live with his daughter and her family, following the death of his wife. He is in good health, has three children, two in Canada and one in the UK. He  has four siblings. Three of them live in Canada and relatives of his late wife also live in Canada.

Mr.B submitted several documents in support of a complete and compelling H&C application. Since his entry to Canada in 2017, he  maintained his visitor’s status,.  At the time of the decision of his application, he held “implied” status, which means  he. was waiting on a decision of his visitor’s extension application.

The deciding officer, who is a delegate of the Minister, found that Mr. B demonstrated family ties and that his pension income and proceeds from the sale of his home in the U.K. determined him to be financially stable.  However, the officer concluded that because Mr. B acknowledged that his daughter would be an eligible sponsor, a successful sponsorship could be expected and therefore he could be sponsored as a member of the family class.

The officer also concluded that Mr. B could apply for a super visa which would allow him a two-year, uninterrupted stay while a sponsorship application was pursued. However, on the question of hardship, the officer dismissed Mr. B’s claim that a separation from his children would constitute a hardship since he had been able to maintain a close relationship with them for decades while he lived in the U.K.   As well, Mr. B did not provide sufficient evidence to show that he would need to live in a nursing home on his return to the U.K. 

Based on the refusal of his application, Mr. B sought judicial review of the officer’s decision.   At the Court hearing, he argued that the officer did not engage in a meaningful way with the evidence of  his advanced age and need for support.

In allowing judicial review, the judge  stated, that “the Officer, in his view, erred in her assessment of the hardship Mr. B. would face because she unreasonably presumed that he had a network of family and friends in the U.K. On the issue of family, the evidence was that his son was not close to him and suggested that he live in a nursing home, and that Mr. B.’s sister was also elderly. Further, there was no basis for a presumption that, after two years in Canada, he had maintained a network of friends. Lastly, given his age, it was unreasonable to assume that he would still have friends from his working life.”  

The H&C application will now be returned to a local IRCC office to be reconsidered by a different officer.                                          

In the many years of my experience, I have often seen  applications like this which have been refused. Clients then had to seek judicial review which can be an expensive process. However, in order to challenge a negative H&C decision, a person must seek leave and judicial review from the Federal Court.  By taking this route, a person cannot simply disagree with the negative decision but must argue there was a significant error or multiple errors made by the deciding officer.  In this case, the learned judge found the officer was not sensitive in examining the personal circumstances of Mr. B and the hardships he would face if he returned to the U.K.  Clearly, the officer did not examine the objective of family re-unification, for an elderly person, who desires  to be with his loved ones in Canada  who will look after his needs.

It saddens me that the officer did not consider the established evidence which would have moved  a reasonable person, in a civilised community to relieve the  hardship of another.  The officer should have stepped in the shoes of Mr. B which is a consideration that has been established in another Federal Court case,  to better understand Mr. B’s  situation.

All officers who are dealing with H&C applications should use their discretion in a way that truly reflects compassion.  

 SUKHRAM RAMKISSOON is a member of ICCRC and specialists in Immigration Matters at No. 3089 Bathurst Street, Suite 219 A. Toronto, Ontario M6A 2A4 Phone 416 789 5756.