Applying for permanent residency (PR) in Canada through Humanitarian and Compassionate (H&C) grounds is often seen as a last resort for individuals who do not meet standard immigration requirements. However, the process is notably complex due to the high legal thresholds, the discretionary nature of decision-making, and the intricate regulations involved. At Batra Law Offices, we specialize in guiding applicants through these challenging procedures.
Relevant Laws and Regulations Governing H&C Applications
Immigration and Refugee Protection Act (IRPA)
The Immigration and Refugee Protection Act (IRPA) is the fundamental law governing Canadian immigration. Under section 25(1) of the IRPA, the Minister of Immigration can grant permanent residency on H&C grounds when the applicant faces exceptional circumstances that prevent them from meeting standard immigration requirements. Section 25(1) states:
“The Minister must consider H&C applications if the person’s circumstances, including the best interests of a child directly affected, justify the granting of permanent residence despite non-compliance with normal requirements.”
The law grants broad discretionary power to immigration officers, which means that they can weigh a variety of factors—such as personal hardship, family ties, and integration into Canadian society—on a case-by-case basis. This discretion, while necessary, adds unpredictability to the process.
Immigration and Refugee Protection Regulations (IRPR)
The Immigration and Refugee Protection Regulations (IRPR) work alongside the IRPA to provide further details on the legal criteria for H&C applications. For example, section 174 of the IRPR outlines provisions for medical inadmissibility, which can become a critical factor in H&C cases involving severe health conditions. Applicants need to understand that these regulations are stringent and require detailed documentation to support claims, adding another layer of complexity.
Why Are H&C Applications So Complex?
- Discretionary Nature of Decisions
One of the primary reasons H&C applications are complex is the discretionary power vested in immigration officers. Each application is assessed individually, and officers must balance hardship, the best interests of any children involved, and other factors. This wide discretion often leads to varying outcomes for similar cases, making the process unpredictable.
Scenario: Imagine a single mother from an unstable country seeking PR under H&C grounds. She claims her return would place her and her child in danger due to violence in her home country. However, her application hinges on whether the immigration officer deems this hardship “exceptional.” While one officer may prioritize the best interests of her Canadian-born child, another might conclude that the general conditions in her home country, though challenging, do not meet the threshold of “undue hardship.”
Case Law Example: In Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2015 SCC 61, the Supreme Court of Canada ruled that immigration officers must take a broad and compassionate view when assessing hardship, moving away from rigid definitions of “unusual, undeserved, or disproportionate hardship.”
- High Legal Thresholds for Hardship
To succeed in an H&C application, applicants must demonstrate they face exceptional hardship if removed from Canada. This hardship needs to exceed the challenges typically experienced by others in similar circumstances and must significantly impact the applicant’s safety, health, or well-being.
Scenario: A refugee claimant from a country experiencing civil unrest may have her H&C application denied if the immigration officer believes that support systems, such as international humanitarian aid, would sufficiently mitigate the dangers she faces upon returning. Without robust evidence—such as expert reports on country conditions and medical assessments—her claim might be dismissed for lacking “unusual hardship.”
Case Law Example: In Morales v. Canada (Minister of Citizenship and Immigration), 2022 FC 241, the court upheld the rejection of an H&C application on the grounds that the applicant’s claimed hardships, while challenging, did not meet the legal threshold of “exceptional hardship.”
- Best Interests of Children (BIOC)
The best interests of children directly affected by an H&C decision is a central consideration under section 25(1) of the IRPA. However, the presence of children does not automatically guarantee success; immigration officers have discretion in interpreting what is in the best interest of a child.
Scenario: Consider a family where the parents are facing deportation, but they have a Canadian-born child. The parents argue that deportation would severely disrupt the child’s education and social environment. However, if the immigration officer believes that the child can reasonably adjust to life in the parents’ home country, the H&C application may still be rejected.
