Permanent Residence

Humanitarian and Compassionate Immigration law

Humanitarian and Compassionate Grounds Examples

Humanitarian and Compassionate Grounds Examples

illustration of a Humanitarian & Compassionate aspect of refugee claims

People in Canada (and sometimes people residing outside of Canada) who do not meet any of the criteria to receive a visa to Canada can apply for permanent residence in Canada. This option is offered based on humanitarian and compassionate (H&C) grounds. Certain categories may be suitable for filing under Humanitarian & Compassionate grounds. Examples include:

  • Persons who may have lived in Canada for a long period and have acquired a significant degree of establishment in Canada.
  • Persons who have been excluded from being a member of the family class due to the failure of their putative sponsor to declare their existence or have them examined (see s.117(9)(d) of the Immigration Refugee Protection Regulations).
  • Persons who may have a criminal problem that makes them unable to be admitted to Canada.
  • Persons who may have a medical issue making them unable to be admitted to Canada.
  • Persons who may practically speaking be part of a family without the legal status of family member (i.e., de facto family member).

During the assessment of an H&C application, immigration officers are supposed to assess the best interests of a child based on guidelines and policy. Other related factors include:

  • Economic establishment in Canada (or the likelihood that the person could establish themselves economically in Canada).
  • Potential for hardship in the country of origin, whether hardship may arise from separation of relatives or ties to Canada.
  • Any other circumstances presented by the lawyer on behalf of the candidate trying to get a visa to Canada.

Credible third-party documentation is necessary to support the factors mentioned above. This documentation may include professional assessments by medical professionals, observations about country conditions by academics and journalists, government documentation proving income, and recommendations from persons of relevance such as employers.

H&C arguments can also be presented to excuse a failure to fall within the relevant law or policy when applying for temporary visa applications such as work permits, study permits, and visitor visas.

About Humanitarian and Compassionate Applications

H&C applications are an avenue that foreign nationals can use to get permanent resident status in Canada when they do not qualify for other immigration classes. These applications are, in essence, asking for an exemption to the established law and rules of Immigration, Refugees and Citizenship Canada (IRCC).

As such, the process is a fairly complex and open-ended one that requires applicants to provide significant evidence for their claims. To succeed, H&C claims must call upon the extensive experience of experienced lawyers with in-depth knowledge of H&C immigration law.

Canada’s immigration rules state that foreign nationals applying for permanent residence in Canada must do so from outside the country. However, foreign nationals already living in Canada without a status can submit their application while in Canada for consideration on H&C grounds. Their situation will be considered as an individual case, taking into account a variety of factors.

Temporary residence requests cannot be submitted for consideration as H&C applications. Furthermore, risk factors such as risk of persecution, risk to life, or risk of cruel and unusual treatment or punishment are not grounds for an H&C application. Persons experiencing situations where such adverse effects and risks are present should consider applying for refugee status.

Chaudhary Law’s team of humanitarian immigration lawyers is well-versed in international human rights and refugee claims. We can help foreign nationals obtain refugee status in Canada.

When Does Humanitarian and Compassionate Law Apply?

People in Canada (and sometimes people residing outside of Canada) who do not meet any of the criteria to receive a visa to Canada can apply for permanent residence to Canada. This option is offered based on humanitarian and compassionate grounds. Examples of categories which may be suitable for this filing include:

  • Persons who may have lived in Canada for a long period and have acquired a significant degree of establishment in Canada.
  • Persons who have been excluded from being a member of the family class because their sponsor failed to declare their existence or have them examined.
  • Persons who may have a criminal problem that makes them unable to be admitted to Canada.
  • Persons who may have a medical issue making them unable to be admitted to Canada.
  • Persons who are, practically speaking, a member of a family, but do not have the legal status as such (de facto family member).

H&C arguments can also be presented to excuse a failure to fall within the relevant law or policy when applying for temporary visa applications such as work permits, study permits, and visitor visas.

Who is Eligible?

Foreign nationals living in Canada with no valid immigration status can submit a claim under humanitarian and compassionate grounds. Examples include people who have:

  • Overstayed their visa.
  • Been excluded from the family class because their sponsor didn’t declare their existence or have them examined.
  • Had a refugee claim denied over a year ago.

Some restrictions exist, however. The following categories of people cannot apply on H&C grounds:

  • Persons who have submitted a refugee claim. To apply for an H&C, applicants would have to withdraw their refugee claim before their IRCC hearing.
  • Persons who have received a negative decision from IRCC in the last 12 months. (A rejected refugee claim counts as a negative decision.) The one-year bar, however, does not apply to applicants with children younger than 18 who would be adversely affected should the applicant be removed from Canada. It also does not apply to people with proof of a medical condition that threatens their life and cannot be treated in their country of origin.
  • Persons who withdrew a refugee claim within the last 12 months.
  • Persons recognized as Designated Foreign Nationals or considered “irregular arrivals” into Canada. Such persons cannot apply for H&C grounds for a period of five years.

Exemptions based on H&C grounds are exceptional. The IRCC only grants them when the evidence presented is compelling enough that the reviewing officer believes undue harm would result if they refused the application.

Extending a Stay in Canada

Submitting an H&C application does not prevent an applicant from needing to maintain their legal status in Canada. Unlike with refugee claims, Immigration, Refugees and Citizenship Canada (IRCC) can issue a removal order for an applicant whose H&C application is pending. Therefore, applicants must ensure that their work permitsstudy permits, or visitor visas remain valid for the entire duration of their H&C claim’s processing.

To extend their stay in Canada, foreign nationals must:

  • Apply for an extension of permission before their current permit or visa expires.
  • Continue to meet the requirements for their current stay.
  • Abide by the conditions of their status (e.g., not working or studying without permission).
  • Meet the requirements for the category under which they are applying.

