Assessing Eligibility for Humanitarian and Compassionate Considerations
When assessing eligibility for Humanitarian and Compassionate (H&C) considerations under Canadian immigration law, it is essential to have a comprehensive understanding of the criteria used by immigration officers. Applicants must demonstrate that they would experience “unusual, undeserved, or disproportionate hardship” if they were not granted the relief they seek.
Factors that are taken into account during the assessment process include, but are not limited to:
- Establishment in Canada: The degree to which the individual has established themselves in Canada including community involvement, employment, and social ties.
- Family ties in Canada: The presence of family members who are Canadian citizens or permanent residents and the impact that the applicant’s departure from Canada would have on them.
- Best interests of any children affected: A particularly significant factor; the H&C assessment gives primary consideration to the best interests of any affected children.
- Consequences of the separation: The potential effects on both the applicant and their family should they be separated due to the applicant being removed from Canada.
- Health considerations: Including both physical and mental health issues which might be adversely affected by a return to the individual’s home country, particularly if treatments are not readily available there.
- Country of origin conditions: Conditions in the applicant’s home country, such as war, disaster, or lack of medical facilities, that could pose hardship.
It is important for applicants to provide as much evidence as possible to support their H&C consideration request. This might include personal statements, letters of support from community members, medical reports, and documentation of country conditions. Additionally, while applicants do not need to prove they would face a risk to their life or risk of persecution, such factors may nonetheless strengthen their case.
Each H&C application is evaluated by immigration authorities on a case-by-case basis. Decisions are made at the discretion of the officer based on the evidence provided, meaning that no particular outcome is guaranteed. Therefore, understanding and meeting the necessary criteria is crucial for applicants to bolster their chances of a favorable consideration.
Applicants should also be aware that not everyone is eligible to apply for H&C grounds. For example, individuals with failed refugee claims must wait 12 months before they can apply, unless there are child welfare concerns or health issues that pose a risk of permanent or prolonged impairment if they returned to their home country.
Lastly, decisions on H&C applications are not typically subject to appeal. If an applicant believes that the decision was not made in accordance with the law, they may have the option to seek a judicial review of the decision, which requires legal arguments to be presented to the Federal Court challenging the reasoning or fairness of the decision-making process.
Procedures and Evidence in Judicial Review Applications
When a decision is made on a Humanitarian and Compassionate (H&C) application and the applicant believes that it was not lawful or fair, they may opt to seek judicial review at the Federal Court. The judicial review process is a crucial part of Canada’s immigration system as it is the means by which decisions of immigration officers can be challenged and potentially overturned. Judicial reviews do not re-assess the facts of the case but rather focus on whether the decision was made in a legally correct manner.
The procedures for a judicial review start with the filing of an application for leave, which is essentially a request for the court to consider a full review of the case. In this initial stage, the applicant has to persuade the court that there are substantial grounds for the review. Hence, it is critical that the evidence presented is compelling enough to convince the court to grant leave.
Evidence plays a central role in judicial review applications. An applicant must compile a detailed record consisting of:
- the original H&C decision,
- any related correspondence with Immigration, Refugees and Citizenship Canada (IRCC),
- documents that the applicant submitted with their H&C application, and
- a written legal argument, known as a memorandum of fact and law, which outlines the alleged errors in the decision-making process.
The memorandum of fact and law is particularly important. It must clearly argue how the decision-maker may have failed to consider certain evidence, erred in law, or breached the principles of procedural fairness. The arguments must be supported by relevant statutes, regulations, and case law to demonstrate the decision’s shortcomings. Importantly, applicants should address any omissions or misinterpretations of their personal circumstances that could have led to the refusal of their H&C application.
Applicants are strongly advised to engage the services of a lawyer experienced in Canadian immigration law to navigate this complex and time-sensitive process. The deadline for filing for judicial review is usually within 15 days after receiving the decision if the applicant is in Canada, and 60 days if they are outside of Canada. Preparing a thorough application within these strict timeframes can pose a significant challenge.
Once the application for leave is submitted, the Federal Court reviews it to decide if the matter warrants a full hearing. Should leave be granted, the court will hear arguments from both the applicant’s lawyer and the government’s lawyer. Following the hearing, the court may render a decision to uphold the original H&C decision, return the case to IRCC for re-assessment by a different officer, or, in rare circumstances, directly order that H&C relief be granted.
Throughout this process, it is fundamental for the applicant to continuously update and maintain their evidence to reflect any new circumstances that might strengthen their position. For example, new developments in the applicant’s personal life or changes in their country of origin that impact their situation should be reported to the court promptly. Overall, the quality and consistency of the evidence and the precision of the legal arguments presented are paramount in increasing the chances of a successful judicial review.
Challenges and Remedies in Humanitarian and Compassionate Cases
The journey through humanitarian and compassionate cases within the framework of Canadian immigration law is fraught with challenges that applicants may face. These challenges often revolve around the stringent and highly subjective nature of the H&C decision-making process, as well as the possible repercussions of a negative decision.
One prevalent challenge is the high burden of proof placed on applicants to demonstrate excessive hardship. As immigration officers exercise significant discretion when assessing these claims, their interpretations of what constitutes sufficient hardship can vary widely.
Individuals grappling with a negative decision must then confront the reality that there is no direct appeal route for H&C applications, unlike other immigration avenues. This lack of a seamless appeals process can present a formidable obstacle for those seeking relief on compassionate grounds.
When faced with a refusal, the remedy most commonly pursued is the judicial review process, which is a complex and nuanced avenue of redress that typically requires the guidance of an experienced immigration lawyer. The remedy sought through the judicial review is not a reopening of the case or a new decision on the merits, but rather an examination of the legality and reasonableness of the original decision.
The potential relief granted by the Federal Court can serve to rectify an unfair process or oversight in the following ways:
- Setting aside an unreasonable or legally incorrect H&C decision and ordering a re-evaluation by a different officer
- Directing the immigration authorities to consider specific evidence that was overlooked or improperly assessed
- In very rare and compelling situations, the court may substitute its own decision for that of the immigration authorities
Furthermore, while awaiting the outcome of a judicial review, applicants can sometimes face removal from Canada. In such circumstances, they can apply for a stay of removal, which, if granted, allows the individual to remain in Canada until the court issues its decision. However, obtaining a stay is contingent upon meeting certain legal criteria and is not guaranteed.
The effectiveness of the remedies hinges on the quality of the applicant’s legal representation and the strength of the legal arguments made. Among the myriad nuances of legal strategies, counsel may challenge the immigration decision on grounds such as a breach of procedural fairness or unreasonableness in failing to appreciate the evidence presented.
Maintaining up-to-date documentation and evidence is critical, as any change in circumstances could potentially impact the outcome of the judicial review. Applicants and their legal advisors must be vigilant and proactive, ensuring that all relevant information is communicated to the court in a timely manner.
While the challenges are considerable, the available remedies via judicial review serve a vital role in ensuring that justice and equity are upheld within the Canadian immigration system. Success in these cases not only exemplifies the legal prowess involved but also embodies the humanitarian spirit that Canada aspires to in its approach to immigration.