Case Law Example: In Hernandez v. Canada (Minister of Citizenship and Immigration), 2023 FC 64, the Federal Court ruled that the immigration officer failed to give sufficient weight to the best interests of the applicant’s Canadian-born children, leading to a reassessment of the application.
Key Factors in H&C Applications
- Establishment in Canada
The applicant’s establishment in Canada is a crucial element that immigration officers consider when assessing H&C applications. Strong ties to Canada—such as long-term employment, social connections, and involvement in the community—strengthen an applicant’s case.
Scenario: A woman who has lived in Canada for over ten years, built a successful career, and raised her children here may be able to argue that her removal would cause disproportionate hardship. Her social network and career achievements would play a pivotal role in establishing that she is well-integrated into Canadian society.
Case Law Example: In Dhillon v. Canada (Minister of Citizenship and Immigration), 2022 FC 715, the applicant’s long-term employment and strong community ties were crucial in securing a positive outcome for the H&C application.
- Hardship Upon Removal
Proving hardship upon removal is a vital part of an H&C application. Applicants must demonstrate that deportation would cause them disproportionate hardship, often relating to factors like medical conditions, safety concerns, or family separation.
Scenario: An individual suffering from a chronic medical condition that cannot be adequately treated in their home country would need to present comprehensive medical documentation and expert testimony to show that deportation would pose a life-threatening risk. Without solid evidence, immigration officers might conclude that the hardship does not rise to the required level.
Case Law Insight: In Ali v. Canada (Minister of Citizenship and Immigration), 2021 FC 1508, the court ruled that the applicant did not provide sufficient evidence of the claimed hardship, leading to the rejection of the H&C application.
- Criminal Inadmissibility
Applicants with a criminal record face even greater complexity when filing an H&C application, as criminal inadmissibility is a serious hurdle. Section 36 of the IRPA outlines the specific offenses that can render someone inadmissible, and applicants must demonstrate rehabilitation or compelling reasons for the Minister to overlook their criminal history.
Scenario: A man convicted of a minor offense 15 years ago applies for PR on H&C grounds. His criminal record raises concerns, but he provides evidence of rehabilitation, a long-standing career in Canada, and his role as a father to Canadian-born children. However, the decision will ultimately depend on how the immigration officer weighs his criminal past against his establishment in Canada and current conduct.
Common Grounds for H&C Refusals
- Insufficient Evidence for Hardship
A frequent reason for refusal is a lack of convincing evidence supporting the hardship claim. Applicants must provide detailed documentation, such as medical records, psychological evaluations, and expert reports on country conditions, to substantiate their case.
- Weak Ties to Canada
Applications are often rejected due to minimal establishment in Canada. If the applicant has not demonstrated consistent employment, education, or community involvement, the officer may conclude that removal would not cause disproportionate hardship.
- Inadequate Consideration of the Best Interests of Children
Even when children are involved, officers may reject H&C applications if they believe that the child’s well-being will not be significantly harmed by removal, especially if the home country provides a stable environment for the child.
Recent Federal Court Decisions Shaping H&C Applications
- Marwah v. Canada (Citizenship and Immigration), 2022 FC 187
This case stressed the importance of providing consistent, up-to-date evidence in H&C applications. Inconsistencies in the medical evidence led to the rejection of the application.
- Garcia v. Canada (Minister of Citizenship and Immigration), 2023 FC 98
In this case, the court found that the immigration officer failed to properly consider the applicant’s community involvement and ties to Canada, reinforcing the importance of evaluating an applicant’s full social and economic contributions.
How Batra Law Offices Can Help
At Batra Law Offices, we offer tailored legal assistance for those navigating the complexities of H&C applications. We ensure that every piece of evidence is well-documented and that legal arguments are carefully crafted. We know how to effectively present the unique aspects of your case to ensure the highest chance of success.
Contact Us for Expert Guidance on H&C Applications
If you’re considering filing an H&C application or have faced a recent refusal, Batra Law Offices can provide expert legal advice. Contact us at +1 647-408-8951 or email info@batralawoffices.ca for a consultation.
