Business Phone
H and C application
Foreign nationals who are inadmissible or who do not meet the requirements of the Act or Regulations may make a written request for consideration under subsection A25(1). There are some restrictions with respect to examination of applications for H&C consideration. The restrictions are explained in the following charts.
There are a number of restrictions on examination of H&C applications including:
- Certain persons who have an outstanding H&C request
When the H and C application is received on or after 29 June 2010 and the applicant has a pending H and C Application this could include an H and C request made in the context of another type of PR Application.
Then the H and C Application.
• Should not be examined. There are no exceptions.
• Return fee and Application
In the case of a Spouse and Common-Law Partner in Canada application under the public policy in which the only inadmissibility is that the person is out of status, the bar on concurrent applications does not apply as it is an application under a public policy, not H&C. If the applicant does not meet the requirements of the public policy because of other inadmissibility’s, then the applicant may request H&C consideration and the bar on concurrent applications applies (unless the application was submitted before June 29th 2010).
- Inadmissibility’s for which an exemption may not be requested
• When the H and C application is received on or after 19. JUNE 2013 and the applicant is found indismisable under section A34, A35 or A37
Then the H and C Application.
Should not be examined and shouldn’t be any exceptions
Return fee and application, provided processing has not begun
• When the H and C application is received on or after 19. JUNE 2013
Is suspected to be inadmissible under the section A34 ,A35 or A37 , but a final determination has not been made.
Then the H and C Application
Should be sent to the Bro V security unit for the assessment of the suspected Indismissbilty keep the fees
If the applicant is found indismisable under the section A34 ,A35 or A37 refuse the application
If the applicant is not indismisable examine the H and C Request
- Other restrictions on H&C applications
When an H and C application is received and the person
Is a permanent resident or canadian citizen at the time an application is received
Then the H and C application
• Should NOT be examined. There are no exceptions
• Return fee and application
When an H and C application is received and the person
Became a permanent resident or Canadian citizen after processing of the application has begun.
Then the H and C application
• Should NOT be examined. There are no exceptions
• Send refusal letter and keep the fee.
When an H and C application is received and the person
Is a former PR or Canadian Citizen who has lost their status.
Then the H and C application
Should be examined if lost of status has been confirmed
If loss of status has been confirmed, return the application and fee to the applicant( don’t hold the applicant open while loss of status is examined
- People who have made a refugee claim
If a person has filed a refugee claim in Canada, they may be subject to a bar on access to H&C consideration (both in Canada and overseas). Specifically, a person is barred from accessing H&C if they have
• A refugee claim that is pending before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB)
• Made a claim for refugee protection that was determined to be ineligible to be referred to the RPD, and they have a pending pre-removal risk assessment (PRRA) application
Similarly, if a person has filed a refugee claim with the RPD that was rejected, determined to be abandoned or determined to be withdrawn after substantive evidence has been heard.They are barred from H&C consideration if less than 12 months has passed since the date of the
• RPD decision in cases where there has been no appeal to the Refugee Appeal Division (RAD) or application for leave and judicial review submitted to the Federal Court
• Latest decision in any process in cases where there has been an appeal to the Refugee Appeal Division (RAD) or application for leave and judicial review submitted to the Federal Court
See the following table for further restrictions and exceptions to the bar:
H and C Application scenario:
The applicant has a pending refugee claim
H and C next step:
The application shouldn’t be examined.
The fee and the application are to be returned.
Exceptions:
None
H and C Application scenario:
All of the following apply to the applicant:
They have received a negative decision from the refugee claim RPD.
They have not appealed to the RAD
They have not applied for the leave and judicial review of the decision of the federal court.
H and C next step:
The application should not be examined until 12 months has passed since the date of RPD decision.
The fee and the application are to be returned
Exceptions:
An exception should be applied where removal of the applicant would result in either of the following circumstances:
A risk caused by the life to the inability of the home country to provide adequate medical or health care
An adverse effect of the best interest of a child BIOC directly effected by the removal the child must be under 18 years of age.
