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Humanitarian and Compassionate/Public Policy Grounds

Written by Henry J. Chang

Background

On June 28, 2002, the Immigration and Refugee Protection Act ("IRPA") [S.C. 2001, c.27] became law. It replaced the previous Immigration Act, Chapter I-2 [Repealed, 2001, c. 27, s. 274]. This article discusses humanitarian and compassionate grounds ("H&C") and public policy grounds ("Public Policy") under the current IRPA.

The authority for an application under either H&C or Public Policy appears at S. 25(1) of the IRPA. The text of S. 25(1) is as follows:

The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent residence status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

In cases where none of the available categories apply to a foreign national, it is still possible to seek permanent residence status under this provision. In addition, S. 25(1) may be used to obtain an exemption from any applicable criteria or obligation, including the requirement to apply for permanent residence at a consulate abroad. Discretion under S. 25(1) may be exercised on the basis of either H&C or Public Policy. In both cases, immigration officers must consider the best interests of any child directly affected by the decision.

Although S. 25(1) suggests that H&C may overcome a ground of inadmissibility, Chapter OP4 of the Immigration Manual, the guidebook used by Canadian immigration officers, states that a positive H&C decision will not overcome a ground of inadmissibility. This is because the Minister's powers in this respect have not been delegated to Canadian immigration officers.

However, the above provision not applicable where Federal-provincial agreements are applicable. According to S. 25(2) of the IRPA, where the province of intended residence has entered into an agreement with the Federal government regarding the selection and sponsorship of foreign nationals under the IRPA and where, pursuant to this agreement the province has sole responsibility for the selection of such foreign nationals, the Minister may not grant permanent residence or an exemption to such a foreign national if he or she does not meet that province's specific selection criteria.

Chapter OP4 of the Immigration Manual states that the Minister may, from time to time, establish categories of persons whose applications for permanent residence may be considered for processing as "public policy" cases, provided they do not fit the definition or comply with the criteria for one of the existing immigration classes. However, OP4 also states that there are no categories identified under public policy at this time. Therefore, the remainder of this article will discuss H&C only.

Although clearly subject to a great deal of discretion, H&C is a valuable option for foreign nationals who would otherwise be denied landed immigrant status or forced to apply abroad.

Requests for Consideration Under H&C

Pursuant to S. 66 of the Immigration and Refugee Protection Regulations ("IRPR"), (SOR/2002-227), where the foreign national is already in Canada, an application under H&C must be made as an application in writing accompanied by an application to remain in Canada. Where the foreign national is outside Canada, the application in writing must be accompanied by an application for a permanent resident visa. The applicant bears the onus of establishing that H&C in the individual case is sufficient to warrant an exemption.

A determination must first be made that the foreign national does not fall within one of the existing categories for permanent residence. If the foreign national does not fall within one of the existing categories, the application is considered under H&C. If it is determined that the foreign national meets the requirements for H&C, the immigration officer will then determine whether the applicant is eligible for a permanent residence visa (if the applicant is outside Canada) or permanent residence status (if the applicant is in Canada). Despite receiving a positive H&C decision, the applicant may still be denied permanent residence status on other grounds (such as inadmissibility).

Accompanying Family Members

Accompanying family members of a foreign national who meets the requirements for H&C are entitled to a permanent resident visa/permanent resident status if, following an examination, it is established that:

  1. The accompanying family member is not inadmissible;
  2. and

  3. Where the province of intended residence is Quebec:

    1. the foreign national is not a member of the family class, and
    2. the foreign national has not been determined to be a refugee (if he or she is already in Canada)

    the competent authority of the Province of Quebec is of the opinion that the family member meets the province's specific selection criteria.

Overseas Processing of H&C Cases

When considering an H&C case filed by a foreign national from outside of Canada, the decision-maker first assesses the H&C grounds and determines whether the foreign national should be exempted from the selection criteria related to becoming a permanent resident from within Canada. If a positive decision is made, the immigration officer still has to determine whether the application qualifies for a permanent residence visa.

In order to obtain a permanent residence visa, the foreign national must meet the requirements contained in S. 67 of the IRPR. According to S. 67 of the IRPR, an applicant who is outside Canada who has been granted an exemption under H&C may receive a permanent residence visa if the following additional requirements are met:

  1. The foreign national is not otherwise inadmissible;
  2. The family members of the foreign national are not inadmissible (whether they are accompanying the foreign national to Canada or not);
  3. and

  4. Where the province of intended residence is Quebec, and the foreign national is not a member of the family class, the competent authority of the Province of Quebec is of the opinion that the foreign national meets the province's specific selection criteria.

