Tips for H&C applications (Part 3: The Law)

The law surrounding humanitarian and compassionate applications is contained in one provision of the Immigration and Refugee Protection Act:

25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Packaged inside this provision is an ability for the Minister to grant an exemption, where circumstances justify, any other requirements under the IRPA. That means you can use this provision as a way out of the usual criteria for immigration. Generally, exemption is requested for the requirement to apply from outside of Canada through the regular streams of immigration. 

The circumstances that may justify exemptions are different for everyone, but there are some general guidelines that the decision maker will follow in evaluating each case.

When does humanitarian and compassionate consideration justify granting an exemption? The jurisprudence is clear that if the following the requirements of IRPA would lead to "unusual, undeserved or disproportionate hardship", then an exemption should be granted.

So the question becomes what is unusual, undeserved, or disproportionate hardship? For that we look at a number of factors, including but not limited to:

1. Establishment and ties in Canada 
How much is the person established in Canada? This means looking at topics like involvement in the surrounding communities, the closeness of family and friends in the country, any financial investments, and existence of significant relationships. The more established you are in Canada, the more hardship will result from having to leave the country and apply from home. 

Keep in mind that establishment in Canada is not by itself enough to show hardship - it must be combined with something more. 

Useful evidence here can be:

  • photographs, 
  • bank statements,
  • letters of support from friends and community organizations,
  • letters confirming volunteer activity, 
  • affidavit / statutory declaration from yourself and/or family and friends. 

2. Country Conditions
Some country conditions may cause severe hardship on an applicant's return. For example, if the country you came from speaks a different language than you speak, it would be difficult for you to access even the most basic of social support. Another example would be weather or natural events - if your country has an outbreak of a virulent virus, it may be deadly for you to return (and hence causing you hardship to apply outside of Canada). Most commonly, discrimination in the home country is claimed as a source of hardship.

Useful evidence here can be: 

  • Country condition reports (e.g. from the UN),

  • Newspaper clippings,

  • Letters from home.

3. Health Consideration
Current sufferers of certain conditions may find it difficult or impossible to obtain healthcare in their country of origin. This risk to health will count as hardship. Note that it is not only about your physical health, but also psychological health. For example, your depression may worsen if required to go back to your home country where you do not have any family to support you. This can constitute hardship.

Useful evidence here can include:

  • Notes from family and friends,
  • Medical reports,
  • Hospital records,
  • Counselling reports or sessions,
  • Statutory declaration/affidavit. 

4. Best Interest of a Child Directly Affected
The H&C decision maker will also see if a child will be negatively affected if you were obliged to leave the country and apply from outside Canada. Note that this child does not have to be related to you biologically; if the child will be affected by your departure from Canada, their interests must be considered in the application process. So if you are especially close to a child, make sure to outline how this child will be affected by your departure. 

Useful evidence here can include: 

  • Photographs,
  • School records,
  • Birth records,
  • Letters from children, 
  • Affidavit/statutory declaration. 

These factors are some of the criteria that the decision maker will look at when examining your case. Strength in one area can "make up" for weakness in another, so while you may not have significant ties to Canada, the country conditions and the best interest of a child directly affected may still lead to a granting of an exemption.

Once an exemption is granted, an applicant will be screened for any inadmissibilities and be put on the track for permanent residence.