The Canadian government created a discretionary program for people to apply for permanent resident status. Most methods set by the Immigration, Refugees and Citizenship Canada for immigrating to Canada require that the applicant meet rigid criteria. Now, the Humanitarian and Compassionate program provides an additional avenue to certain applicants wanting to immigrate. Applicants must be able to explain to the officer why their case should bypass the standard Immigration structure.
The purpose of the program is to alleviate the struggle and hardship faced by the applicant upon returning to their home country. The benefit of the Humanitarian and Compassionate program is that it permits an alternative pathway for applicants who would either 1) are not eligible for immigration programs or; 2) have been inadmissible due to their past conduct or record. Applicants can apply to immigrate under Humanitarian and Compassionate grounds even if they have a criminal record, do not meet minimum income requirements, or do not meet other immigration standards. Many families become reunited in Canada as a result of this relief program.
Accordingly, many Humanitarian and Compassionate applicants fall into the following categories. Click here for more information.
- Refugees who were denied claim;
- Survivors of human trafficking;
- Family members of refugees or permanent residents;
- Stateless persons
- Victims of domestic violence who left a family sponsorship because of the violence;
- Persons who have integrated in Canada socially, culturally, and with family; and
- Persons who have worked for some time as part of a temporary worker program.
Further, many of the Humanitarian and Compassionate cases examine the principal applicant’s situation and the effect the decision would have on their dependents. Occasionally, applicants pose novel public policy arguments; it is the choice of the immigration officer to accept, or deny, the proposal.
Principal Applicant
Canadian Courts rule that immigration officers should examine the applicant’s position, both subjectively and objectively. The key question: would the applicants story “excite in a reasonable [person] in a civilized community a desire to relieve their misfortune” (Kanthasamy)? In simple terms, the officer must decide if the applicant’s situation warrants assistance. Then, the officer compares the likely effects on the applicant if they return to / stay in their home country versus living in Canada. In other words, officers examine the resulting impact on the applicant’s human rights. Therefore, some persuasive factors include the impact on the applicant’s mental health, discrimination that the applicant would face, or restricted freedom they may encounter in their home country. Finally, the officer examines whether the applicant would suffer disproportionate hardship in relation to others in similar situations.
Ultimately, the reason(s) must be found to amount to an unreasonable impact on the applicant given their personal circumstances.
Best Interest of the Child
The best interest of the child is primarily weighed subjectively. Some factors include: age, degree of establishment in Canada, psychological concerns, dependency on applicant, and gender. These are all taken into consideration. Each factor is mutually persuasive. However, a factor like gender can weigh heavily in favor of the applicant. Gender is weighed heavily because, in many countries, women are disproportionately affected by violence, inequality and hardship. Ultimately, the subjective factors are weighed on a case-by-case basis. The immigration officer should be sensitive to the specific case and not make comparisons to others, especially when there is no evidence in contradiction to the applicants case. Consequently, Canadian Courts have recognized that children require different consideration than adults because of their vulnerability. Therefore, the officer making the decision must take special care to truly determine the best interest of the child.
Below is a partial list of issues the Minister considers. A complete list can be found at Canada.ca.
- The child’s emotional, social, cultural, and physical welfare;
- Child’s age and level of dependency on the applicant;
- 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;
- Conditions of that country and their potential impact on the child;
- The child’s medical issues or special needs’;
- The impact on the child’s education; and
- Matters related to the child’s gender.
Public Policy
Public policy reasons may be ambiguous and arbitrary. But, they help relieve applicants of extreme hardship that is beyond their control. When applicants make a public policy argument, the Immigration Act states that immigration officers “may” consider the request. However, they are not required to consider public policy reasons. The burden is quite high because once a public policy reason is set, it will exist forever. Nonetheless, the Minister has recognized certain situations as sufficient to meet the criteria.
For Example:
- A temporary public policy argument can be made for nationals of countries who were affected by the lifting of the temporary suspension of removals. Canada issues temporary suspension of removals because of the country’s current situation. Temporary suspension of removals do not allow Immigration officers to deport people to their home country for a specified period of time. Therefore, officers may consider applicants presence in Canada to be beyond their control. This can warrant positive consideration for the applicant.
- Resumption of Canadian citizenship. This policy was created for Canadian citizens who have lost their citizenship when they were minors because a parent lost their status.
In conclusion, the difficulty in Humanitarian and Compassionate cases stems from the subjective element. The burden is on the applicant to prove to an immigration officer that their case warrants relief. A successful application involves acquiring a lot of evidence and writing a persuasive summary. Fortunately, Fridman Law has a strong track record on such Immigration matters. We have built a reputation for being successful in many Humanitarian and Compassionate cases.
If you have any questions, please do not hesitate to contact our office at 204-944-8889 or email us at lawoffice@fridman.ca