H and C Application scenario:
The applicant has received a negative decision on a refugee claim from the RPD and either of the following has taken place:
• An appeal was made at the RAD
• An application was made for leave and judicial review of the decision at the Federal Court
H and C next step:
• Application should not be examined until 12 months have passed since the date of the last rejection (RPD, RAD, leave or judicial review at the Federal Court)
• The fee and application are to be returned
Exceptions:
The fee is to be kept, and the request for an exception is to be examined
H and C Application scenario:
The applicant has abandoned a refugee claim.
H and C next step:
• The application should not be examined until 12 months has passed since the date that the IRB determined the claim to be abandoned.
• The fee and application are to be returned
H and C Application scenario:
The applicant has withdrawn a refugee claim after substantive evidence has been heard.
H and C next step:
• The application should not be examined until 12 months has passed since the date that the IRB determined the claim to be withdrawn.
• The fee and application are to be returned
H and C Application scenario:
The applicant had a claim that was determined to be ineligible to be referred to the RPD and has a PRRA application that is pending.
H and C next step:
• The application should not be examined.
• The fee and application are to be returned.
Exceptions:
• None.
H and C Application scenario:
The applicant has withdrawn a refugee claim before substantive evidence has been heard at their RPD hearing.
H and C next step:
The application should be examined
Exceptions:
None.
This means the applicant has given any evidence on the merits of the case in a hearing before the RPD.
“Substantive evidence has been heard” means the RPD or RAD has started to examine the merits of the claim.
- Calculating the 12-month bar
The 12 month bar takes effect on the day the negative decision is made at the RPD (if there is no appeal and no application for leave and judicial review), including the day the claim is determined to be withdrawn after substantive evidence has been heard or abandoned. In cases where there has been an appeal or an application for leave and judicial review of the decision, the bar takes effect on the date of the latest decision from the RPD, RAD or Federal Court. The bar is in effect until the 1 year anniversary of the decision. - Example: If a refugee claimant received a negative decision from the IRB on February 20, 2018, the 12 month bar would be in effect until February 19, 2019. An H&C application can be examined from this applicant on February 20, 2019.
- Immediate application of the bar
Failed refugee claimants are subject to the 12 month bar unless they qualify for an exception on the basis of either of the following:
Inadequate medical or health care in the country of origin leading to a risk to life upon removal
best interests of a child (BIOC). The bar includes applicants who apply in other categories, including those covered by a public policy, and who also request H&C consideration.
Examples:
A refugee claimant receives a negative decision from the IRB on February 20, 2018. IRCC receives an H&C application is received on July 10, 2018. The H&C application may not be examined, as the bar is in effect until February 20, 2019.
A refugee claimant receives a negative decision from the IRB on February 20, 2018. IRCC receives an H&C application on June 11, 2019. The H&C application may be examined, as the bar is no longer in effect.
Best interest of the child Applies to
• In Canada
• Overseas
A decision on a humanitarian and compassionate (H&C) application must include an assessment of the best interests of any child directly affected by the decision. “Any child directly affected” in this context means a Canadian or foreign-born child (and could include children outside Canada).
The relationship between the applicant and “any child directly affected” need not necessarily be that of parent and child, but could be another relationship that is affected by the decision. For example, a grandparent could be the primary caregiver who is affected by an immigration decision that would in turn affect the child. - It must be sufficiently clear from the material submitted that an application relies in whole, or at least in part, on this factor. An applicant has the burden of justifying the basis of their H&C submission. For some applicants, it can be difficult to express themselves in writing and it may be warranted to invite the applicant to an interview.
If an applicant provides insufficient evidence to support the fact that best interests of a child is a factor, the decision maker may conclude that the grant of the exemption is not justified.
In assessing H&C submissions, the decision makers must be “alert, alive and sensitive” to the best interests of the children (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817) and should bear in mind that “[c]children will rarely, if ever, be deserving of any hardship” (Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555). - As children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61).
The codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case. While factors affecting children should be given substantial weight, the best interests of a child is only one of many important factors that the decision maker needs to consider when making an H&C decision that directly affects a child.
The outcome of a decision under A25(1) that directly affects a child will always depend on the facts of the case. Decision makers must consider all evidence submitted by an applicant in relation to their A25(1) request. The following guidelines are not an exhaustive list of factors relating to children, nor are they necessarily determinative of the decision. Rather, they are meant as a guide and illustrate the types of factors that are often present in A25(1) cases involving the best interests of a child. As stated by Madam Justice McLachlin of the Supreme Court of Canada, “the multitude of factors that may impinge on the child’s best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child’s best interests to expediency and certainty” (Gordon v Goertz, [1996] 2 S.C.R. 27). - Factors to consider:Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to:
- • Thehe age of the child
• Thee level of dependency between the child and the H&C applicant
• Thee 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
• The conditions of that country and the potential impact on the child
• Medical issues or special needs the child may have
• The impact to the child’s education
• Matters related to the child’s gender.
The facts surrounding a decision under A25(1) may sometimes give rise to the issue of whether the decision would place a child directly affected in a situation of risk. This issue of risk may arise regardless of whether the child is a Canadian citizen or foreign-born.
Children 18 years or over
BIOC must be considered when a child is under 18 years of age at the time the application is received. There may be cases in which the situation of older children is relevant and should be taken into consideration in an H&C assessment but if they are not under 18 years of age it is not a best interests of the child case. - Exception: Medical condition posing a risk to life
When an applicant is subject to the 12-month bar and requests an exception due to a medical condition posing a risk to life if the applicant were removed, examine the submissions presented to determine if there is evidence to support the claim that the applicant is suffering from a such a medical condition and that treatment is not available in the applicant’s country of origin. The applicant must demonstrate that removal would lead to an increased risk to life that is real, imminent and foreseeable. Evidence must include both of the following:
documentation from the applicant’s doctor(s) confirming that the applicant has been diagnosed with a medical condition that poses a risk to life, the appropriate treatment, and confirmation that treatment for the condition is vital to the applicant’s survival
confirmation from a reliable source in the country of origin attesting to the fact that an acceptable treatment is not available in the applicant’s country of origin.
Confirmation of the information provided by the applicant may be necessary. See also Inability of a country to provide medical treatment for further information and links to websites detailing medical treatment available in many countries. In exceptional cases, a Manager may contact Medical Services, NHQ to confirm whether a treatment is available in a particular country.
Humanitarian and compassionate assessment: Hardship and the H&C assessment
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
Applies to
• In Canada
• Overseas
As of December 10, 2015, there is no hardship “test” for applicants under subsection 25(1); however the determination of whether there are sufficient grounds to justify granting an H&C request will generally include an assessment of hardship.
Therefore, hardship continues to be an important consideration in determining whether sufficient humanitarian and compassionate considerations exist to justify granting an exemption and/or permanent resident status.
In many cases, hardship will arise as a result of the requirement in section 11 that foreign nationals apply for a permanent resident visa before entering Canada. In other words, a decision maker would consider the extent to which the applicant, given their particular circumstances, would face hardship if they had to leave Canada in order to apply for permanent residence abroad.
Although there will inevitably be some hardship associated with being required to leave Canada, this alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under subsection 25(1) (Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463).
Applicants may also request exemptions from other requirements of the Act and Regulations. In such cases, decision makers would consider the hardship for the applicant if the requested exemption is not granted.
Limitation on assessment of risk in an in-Canada application
Subsection 25(1.3) of the Immigration and Refugee Protection Act states the following: “… the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin.
Subsection 25(1.3) applies only to H&C applications made in Canada.
Factors to consider in a humanitarian and compassionate assessment
Applicants may base their requests for H&C consideration on any relevant factors including, but not limited to
• Establishment in Canada for in-Canada applications;
• Ties to Canada;
• The best interests of any children directly affected by the H&C decision;
• Factors in their country of origin including adverse country conditions;
• Health considerations including inability of a country to provide medical treatment;
• Family violence considerations;
• Consequences of the separation of relatives;
• Inability to leave Canada has led to establishment (in the case of applicants in Canada);
• Ability to establish in Canada for overseas applications;
• Any unique or exceptional circumstances that might merit relief.
