Parents Consider Applying for PR using H&C Grounds
Posted on 18/10/2021
Can you apply for permanent residence based on Humanitarian & Compassionate grounds if you are temporarily in Canada? Let’s consider a case to illustrate the limits of H&C applications for permanent residence.
The parents of a 25-year old permanent resident of Canada who wish to be with their son on a permanent basis are considering applying under H&C grounds. However, the parents information is as follows:
- They are both 50 years old.
- They already have a Super Visa to visit their son in Canada.
- They want their son to apply for H&C permanent residency in Canada.
We have to ask two questions: can they apply, and should they apply?
I: Can they apply?
Yes they can. IRPA in section 25 (1) states that:
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
So as long as the conditions listed below do not apply, the parents can theoretically apply. Note that the parents must apply, NOT their son on behalf of them.
- If they previously applied for refugee or H&C then at least 5 years must have passed from the original decision.
- If they are a designated foreign national, which means they arrived suddenly and unexpectedly in Canada as part of a group of people who are suspected to have been brought to Canada by illegal means like human smuggling, then they have to wait 5 years from the date of any decision regarding their initial arrival in Canada, or 5 years from the day they were classified as designated foreign nationals.
- If as a designated foreign national they haven’t complied with any conditions imposed on them.
Let’s assume that none of these situations or factors applies to the parents. The question now becomes whether their application for PR status under H&C grounds has any chance of succeeding.
II: Should they apply?
To answer this question, let’s consider the facts concerning the parents:
- They are both 50 years old.
- They are currently visiting their son in Canada under a Super Visa.
- Their son in Canada is their only son.
- The Super Visa is about to expire.
This is not very favorable for the parents applying for H&C based permanent residency. Let’s go through the reasons why:
Section 20 of IRPA states that:
Obligation on entry
- 20(1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
- (a)to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and
- (b)to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
So clearly the obligation on anyone applying for permanent residence in Canada is to have a PR visa in their passport/travel document before arriving at their port of entry in Canada. In other words, you had to have clearly expressed your intent to come to Canada as a permanent resident by applying for and successfully obtaining a PR visa.
The parents did NOT do that. They came to Canada under a Super Visa, which is a very convenient way to be able to visit a family member living in Canada for up to 2 years at a time. And a Super Visa is usually given for periods of 5 to 10 years.
So, the first thing immigration officials would likely ask is: why didn’t they apply for PR under H&C reasons in the first place, rather than applying for a Super Visa? And specifically, what conditions in the parent’s home country would qualify them for H&C reasons?
A possible answer to these questions that could occur to immigration officials in Canada is that the parents consider themselves unlikely candidates for economic immigration, being 50 years old. So, a logical choice would be to be sponsored by their son under Family reunification, not H&C. However, to be sponsored under Family reunification – Sponsoring Parents and Grandparents – the son would have to meet strict income requirements and at 25 years old he may not yet be earning enough to qualify as a sponsor.
Remember that in a sponsorship application, both the sponsor and the sponsored relative (spouse, dependent child, parent, grandparent) have to apply and meet requirements, so one option would be for the parents to wait a few years until their son is earning a better income, one that would qualify him as a sponsor of his parents.
However, the parents and son seem to have chosen H&C as a possible shortcut. It should NOT be seen as an easy way and might even backfire on them. Let’s see how.
IRCC will look at a number of factors in deciding a case like this:
- Why did the son immigrate to Canada? Were there other factors aside from economic ones like political instability or social discrimination?
- How well-established are the parents in their home country? Do they have reasonably good incomes or a business and do they own their home?
- Do the parents have siblings or even parents/uncles/aunts etc. that could help and support them in their home country?
- Has there been any traumatic personal situation – like the death of a child – that has made the parents emotionally vulnerable and in great need of being with their only son (in this case also their only remaining son)?
- Why isn’t a Super Visa good enough for them?
- Has the son, in fact, previously applied to sponsor them and been unsuccessful?
Remember that to be accepted under Humanitarian & Compassionate grounds the Supreme Court of Canada has clearly stated that:
The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] 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 provisions of the Immigration Act”:
So, you would have to reasonably sure that the parents situation in their home country would impel in others a desire to relieve their misfortunes. In general, those have to be situations like civil war or political persecution or social discrimination of a fairly aggressive nature. The basic facts of our case do not seem to suggest anything of the sort. But, if you can prove something of this sort, or some extreme personal trauma on the part of the parents and their family, you might have a chance. But the odds are not good.
The best strategy would instead be for the son to apply to sponsor them when he feels his income is sufficient.