Humanitarian & Compassionate grounds
If you are established in Canada but you don’t have legal status in Canada, and you do not fit within any existing immigration categories, then you may be able to apply for permanent residence based on Humanitarian and Compassionate (H & C) grounds.
Normally, a foreign national who wants to immigrate to Canada must apply for and obtain a permanent resident visa from outside of Canada. However, if you have an exceptional situation, or sometimes even you are inadmissible, you can apply for an exemption from immigration’s requirement based on H & C considerations.
This is set out in Section A25(1) of the Immigration and Refugee Protection Act (IRPA), which states that you can apply for an exemption of a requirement of the IRPA, based on humanitarian & compassionate grounds.
In order to be considered for an exemption from the usual immigration requirements, you must:
- 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.
- Prove the unusual hardship you will be forced to experience should you have to return to your home country or country of residence.
- Clearly indicate the specific exemptions you are requesting (what parts of the IRPA you are unable to comply with and why you are unable).
- Give all the details and reasons why you believe you should be granted an exemption.
The following factors are usually considered when assessing an H & C application. Of course, not all factors will apply to every case.
- Establishment in Canada
- Ties to Canada
- The best interests of any children affected by your application
- Factors in your home country or country of residence
- Health considerations
- Family violence considerations
- Consequences of the separation of relatives
- Inability to leave Canada has led to establishment
- Any other relevant factor you wish to have considered&
If there is a child that will be directly affected by any decision on whether to grant an exemption under H&C grounds, then the best interests of the child will be taken into consideration. But it will only be one factor among all the factors taken into consideration in evaluating your case. When considering the best interests of the child, the following will be considered:
- Age of the child
- Child’s establishment in Canada (how strong are the connections the child has to Canada)
- Conditions in the country of origin that could impact the child if it is returned there
- Medical needs of the child
- Child’s education, or
- Child’s gender
Remember that you are responsible for making sure that you communicate all the circumstances you feel are relevant to your situation. This includes any information and supporting documents that deal with your child’s situation as listed above. As part of this, you should:
- Include any documents that demonstrate the hardship you and/or any direct family member (spouse, dependent children, grandchildren) would face if returned to your home country
- Any support you sought from authorities in your home country or whether you sought such support at all
- And if you haven’t sought support from local authorities in your home country, explain why not
- If the hardship you claim would occur throughout your home country or only in specific regions of your home country
You should explore all other possible means for obtaining permanent resident status in Canada before considering applying under H & C. For example:
- If your spouse or common-law partner is a Canadian citizen or permanent resident, you should consider having them sponsor you. A sponsorship application along with further information can be found here.
- If you are seeking protection due to:
- Persecution due to race, religion, nationality, political opinion, or membership in a particular group
- Danger of torture
- Risk to life or cruel and unusual punishment
Then you can apply as a refugee. Go here for more information.
Remember that if you are under a removal order, then an application for permanent residence based on H & C will NOT delay your removal from Canada. The application will be processed even though you are no longer in Canada, and you will be informed of the decision by mail or email.
The following persons cannot apply for using H & C grounds:
- Canadian citizens
- Permanent Residents of Canada
- Those who have submitted an H&C application for which a decision has not yet been made
- Those who have an outstanding refugee claim
- Those who have had their refugee claim rejected or have withdrawn their refugee claim during the last 12 months
- You may be exempted from this 12-month bar if:
- You can prove you have children under 18 years of age who would be adversely affected
- You can prove that if you are returned to your home country you would suffer risk to life due to lack of adequate medical and health care
- Those who became a designated foreign national in the past 5 years.
- A designated foreign national is defined by Section 20 of the IRPA which states:
- 20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she
- (a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or
- (b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal organization or terrorist group.
- Marginal note: Effect of designation
(2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the subject of the designation becomes a designated foreign national unless, on arrival, they hold the visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.
What this means is that if you are a designated foreign national, then unless you have the proper visa and accompanying documentation and satisfy an immigration official that you are admissible to Canada, you will be denied entry.
Someone who has been denied entry because they are a designated foreign national cannot apply under H & C for at least 5 years from the date of that designation.
Effective April 1, 2011, all existing H & C applications and applications for pre-removal risk assessments (PRRA) were transferred to Backlog Reduction Office (BRO) in Vancouver, and all new H & C applications and PRRA applications are required to be submitted to the BRO in Vancouver, which will review, triage, and distribute the files to either BRO in Niagara Falls or BRO in Montreal.
You should mail your applications to the following address in Vancouver:
IRCC – Humanitarian Migration Vancouver
#600 – 605 Robson Street
The approval and refusal of an H & C case is highly discretionary. This means each case is evaluated on its own merits rather than by a strict set of guidelines. Because of this, it is extremely important to prepare a strong application from the very beginning. Even after your application is submitted, an on-going effort needs to be made to continue to build a strong case in order to fight for the officer’s positive discretion.
Mary Zhang has years of experience with H&C applications. Contact Maxcan at our office in Markham, Ontario.