Applications Made on Humanitarian and Compassionate Grounds

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 393-435

393

CHA PTER 12

APPLICATIONS M ADE

ON HUMANITARIAN

AND COMPASSIONATE

GROUNDS

A. THE HUMANITAR IA N AND

COMPASSIONATE (H&C) GROUNDS

ASSESSM ENT

The humanitarian and compassionate (H&C) grounds assessment is

a discretionar y device that introduces f‌lexibility into immigration de-

cision-making. It allows for the grant of “per manent resident status

or a permanent resident visa to certain foreign national s who would

otherwise not qua lify in any class.”1 The assessment enh ances the at-

tainment of the objectives of the Immigration and Refugee Protection Act

(IR PA)2 by allowing an immigration off‌icer to weigh the reasons for

admission instead of merely applying the rules found in the I RPA and

the Regul ations.3

While the IRPA provides various opportunities for H&C grounds

to be considered by various decision ma kers, th is chapter will focus on

1 Citizensh ip and Immigration Can ada, “Humanitaria n and Compassionate Con-

sideration,” online: CIC www.cic.gc.ca/english/resources/tools/perm /hc/index.

asp [Manual: “H&C Consi deration”].

2 Immigration and Ref ugee Protection Act, SC 2001, c 27 [IRPA].

3 Citizensh ip and Immigration Canad a, “Humanitaria n and Compassionate:

Assess ment of Applicants’ Submissions ,” online: CIC w ww.cic.gc.ca/english/

resources/tools/perm/ hc/tools/evaluation.asp [Manual: “H&C Assessment”].

IMM IGRAT ION LAW394

the assessment found at section 25 and section 25.1 of the IRPA.4 Sec-

tions 25(1) and 25.1(1) of the IR PA outline the situations in which an

H&C assessment is appropriate.5 They deal with three distinct ca ses:

(1) applications made in C anada; (2) applications made outside Canada;

and (3) cases where the minister acting on her own in itiative may con-

sider the particula r circumstances of a pers on. Where the application

is made in Canada, the minister must consider the request and may

grant it where she is of the opinion that she is justif‌ied i n doing so by

H&C considerations, taking into account the be st interests of any child

directly affected.6 For applications made outside Can ada, the minister

may consider the request and may grant it for the same reason.

A person may not have more than one H&C application pending

simulta neously.7

The discretionary n ature of the H&C assessment is the ver y rea-

son that it is seen to be an “exceptional mea sure” or a “special grant

of an exemption from a requirement” of the IR PA, not as an “alterna-

tive means of applying for perma nent residence status in Canada.”8

Whereas formerly, the H&C application was regarded as a process to

obtain an exemption from the norma l expectation that persons apply

for permanent residence from outside Canada, it is now regarded as

simply an exceptional mode of obtaining permanent resident status.9

4 See for example, I RPA, above note 2, s 65 (the Im migration Appeal Div ision), s 67

(the Immigration Appe al Division), s 68 (the Immigration Appea l Division), and

s 69 (the Minister).

5 IRPA , above note 2, ss 25(1) and 25.1.

6 Ibid, s 25(1).

7 Ibid, s 2 5(1.2)(a).

8 Manual: “H&C Assessment ,” above note 3; see a lso Singh v Canada (Minister

of Citizenship and Immigration), 2009 FC 11 at para 14 [Singh]; Doumbouya v

Canada (Minister of Citizen ship and Immigration), 2007 FC 1186 [Doumbouya];

and Quiroa v Canada (Ministe r of Citizenship and Immigration), 2007 FC 495.

9 IRPA , above note 2, ss 6 and 11(1); see al so Doumbouya, above note 8 at para 8;

Akinbowale v Canada (Mini ster of Citizenship and Immigration), 2007 FC 1221

at paras 14 and 24; Djerroud v Can ada (Minister of Citizenship and Immigration),

2007 FC 981 at para 32.

Applications Mad e on Humanitarian and C ompassionate Grounds 395

B. EL IGIBILITY

1) Foreign Nationals Who Do Not Meet the I RPA

Requirements

Foreign nationals who do not meet the requirements of the I RPA or its

regulations may ma ke an H&C application.10 For example, as outlined

in earlier chapters, there are only limited avenues for a foreign national

to apply for permanent resident status from within Canada.11 In most

circumstance s, the legi slation envisages that foreign nationals wi ll f‌irst

apply for a permanent resident visa while outside Canada. The H&C

assessment is one avenue by which a person may s eek to be exempt

from the normal requirement that one apply for permanent resident

status from outside Canada.

2) Inadmissible Persons

In addition, persons who are inad missible may make a request for H&C

consideration in order to overcome their inadmis sibility. Section 25(1)

of the IR PA specif‌ically excludes persons who are inadmissible under

sections 34, 35, and 37.12 Section 34 f‌inds persons inad missible on se-

curity grounds and includes acts of espionage and terrorism.13 Sect ion

35 deals with inadm issibility on grounds of violating human or inter-

national rights a nd includes war c rimes and crimes against huma nity.14

Section 37 posits a person can be found inadmissible on grounds of

organized crim inality.15

3) Refugee Claimants and the Twelve-Month Bar

Refugee claimants16 face particul ar restrictions. Before 28 June 2012,

refugee claimants were able to make concurrent applications for refu-

gee protection and for permanent residence on H&C grounds.17 Tod ay,

10 IR PA, above note 2, s 25(1).

11 Se e Chapters 5 and 6.

12 IR PA, above note 2, s 25(1). See Chapter 12.

13 Ibid, s 34.

14 Ibid, s 35.

15 Ibid, s 36.

16 Ibid, s 25(1.02). See Chapters 9 & 10.

17 Citizensh ip and Immigration Can ada, “Operational Bullet in 440-B” (15 August

2013), onli ne: CIC www.cic.gc.ca/english/re sources/manual s/bulletins/ 2013/

ob440B.asp.