Online stay extension requests take, on average, about three months to be processed, with paper applications taking slightly longer to be completed.

If approved, applicants will receive a new status document that includes a new expiry date. If refused, applicants can only stay in Canada until the expiry date of their original temporary status.

Renewing an Expired Canadian Resident Status

To be eligible for a PR card renewal, an applicant must:

  • Be a permanent resident of Canada.
  • Be physically present in Canada.
  • Not be a Canadian citizen or a registered Indian under the Indian Act.
  • Not be under an effective removal order.
  • Not be convicted of an offence.

Before travelling outside of Canada, Canadian permanent residents should ensure that their permanent resident card (PR card) is valid for a minimum of six months. If the expiry date is less than six months away, permanent residents should submit an application to renew their PR card. PR card renewal applications can only be submitted while applicants are in Canada.

If your PR cards are lost or stolen, or if cards expire while you’re outside of Canada, you have to request a Permanent Resident Travel Document (PRTD) to come back to Canada using a commercial vehicle (plane, train, boat, bus, etc.). You can only return if you have your PRTD document in hand. Once back in the country, card renewal applications can be submitted.

For more detailed information on permanent resident cards, click here.

Humanitarian and Compassionate Application Process

To submit an H&C application, applicants must:

  • Fill out all of the required forms.
  • Provide required documentation Include a submission letter that details their situation and explains their H&C claims.
  • Pay the processing fee and submit their completed application package.

During the assessment of an H&C application, immigration officers review the evidence presented and determine whether a person’s unique situation should grant the person permanent residence in Canada on H&C grounds. To do so, several relevant factors will be taken into consideration, with a special focus on three main factors:

  • Potential for hardship in the country of origin
    • Whether hardship may result from the separation of relatives and of ties to Canada.
    • Whether an individual is likely to suffer unusual and undeserved hardship or unreasonable hardship should they return to their country of origin.
  • Degree of establishment in Canada
    • Whether an applicant was able to establish a successful life in Canada.
    • Factors considered include, among others, length of stay in Canada, work history, skills and training, education, proficiency in one of Canada’s official languages, assets and savings in Canada, etc.
  • Best interests of a child
    • Officers must consider the best interests of any child that could be affected by the applicant’s removal from Canada.
    • Factors considered include a child’s emotional, social, cultural and physical welfare.
    • An applicant’s children, grandchildren, or any other child with whom they have a close relationship must be considered at this step.

An immigration lawyer can also present any other unique circumstance on behalf of the candidate seeking a visa to Canada to increase an applicant’s chances of seeing an H&C claim approved.

Credible third-party documentation is also necessary to support the factors mentioned above. These factors may include professional medical reports, observations about country conditions by academics and journalists, government documents proving income, and recommendations from persons of relevance such as employers.

If an H&C application is approved, an applicant can apply for permanent residence in Canada for H&C reasons. If the application for permanent residence is also accepted, the applicant will be granted permanent resident status in Canada.

If an H&C application is refused, the applicant can appeal to the Federal Court of Canada, but the appeal must be filed within 15 days and is a complicated process that requires the expertise of a seasoned immigration lawyer.

On average, H&C claims can take from 24 to 36 months to be processed. Depending on the situation, the process can stretch out even more, especially if information is missing or documentation is incomplete.

Applicants must ensure that they maintain their legal status while in the country and should remain in Canada during the entirety of their claim’s processing, unless they have been issued a removal order. The application can still be processed if the applicant is outside the country. International travel is not recommended as applicants must remain available for interviews or to produce additional documentation requested by the officers assigned to their file.

How To Apply For Humanitarian And Compassionate Grounds? 

To apply for the Humanitarian & Compassionate Grounds, the applicant will have to fill out an application that will consist of numerous forms. If the applicant is already in Canada, they will have to fill out at least these two forms: 

  • A general application for Canadian immigration. (IMM 0008)
  • A form stating an applicant requesting an exemption to the country based on Humanitarian & Compassionate Grounds. (IMM 5283)

If the applicant is overseas: 

  • Fill out the forms for one of the three immigration classes (refugee program, family class or economic class) along with the reasons why you wish to apply for Humanitarian & Compassionate Grounds relief. 

How Long Does The Humanitarian & Compassionate Grounds Application Take? 

The application process for the Humanitarian & Compassionate Grounds program is complex and lengthy. On average, an application for H&C inside Canada can take approximately two to three years. You may be able to stay in the country while your application is being processed if further applications are made. 

What Qualifies As Humanitarian Reasons?

Here are some of the humanitarian reasons: 

  • Wanting  permanent resident status in Canada with firm economic establishment in Canada
  • The applicant has children who are under 18 that can be affected adversely if the applicant was removed from the country 
  • The applicant has proof that they are facing a life-threatening medical condition that cannot be treated in their own country
  • Fear from other persons in their own country. 

What Happens If Your Application Is Refused? 

Most of the application refusals are rendered inside the country. The applicant will then have 15 days to file for an Application of Leave and Judicial Review from The Federal Court Of Canada. If the review ends in the applicants’ favour, the application is sent back for redetermination at the visa office. 

For How Long Is A Humanitarian Visa Valid For? 

A humanitarian application that is successful leads to permanent resident status which has an obligation to reside in Canada for at least two years (with some exceptions).

Toronto’s Chaudhary Law Office Immigration Lawyers Can Help You

H&C applications require extensive knowledge and have important consequences on an applicant’s life and family. Chaudary Law’s seasoned humanitarian immigration lawyers can help you compile documentation, prepare arguments, and make legal submissions on your behalf. Start exploring your legal options today by booking a consultation with one of our lawyers.

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