Humanitarian and compassionate (H&C) applications (outside Canada)
An H&C request is based on section 25 of the Immigration and Refugee Protection Act (“IRPA”), which states:
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.
Typically, the H&C request is made by individuals inside Canada, who have no other way to remain, face hardships on return to their home country, or who face inadmissibility issues. However, the H&C provision can also be accessed by those outside Canada.
While the Minister ‘must’ (mandatory) consider requests made in Canada, the Minister ‘may’ (optional) consider such requests by individuals outside Canada.
There are two primary ways we make H&C requests on overseas applications:
to overcome an admissibility issue on an existing application (eg. criminality or medical), or
relying on H&Cs to overcome eligibility (eg. sponsoring a person who cannot otherwise be sponsored)
This post will focus on the 2nd use of H&Cs on overseas applications. We often file H&C requests in situations where a family member was not declared (and not examined) as part of the sponsor’s own permanent residence application. In such cases, the sponsor is (often) permanently barred from sponsoring those undeclared family members. The only way to overcome such a sponsorship bar is to request that an exemption be considered on H&C grounds. The H&C factors may relate to the reason for the non-disclosure in the first place but also deal with the hardships resulting from the family members not being able to be together.
We have also used H&Cs in a sponsorship where an aunt was sponsoring an adult niece. Such a person is not part of the sponsor’s family class, but very compelling reasons (mainly related to the best interests of the children) existed. The aunt & niece also had a very close relationship, akin to a mother-daughter relationship, and the dependency continued.
One recent scenario we have turned our mind to is the situation in Afghanistan. We are receiving MANY inquiries from those in Afghanistan who face risks from the Taliban since the recent departure of US and Canadian troops. Unfortunately, the Canadian government has not introduced any programs to help Afghans generally who are still inside the country. It is not possible to make a refugee claim from inside one’s own country. Refugee resettlement from a third country requires that the person has already been granted refugee status, and most often requires a sponsor from Canada. This can also take many years.
For Afghans with family or friends in Canada who are willing to ‘sponsor’ them, it may be worthwhile exploring the option of filing a sponsorship application with an H&C request to overcome the fact that the persons abroad are not members of the sponsor’s family class. Such an application would rely heavily on the situation in Afghanistan, and the hardships that the applicants would be subject to. Such an application remains very discretionary, which means that an officer must ultimately decide whether it is compelling enough. Only if the H&C exemption is granted will the applicant(s) be granted permanent residence.
H&C requests are often used when there is no other option. That is exactly the situation of desperation for many in Afghanistan who cannot flee their country to try to make a claim for asylum elsewhere. An H&C may be worth pursuing in such a situation.
Please contact us if you would like to consult about H&C application further. We are happy to help!