The applicant must also still meet the other requirements of S. 72 of the IRPR (including possession of a passport, and a medical certificate based on a medical examination within the preceding twelve months).

Factors Considered in H&C Cases (Overseas Processing)

Chapter OP4 of the Immigration Manual addresses the issue of H&C cases adjudicated abroad. Although Chapter OP4 states that H&C applications must be considered on a case-by-case basis, it does provide guidelines on certain situations (it is not intended to be exhaustive) that may merit a positive decision. These situations are discussed below:

Family Class Situations

In some cases, sponsors will be on social assistance and therefore unable to sponsor a member of the family class [as a result of S. 113(a) of the IRPR]. This may be an appropriate case to request consideration under H&C. The immigration officer will consider factors that could include whether the prospective permanent resident would be able to help the sponsor get off social assistance.

De Facto Family Members

De facto family members are persons who do not fall within the family class. However, their situation of dependence to the sponsor nevertheless makes them de facto members of a nuclear family that is either in Canada or is applying to immigrate to Canada. Examples given include: a son, daughter, brother or sister left alone in the country of origin without family of their own; an elderly relative such as an aunt or uncle or an unrelated person who has resided with the family for a long time. An important consideration is to what extent the applicant would have difficulty in meeting financial or emotional needs without the support and assistance of the family unit.

Although not specifically mentioned in the Immigration Manual, fiancés, intending common-law partners, and intending conjugal partners (who are not included in the family class) should also be able to seek permanent residence under H&C.

Best Interests of the Child

As stated in S. 25(1) of the IRPA, the best interests of the child should be considered in H&C cases. Chapter OP4 of the Immigration Manual refers to the Supreme Court of Canada decision of Baker v. Canada [1999] 2 S.C.R. 817. With regard to the "best interests of the child", Baker v. Canada stated the following:

In addition, it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections.

In such situations, a positive decision may be appropriate.

Former Canadian Citizens

Situations may arise where former Canadian citizens request permanent residence on the basis of H&C. Chapter OP4 states that such cases must be considered on their individual merit. However, the following guidelines are provided to assist in making a determination:

  1. Make sure that the applicant was a Canadian citizen;
  2. Consider how and why the applicant lost their Canadian citizenship - verify if they would have lost it under the present Act;
  3. Access the hardship that the applicant would experience if the application were refused:
    1. Close family members in Canada;
    2. Strong cultural and/or emotional ties to Canada; and
    3. Close family, friends, and support in another country.

Inland Processing of H&C Cases

Foreign Nationals do not have the right to apply for permanent residence within Canada, except as provided in the IRPA. In most cases, foreign nationals who seek permanent residence must:

  1. Submit their application outside of Canada; and
  2. Qualify for, and obtain a permanent resident visa.

Foreign nationals who do not have a statutory right to apply for permanent residence within Canada must therefore obtain an exemption from these requirements on the basis of H&C. An application for consideration to remain in Canada on the basis of H&C consists of two steps:

  1. The H&C assessment; and
  2. Assessment of the application for permanent residence.

The decision-maker first assesses the H&C grounds and determines whether the foreign national should be exempted from the selection criteria related to becoming a permanent resident from within Canada. If the decision is made to permit the foreign national to apply within Canada, the immigration officer then has to determine whether the application for permanent residence should be granted. The foreign national must meet the requirements contained in S. 67 of the IRPR. According to S. 68 of the IRPR, an applicant who is in Canada who has been granted an exemption under H&C may become a permanent residence within Canada if the following additional requirements are met:
  1. The foreign national is not otherwise inadmissible;
  2. The family members of the foreign national are not inadmissible (whether they are accompanying the foreign national to Canada or not);
  3. and

  4. Where the province of intended residence is Quebec:

    1. the foreign national is not a member of the family class, and
    2. the foreign national has not been determined to be a refugee

    the competent authority of the Province of Quebec is of the opinion that the foreign national meets the province's specific selection criteria.

The applicant must also still meet the other requirements of S. 72 of the IRPR (including possession of a passport, and a medical certificate based on a medical examination within the preceding twelve months).

Factors Considered in Inland Processing H&C Cases

Chapter IP5 of the Immigration Manual addresses the issue of H&C cases adjudicated within Canada. Although Chapter IP5 states that H&C applications must be considered on a case-by-case basis, it does provide guidelines on certain situations (it is not intended to be exhaustive) that may merit a positive decision. These situations are discussed below:

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