Humanitarian and Compassionate considerations (H&C) serve as a specialized pathway for individuals seeking permanent residence in Canada who do not meet the requirements of standard immigration streams. While most people apply through programs like Express Entry, Spousal Sponsorship, or Provincial Nominee Programs, the H&C process exists for those who do not fit into those categories.
This application type is based on Section 25 of the Immigration and Refugee Protection Act (IRPA). It grants an immigration officer the authority to allow an individual to become a permanent resident even if they are not eligible under normal rules. This occurs when the officer believes there are sufficient humanitarian and compassionate grounds to justify an exception.
Who can apply for this exception?
This pathway is often used by individuals in difficult or unique situations. This includes people who are undocumented because they overstayed a visa many years ago, or failed refugee claimants who have remained in Canada for a significant amount of time. It is also used by those who have a medical inadmissibility that prevents them from using normal application channels.
When an individual submits an H&C application, they are asking the Minister to use their discretion to allow them to stay. It is important to understand that this is considered a privilege rather than a legal right.
How officers assess establishment in Canada
The first major factor an officer reviews is how settled an individual has become in the country. This is known as establishment. The officer looks for evidence that removing the person would destroy the life and connections they have built.
Several elements contribute to establishment. The officer reviews history of employment, even if that work was unauthorized, to see if the applicant is a hard worker. They also consider community ties, such as volunteering or involvement in a community center or church. Financial stability, paying taxes, having savings, and proficiency in English or French are also evaluated.
The best interests of a child
A powerful factor in these applications is the Best Interests of the Child (BIOC). If an applicant has children or grandchildren who would be affected by their removal, the officer is legally required to be alert and alive to that child’s potential suffering.
The officer considers whether the children are Canadian citizens and if they are enrolled in school. They evaluate whether a child would be separated from a parent or forced to move to a country where they do not speak the language or where the education system is poor. If the removal of the parent would hurt the child, it creates a strong argument for the application.
Understanding the hardship factor
The final pillar of the assessment is the level of hardship an applicant would face if they returned to their home country. It is not enough to argue that Canada has a better economy. The applicant must prove that the hardship would be unusual and undeserved or disproportionate.
Unusual and undeserved hardship refers to situations the applicant did not cause, such as war, discrimination, or a lack of necessary medical care. Disproportionate hardship occurs when the penalty of leaving is too severe relative to the immigration violation committed. The applicant must clearly demonstrate why being sent back would be a cruel outcome.
Important risks and timelines
There are significant risks associated with Humanitarian and Compassionate considerations (H&C) applications. Filing the application does not provide a stay of removal, meaning it does not stop a deportation order. An individual could still be removed by the Canada Border Services Agency (CBSA) while the application is processing.
These applications also have long processing times, often taking two or three years for a decision. Because the process is discretionary, refusal rates are higher than in other categories. Success depends on a strong legal submission rather than just completing forms.
For those who have exhausted other options, have lived in Canada for a long time, and have strong family or community ties, H&C can be a valid pathway to permanent residence. If you are in this situation, you may want to explore whether an H&C application is the right last resort for your circumstances.
