Typically, foreign nationals who wish to immigration to Canada must apply for and obtain 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 25(1) of the Immigration and Refugee Protection Act (“IRPA”) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent resident status or for an exemption from the requirements of the Act, based on humanitarian and compassionate (“H&C”) considerations. It is important to note that applying for humanitarian and compassionate consideration is an exceptional measure, meaning it is not simply another means of applying for permanent resident status in Canada.
Who can apply for humanitarian and compassionate grounds in Canada?
To be considered for an exemption under the standard requirements of IRPA, as the humanitarian and compassionate applicant, you must:
1) clearly indicate in your application the specific exemption(s) you are requesting;
2) provide all details related to your request, including the reasons why you believe an exemption should be granted on humanitarian and compassionate grounds;
3) demonstrate that the compelling reasons are sufficient for such an exemption.
Furthermore, you may use a humanitarian and compassionate grounds application from within Canada if:
You are a foreign national currently living in Canada
You need an exemption from one or more requirements of the IRPA in order to apply for permanent residence within Canada
You believe humanitarian and compassionate considerations considerations justify granting the exemption(s) you need; and
You are not eligible to apply for permanent resident status 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
Who is considered a foreign national for the purpose of a humanitarian and compassionate application?
The Minister of Public Safety advises individuals when they become a designated foreign national. Foreign nationals cannot apply for humanitarian and compassionate applications for at least 5 years after the day they become a foreign national, or if you are a designated foreign national and made any of the following applications, and five years have not passed since the date of the decision:
A refugee claim at the Refugee Protection Division, Immigration and Refugee Board (“IRB”)
An appeal to your rejected refugee claim at the IRB’s Refugee Appeal Division, or
An application for a pre-removal risk assessment.
What is the 12-month bar?
You cannot apply for H&C consideration if you fall under what is called the 12-month bar. The 12-month bar can be categorized into the following two categories:
Had a refugee claim that was rejected (including claims that were abandoned) within the last 12 months by either the Refugee Protection Division or the Refugee Appeal Division of the IRB, or
Withdrew a refugee claim within the last 12 months, unless the claim was withdrawn before your hearing at the IRB.
However, 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 to be 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 your 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
What does an immigration officer look for in a humanitarian application?
Applications for humanitarian and compassionate claims are assessed individually and on a case-by-case basis. There are many factors considered in the application process, including the following:
Establishment and Ties to Canada: This factor looks at how settled the applicant is in Canada, and their future ability to continue establishing themselves successfully in Canada if granted permanent residency. It looks at the prospects of integration into, and contribution to the Canadian society. Establishment can also refer to familial and communal ties the applicant has developed since coming to Canada. Sometimes, an applicant’s inability to leave Canada leads to establishment that the officer should take into consideration when reviewing your humanitarian and compassionate application.
Best interests of the child: When there are children involved in a humanitarian and compassionate application, the best interests of any children directly affected by the decision of the applicant will be taken into consideration. Factors related to the best interests of the children may include, but are not limited to the age of the child, the child’s establishment ,conditions in the country of origin, medical needs of the child, child’s education, or their gender.
Health Considerations: This factor involves evaluating the applicant’s health condition and the potential impact removal to their country of origin would have on their health
Hardship: Hardship refers to a situation that would cause serious and undue exceptional circumstances should you be forced to return to your country of origin. Such hardship can be defined as unusual, undeserved, and not anticipated.
What document should I submit with my humanitarian and compassionate grounds application?
In addition to the mandatory identification documents, police certificates, and Immigration, Refugee, and Citizenship Canada (IRCC) forms, documentary evidence will be one of the most important factors in your H&C application. Examples of documentary evidence include, but are not limited to:
Letters from family and friends in Canada
Proof of previous and current employment
Evidence to demonstrate hardship in your country of origin
Information about your children
Medical records
Bank statements and financial records
Photos of your time in Canada
My H&C application has been refused. What are my options?
As with most immigration applications, there is no guarantee your application will be approved. However, if your H&C application has been refused, you may have reasonable grounds to file an Application for Leave and Judicial Review with the Federal Court of Canada.
Why hire a lawyer at AKM Law for my H&C based permanent residency application?
A Canadian permanent residency application based on humanitarian and compassionate grounds is incredibly discretionary in the eyes of an IRCC officer, and therefore, hiring a lawyer with experience and expertise will provide you with the guidance to compile a strong application.
Individuals filing for PR under H&C grounds often come from unique circumstances and complex immigration histories. With this in mind, a Canadian immigration lawyer can assess the strengths and weaknesses of the case, identify potential challenges, and develop a strategic legal strategy to maximize the changes of success. Furthermore, immigration lawyers can help potential applicants understand their eligibility for other immigration pathways, even beyond H&C applications.
Compiling an H&C application can become overwhelming if you are handling it on your own. We at AKM Law can assist in gathering and organizing all necessary documentation, including medical records, personal statements, affidavits, support letters, and more. We will ensure that your application is complete, accurate, and compiled and presented in a persuasive manner for the reviewing IRCC officer.