Decision makers are not limited to assessing factors submitted by applicants and should consider and weigh all information before them including, for example, the applicant’s immigration history or criminal record.
Additional considerations in overseas processing
In the overseas context, decision makers should also consider the applicant’s circumstances relative to others living in their country when considering whether sufficient H&C grounds exist to justify an exemption. The assessment is not a comparison of life in Canada versus life in the country of origin. It is an assessment of the hardship that would result if the applicant is not granted the exemption or a permanent resident visa.
Adverse country conditions:
When an applicant submits information claiming that there are conditions in the country of origin that would result in hardship if they were not granted the exemption requested, decision makers must consider the conditions in that country and balance these factors into the hardship assessment. Adverse country conditions could include factors having a direct, negative impact on the applicant such as war, natural disasters, unfair treatment of minorities, political instability, lack of employment, widespread violence etc.
The onus is on the applicant to provide information to support the claim of adverse country conditions. In order to assess an application in which adverse country conditions are cited, decision makers should look at the submissions of the applicant and determine whether redress and/or relocation is available.
Assessment of discrimination:
In assessing whether an applicant will be affected by discrimination, discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection 25(1), whether or not the applicant has evidence that they have been personally targeted.
Inability of a country to provide medical treatment
In the case of an application in Canada, if applicants allege they will suffer hardship if returned to their country of origin because of a medical condition, decision makers must be satisfied that the applicant requires the treatment, and that the treatment is not available in the applicant’s country of origin.
The onus is on the applicant to provide both of the following:
• Documentary evidence from the applicant’s doctor(s) confirming the applicant has been diagnosed with the condition, the appropriate treatment, and that treatment for the condition is vital to the applicant’s physical or mental wellbeing;
• Confirmation from the relevant health authorities in the country of origin attesting to the fact that an acceptable treatment is unavailable in the applicant’s country of origin.
In order to substantiate an applicant’s claims, decision makers may access reliable, unbiased internet resources for information on medical care available in the country of origin, for instance
• UK Home Office Country of Origin reports
• World Health Organization
• UNAIDS (for HIV cases)
• International Organization for Migration
Client consent may be required if case specific information is requested from third parties.
Evidence gathered to counter the applicant’s submissions must be disclosed to the applicant and an opportunity for reply provided.
If there are medical services readily available in the country of origin that the applicant could access, consider that fact in the analysis of hardship. The applicant cannot refuse to access those services in order to support a claim for hardship in an H&C application — the hardship must be assessed based on all of the evidence of services available to the applicant.
If the applicant acknowledges that treatment is available but submits that it is at a prohibitively high cost, or that the treatment itself, hospital conditions, availability of medicines, etc., are inadequate or substandard, these factors, if substantiated, should be taken into account and weighed in the balance with the other H&C factors. Positive consideration may still be given in such cases if other positive factors are evident in the applicant’s submissions.
If the decision maker is satisfied that because of a medical condition an applicant would suffer hardship if returned to their country of origin, this and other positive factors (evidence of establishment in Canada, lack of family ties in the country of origin, best interests of the child considerations, etc.) should be weighed against any negative factors, such as the existence of an inadmissibility. When positive consideration may be warranted, but there exists a serious inadmissibility, forward the case to the delegated decision maker for a Stage 1 assessment.
Options for applicant to mitigate hardship
In some situations, it may be appropriate to look at whether an applicant could reduce hardship by seeking redress or by relocating within their country.
The availability of redress and relocation are important, but not necessarily determinative factors in the assessment of hardship. As usual, the assessment of the H&C application focuses on a global assessment of factors presented in the application.
