What is a Humanitarian and Compassionate Application?

Immigration terminology is often arcane and complicated and no more so than when I was asked whether I was able to do an “agency” application for a client.  After some further questioning I realized that my client had misheard the term “H&C” which when spoken quickly sounds much like “agency”.  “H&C”, which stands for Humanitarian and Compassionate is a much talked about and often misunderstood immigration application.

Although these applications can be made from abroad they are most often initiated by those without status living in Canada.  Section 25 of the Immigration and Refugee Protection Act (IRPA) provides Foreign Nationals (people without status in Canada)  with the right to make an application to Immigration with the specific purpose of asking for permission to remain in Canada despite not meeting the requirements of the Act.

The applications are designed to provide Immigration with a tool to allow a person to remain in Canada permanently when the person is inadmissible or does not meet the requirements of the Act.  This is typically the case because the person’s visa has lapsed or the person may have entered the country illegally and now wishes to remain.  There are many other scenarios where a person may wish to apply to remain in Canada on Humanitarian and Compassionate grounds, but they all have in common the fact the person is usually without status and unable to gain status using any other provision of the Act.

The test

The basic test applied to Humanitarian and Compassionate applications is that the applicant must demonstrate undue and/or disproportionate hardship that would result if the applicant were forced to return to your their country.  Immigration must take into consideration the best interests of the applicant’s child when they apply the test.

Anyone can make a Humanitarian and Compassionate application, however the criteria that Immigration considers is limited and thus only a very limited number of applicants succeed each year.

Factors which may be considered

There is no limit to the number of factors which may be considered in assessing a Humanitarian and Compassionate application.  However some of the common considerations are as follows:

How long has the applicant lived in Canada?

• How well established is the applicant in his/her your community?
• How is the applicant connected toCanada?
• What are the applicant’s reasons for not leavingCanadaand how has that led to his/her establishment inCanada?
• How will the applicant’s children (or grandchildren) be affected in the event the applicant is required to leave?  Note: Immigration is required to consider the best interests of the applicant’s children when they make a determination of the application.  Factors related to the best interests of the applicant’s children might include the following:
• Age of child
• How long has the child lived in Canada?
• How would the conditions in the applicant’s home country affect his/her child?
• Does the applicant’s child have specific medical needs that could not be provided in his/her home country?
• Would the applicant’s child be able to gain a similar quality of education in his/her home country?
• Would the applicant’s child, due to gender discrimination face harm if returned to his/her home country?
• Is the applicant a victim of an abusive sponsor?  The circumstances that led to your separation and the withdrawal on your sponsorship application?

Application of Last Resort

Humanitarian and Compassionate applications are, by definition, made by those in very difficult circumstances.  That said, though no one knows the exact number, some believe there may be as many as 100,000  illegal immigrants living in Toronto alone.  Clearly Immigration understands that if all such people, who are often living in difficult circumstances, were to make Humanitarian and Compassionate applications, and were to be accepted it would amount to a general amnesty.  No such amnesty is contemplated and thus Immigration only accepts a small number of the Humanitarian and Compassionate applications which are received each year. In 2011 Immigration accepted only 2600 Humanitarian and Compassionate applications.  Some guesstimate the acceptance rate at a range of between 10 and 20 percent.

As a result of the low acceptance rate no one applying for a Humanitarian and Compassionate claim should believe (or accept someone else’s representations) that one’s chances of success are high.  There are certainly cases where the chances of success are higher than in other cases but all applications must be made with the understanding that they are difficult cases to win.  If a representative tells you otherwise you should get a second opinion.

 How can I improve my chances of success?

As noted above Immigration can take into consideration many different kinds of factors but generally they are trying to assess these basic factors.

□       Are you going to face undue harm upon return to your home country?

□       How well established or tied you are toCanada?

□       Will it be in the best interests of your child if you are returned to your home country?

The job of the applicant is to document each of these factors as well as possible to prove his/her case.  Be aware that after the application is made the applicant is entitled to supplement it with additional information.  Often claims take more than a year to determine so there may be substantive information to add to the application like the birth of a child or a change of job or growth of a business.

What if I am under a Removal Order

Humanitarian and Compassionate applications do not prevent deportation.  Applicants should be aware that there is nothing that technically prevents Immigration from removing a person before their Humanitarian and Compassionate application is heard.  The Federal Court has ruled that Humanitarian and Compassionate applications cannot be issued as a strategy to avoid deportation.  A general rule of thumb is that the earlier the Humanitarian and Compassionate application is made the better chance there is that the decision will be made prior to any removal.

Due to the fact that risk factors are not considered in the Humanitarian and Compassionate application, the Federal Court is more willing to allow a deportation even where there is a pending Humanitarian and Compassionate application.  It should be noted that if a person is removed before the Humanitarian and Compassionate application is decided, the application still must be determined by Immigration.  In the event the decision is positive the person will be provided with a permanent resident visa and allowed to return to Canada using that visa.

How much does it Cost?

Humanitarian and Compassionate applications cost $550 per adult and $150 per child included in the application.  Additionally there is a $490 Right of Permanent Resident Fee (RPRF) payable by the principal applicant and accompanying spouse, in the event the application is approved.

How long does it take?

 There is no easy answer to this question.  It is fair to assume no decision will be received within the first year.  Most cases are decided within 1-3 years.

Restrictions

Note: Under the new Bill 31 the government has proposed restricting access to Humanitarian and Compassionate applications by refusing any H&C application from failed refugee claimants within one year of their negative decision.  These provisions are scheduled to take effect by June 30, 2012.