Section 25 of the Immigration and Refugee Protection Act (IRPA) is Humanitarian and Compassionate (H&C) Applications, a very important provision in the Act. Who can apply under section 25 has changed dramatically in the past few years. The legal test sets out specifically that applicants must clearly demonstrate that they would experience unusual and undeserved or disproportionate hardship if they were required to leave Canada.
The application will be assessed on the information the applicant provides and a decision will be made based on the applicant’s personal circumstances and whether these particular circumstances merit H&C consideration. Applications to become a permanent resident on H&C grounds are approved only in exceptional circumstances. It can take many years to process an application.
There is no guarantee that your application will be approved. If refused, filing an appeal and upon appeal’s rejection, asking the Federal Court of Canada to review the decision is advisable. Many in-land H&C applications are based on a significant degree on economic and cultural establishment as set out in chapter IP 5:
Does the applicant have a history of stable employment? Is there a pattern of sound financial management? Has the applicant integrated into the community through community organizations, volunteer or other activities; What hardship would occur if the application for a visa exemption were refused – The level of interdependency; Support available in the home country; Whether the applicant is able to work; and Is there a significant degree of establishment?
The IRPA also cites a statutory obligation to take into consideration the best interests of the child when examining and deciding the circumstances of a foreign national making a request under section 25(1) of the IRPA. This is one of the strongest factors that can be argued under H&C applications. There is no question H&C applications can be one of the most challenging applications for a consultant to prepare for a client but it can also be one of the most rewarding!
Who is eligible for an H&C application?
A person can make an H&C application if s/he:
- Is a foreign national currently living in Canada;
- Needs an exemption from one or more requirements of the Immigration and Refugee Protection Act (IRPA) or Regulations in order to apply for permanent resident status within Canada;
- Believes humanitarian and compassionate consideration justifies granting the exemption(s) you need; and
- Is not eligible to apply for permanent resident status from within Canada in any of these classes:
- Spouse or Common-Law Partner
- Live-in Caregiver
- Protected Person and Convention Refugees; and
- Temporary Resident Permit Holder
Who is ineligible for an H&C application?
A person cannot make an H&C application if s/he:
- Is a Canadian citizen;
- Is a permanent resident;
- Has submitted an H&C application for which a decision has not been made;
- Has an outstanding refugee claim;
- 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;
- Withdrew a refugee claim within the last 12 months, unless the claim was withdrawn before our hearing at the IRB;
- Note: This is known as the “12-month bar” There are exceptions to the 12-month bar. 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 removed from Canada (they do not need to be your children); or
- You provide sufficient credible and objective evidence that you, or a failed refugee claimant included in your application, if returned to 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.”
- Is inadmissible on the ground of:
- Health grounds,
- Financial reasons,
- Became a designated foreign national within the last 5 years or is a designated foreign national and has received a decision within the last 5 years for any of the following:
- A refugee claim at the Refugee Protection Division, Immigration and Refugee Board (IRB)
- An appeal to his/her rejected refugee claim (at the IRB’s Refugee Appeal Division), or
- An application for a Pre-removal Risk Assessment
- Note: The Minister of Public safety advises individuals when they become a designated foreign national.
Factors that may be considered
Examples of the factors that may be considered include, but are not limited to:
- establishment in Canada
- an inability to leave Canada that has led to establishment
- ties to Canada
- best interests of any children affected by your application (see following section for more information)
- health considerations
- family violence considerations
- consequences of your separation from relative
- factors in your country of origin (not related to seeking protection)
- any other relevant factors you wish to have considered that are not related to seeking protection.
Best interests of the child
The best interests of any children directly affected by the decision made on your application will be taken into consideration in the assessment of your application.
Factors related to the best interests of the child may include but are not limited to the:
- age of the child,
- child’s establishment in Canada,
- conditions in the country of origin that could impact the child,
- medical needs of the child,
- child’s education, or
- child’s gender.
The best interests of a child do not outweigh all other factors in a case. The best interests of the child are only one of many important factors that will be considered by the decision maker.