Humanitarian and Compassionate Applications

Eligibility Criteria for Humanitarian and Compassionate Applications

Individuals who are not eligible for Canadian permanent resident status under regular immigration categories may apply for residency on Humanitarian and Compassionate (H&C) grounds. Those applying must demonstrate that they would experience unusual, undeserved, or disproportionate hardship if they were required to return to their home country. It is important to note that H&C applications are assessed on a case-by-case basis, and approval is not guaranteed. Consideration for H&C grounds is available to those already inside Canada; it generally cannot be used as a means for people outside of Canada to gain entry.

Several factors are evaluated when determining eligibility for H&C consideration. Applicants must include details about their establishment in Canada such as community involvement, employment, and social ties. Moreover, the best interests of any affected children are given considerable weight. The child’s age, dependency, and level of establishment in Canada are relevant to the decision.

There are specific circumstances that may not be considered for H&C grounds. For instance, applications will not be assessed solely on risk assessments such as danger of persecution, risk to life, or risk of cruel and unusual treatment or punishment. These factors are typically assessed in a refugee protection claim. Additionally, inability to qualify for residency within another immigration stream is not in itself a decisive factor for H&C eligibility.

People who have a pending refugee claim or have already been refused refugee status are also restricted from applying. A one-year ban is placed on failed refugee claimants from applying on H&C grounds, commencing from the date of the final negative decision from the Immigration and Refugee Board or Federal Court.

Exceptions to this one-year bar exist, particularly relating to the best interests of a child directly affected or in cases with evidence of life-threatening medical issues that cannot be treated in the applicant’s home country. Each exception case is scrutinized carefully to ensure that the situation is not one that should more appropriately be addressed through a pre-removal risk assessment.

It is crucial for applicants to understand that H&C applications are a last-resort option. They are expected to provide substantial documentation and evidence to support claims of hardship. The discretionary nature of these applications means that providing as much detail as possible will aid in painting a clear picture of the applicant’s individual case, thereby increasing the chances of success.

Required Documentation and Supporting Evidence

When submitting a Humanitarian and Compassionate (H&C) application, it is essential to include comprehensive documentation and supporting evidence to substantiate the claims of undue hardship. A well-documented application significantly enhances the likelihood of a positive response from immigration authorities. The following are critical components that should be addressed in an H&C application:

  • Personal Identification and Status Documents: Include copies of passports, birth certificates, immigration documents, and any other official identification to establish your identity and current status in Canada.

  • Evidence of Establishment in Canada: Provide proof of your ties to the community, such as employment records, tax returns, educational certificates, volunteer commitments, and any recognition you have received. This demonstrates integration into Canadian society.

  • Social Ties and Family Relationships: Document your relationships within Canada, with special attention given to the impact of separation on your family members who are Canadian citizens or permanent residents.

Furthermore, evidence of the hardships you face should you be required to leave Canada is crucial. Types of supporting evidence might include:

  • Country Condition Reports: Objective information about the general conditions in your home country, especially if it demonstrates that return would result in exceptional hardship.

  • Medical Documentation: If applicable, provide detailed medical reports indicating conditions that cannot be treated effectively in your home country, and how such conditions impact your everyday life.

  • Briefs From Experts: These might include assessments from social workers, psychologists, or other professionals who can speak to the negative implications of your return to your home country.

  • Letters of Support: Testimonials from friends, employers, or community leaders that attest to your character, contributions, and the adversity you may face if deported can be persuasive pieces of evidence.

All submitted documents should be clear, legible, and translated into English or French where necessary. Affidavits can also be included to explain or substantiate certain aspects of your situation that may not be covered by official documents. For children involved in the application, include school records, letters from teachers, or any documents that demonstrate their integration into Canadian life.

Remember that compiling a thorough application can be time-consuming and requires meticulous attention to detail. Applicants should start collecting and organizing the necessary documentation well in advance of submitting their H&C application. The quality and completeness of your supporting evidence are often as crucial as the narrative of hardship itself. Therefore, strategic and comprehensive documentation is paramount to convey the full scope of your circumstances and bolster your H&C application.

Processing Times and Decision Appeals

The processing times for Humanitarian and Compassionate applications can be quite lengthy, often due to the complexity and individualized nature of these claims. The Canadian immigration authorities carefully scrutinize each application to ensure it meets the strict criteria for H&C considerations. Since there is no standard processing time, applicants are encouraged to monitor the Immigration, Refugees and Citizenship Canada (IRCC) website for the most recent processing times, which can give a general indication.

It is also important to acknowledge that a submitted H&C application does not guarantee a stay of removal from Canada. If you are facing a removal order, it does not get automatically stayed pending the decision on the H&C application. As such, applicants should be prepared for all possible outcomes.

Should an H&C application be refused, there is a limited scope for review or appeal. The Federal Court of Canada exercises judicial review over these decisions, and applicants may apply for Leave and Judicial Review of the decision. However, unlike the Immigration Appeal Division decisions, there is no automatic right of appeal, and not all decisions can be challenged at the Federal Court.

To apply for Leave and Judicial Review, applicants must adhere to strict timelines. Generally, an application for Leave must be filed within 15 or 60 days of receiving the decision, depending on whether the decision was made inside or outside of Canada. It is crucial to consult legal counsel early to ensure preservation of your rights and adherence to these time limits.

If Leave is granted, the Federal Court will then conduct the Judicial Review. The court’s role is not to reassess the merits of the original H&C application but to determine if there were any legal errors in the decision-making process. Should the court find such errors, it may return the case to the IRCC for re-evaluation. However, the court may also dismiss the application, thereby upholding the original decision.

It is essential that applicants keep abreast of two critical aspects of the H&C process after filing their application: the anticipated processing times and the options for recourse in the event of a refusal. Knowing the potential duration and possible outcomes enables better personal and legal preparation. Furthermore, understanding the avenue and limitations of appeals is critical if the decision does not come out in the applicant’s favor.