October, 2015.- Applicants who have no status in Canada, or are inadmissible to Canada for a number of reasons, may try to regularize their status through an application filed under s. 25 of the Immigration and Refugee
Protection Act (IRPA). This is the well-known humanitarian and compassionate grounds application. Though well known in the immigrant communities, it remains the subject of mis-information and a lack of understanding. As a consequence, many applicants are deceived into thinking their cases are strong, when they are not, and many others, who may have strong applications, are refused as they were improperly constructed.
Here are a few facts about the H & C application;
Under recent changes to IRPA, a person cannot apply for H & C consideration while their refugee claim is outstanding. If they lose their refugee claim, they must wait 12 months before they are permitted to file an H & C application.
There are two general exception to the 12 month bar. The first is where the best interests of a child are at issue. In such a circumstance, the parents of the affected child, and the child, may apply for H & C consideration within the 12 month period following a negative refugee claim decision. It will certainly be in the best interests of a child if the child’s parents are permitted to remain in Canada with the child. As such, this “loop-hole” in the law does permit a full assessment of H & C factors for all applicants, even if the application is filed within 12 months.
The best interests of a child will involve an assessment of many factors, including, the age of the child; • the level of dependency between the child and the H&C applicant or the child and their sponsor;• the degree of the child’s establishment in Canada;• the child’s links to the country in relation to which the H&C assessment is being considered;• the conditions of that country and the potential impact on the child;• medical issues or special needs the child may have;• the impact to the child’s education; and• matters related to the child’s gender.
The second exception is when it can be proven that an applicant would be subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or medical care. These cases require expert medical opinions concerning both the person’s condition and the circumstances in their home country.
Although once permitted to file an H & C application, an applicant may do so any time after arriving in Canada, applications filed within 2 or 3 years of arriving – or less - will undoubtedly, absent something truly exceptional, be refused. The very rough rule of thumb we use to decide whether or not to file an H & C, is 6 years. If the applicants are in Canada under 6 years, we will advise them that their chances of success, again barring something exceptional, are very low and perhaps no worth trying. This 6 year period is not written in the law, but through our immigration law practice of close to 25 years, this is the period of time we consider to be important.
The test used by immigration officers is whether or not an applicant will suffer undue hardship if they have to leave Canada. This has been interpreted to mean a hardship that is unusual, undeserved or disproportionate. Canada Immigration has set out guidelines to assist officers in assessing whether or not applicants have met this threshold. The guidelines instruct officers to consider a number of factors including, family in Canada, whether the applicant is married to a Canadian citizen or permanent resident, the best interests of children, the length of residency in Canada, whether the applicant has obeyed the law while in Canada, the circumstances in their home country, the ability to return to the home country and re-establish, their establishment in Canada and factors outside their control which led to a lengthy residency in Canada.
The factors used by immigration officers in considering establishment include whether the applicants have been on welfare; their employment history (Even if working without authorization. Working in Canada is important to a successful application); whether they have demonstrated sound financial management through savings, sending money home or buying property; whether they employ Canadians or permanent residents; their involvement in the community, such as church groups and volunteer organizations. Having worked in Canada and not resorted to welfare will not win a case on its own, but they are important factors.
Two final points for consideration. The first is that the mere filing of a humanitarian and compassionate grounds application will not stop a deportation from occurring. An Applicant must go to Federal Court to seek a stay of removal for that. The second point is that a successful application must include “evidence” of the important factors. If an applicant has worked, he must include a detailed letter from his employer. If the children have attended school, documents from the school such as report cards are essential. The Applicant should also submit a detailed affidavit or statutory declaration explaining each step of their life in Canada. Immigration officers should get a strong sense of how established and connected to Canada an applicant is. No application is guaranteed to be successful, as it is up to an individual immigration officer to decide. However, if applicants follow the above guidelines, they stand a better chance of winning.
If you have any questions, Ronald Poulton can be reached at 416-653-9900 ext 232 or email email@example.com
(Barrister & Solicitor)
Humanitarian and Compassionate Grounds. (H & C)
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