Details of these options are as follows:
Redress
If the decision maker concludes that a claim of hardship is valid, they should consider what avenues for recourse or other forms of prevention or redress exists in the applicant’s country of origin. Aside from a determination of how traditional state bodies like police and courts operate, this may include an investigation of the presence and effectiveness of human rights tribunals, civil society organizations, political parties and other special interest lobby groups or rights activist bodies, as well as a determination of how freely other types of non-governmental organizations, which might have an interest in the applicant’s case, operate within the country.
Relocation:
An applicant for H&C consideration may face hardship in one part of the country of origin, but might reasonably be expected to seek relief at some other place within that country. In such a situation, it may be determined that undue hardship does not exist because the applicant could eliminate the hardship through relocation.
Relocation outside the country of citizenship may also be an option for persons who are citizens of countries that have entered into bilateral or multilateral agreements with neighboring countries and which permit mobility with respect to travel, extended sojourn, employment and study, for example, the Schengen Agreement in the European Union (EU). There are other such regional agreements.
If you are satisfied that the applicant meets the requirements of the medical exception to the one year bar, do a full global assessment of the H&C request.
Humanitarian and compassionate: Medical inadmissibility A38(1)
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
If discovered at Stage 1
A medical inadmissibility must be confirmed through a medical examination before an exemption can be granted to overcome it. If you intend to refuse an application at Stage 1 and a possible medical inadmissibility would not change that decision, the applicant can be refused without a medical examination.
You should request the applicant complete a medical examination at Stage 1 [R30(1)(d)] if either of the following applies:
• The applicant has specifically requested an exemption from inadmissibility requirements related to health (A38) and you believe that the H&C considerations might outweigh the inadmissibility or
• You suspect that the case involves medical inadmissibility and there appear to be compelling H&C considerations.
If a medical inadmissibility is confirmed by Migration Health Branch and granting an exemption might be warranted, do the following:
• Follow the instructions for procedural fairness for immigration officers
• Assess any declarations of ability and willingness
Consult with the provincial health authorities, if deemed necessary. The results of any consultation should be included as part of the referral package for the delegated decision maker. Refer to a delegated decision maker. If a medical inadmissibility is confirmed by Migration Health Branch but you determine an exemption is not warranted, refuse the application.
If discovered at Stage 2
You may either:
- Refuse the application for permanent residence if you determine that there are insufficient H&C grounds to grant an exemption to overcome section A38 or
- Refer it to a delegated decision maker if you believe that the H&C considerations outweigh the health inadmissibility.
Excessive demand on health or social services under paragraph A38(1)(c)
When assessing cases involving paragraph A38(1)(c) refer to Excessive Demand on health and social services and consider the following factors:
• What is the cost of the treatment or care, if available?
• When the health inadmissibility is one that affects health or social services, are there arrangements to cover treatment, care and other costs (e.g. private insurance, family finances, public health coverage, etc.)?
• Is the applicant likely to become self-supporting?
• Is there a risk the person will require public assistance?
• The extent of the applicant’s anticipated need for health or social services in relation to the average demand for these services by Canadian residents?
Quebec cases
An additional procedure must be completed for medically inadmissible applicants residing in the province of Quebec. Approval in principle (i.e. positive Stage 1 assessment) by the delegated decision maker must occur before a Québec Selection Certificate (Certificat de sélection du Québec[CSQ]) is requested from the Ministère de l’Immigration, Diversité et Inclusion (MIDI) (only available in French).
Medical inadmissibility determined before Stage 1 decision
• If there is sufficient H&C considerations, refer to the delegated decision maker. If the decision of the delegated decision maker is positive the referring officer enters the decision in GCMS. The decision reasons from the delegated decision maker must include a statement that the medical waiver is conditional upon the receipt of a letter of non-objection from the MIDI.
At stage 2 processing, request a CSQ and non-objection letter. The stage 1 decision is conditional until a letter of non-objection and a CSQ are issued by the MIDI.
• If a letter of non-objection and a CSQ are issued, then finalize at Stage 2.
• If the MIDI objects and a CSQ is not issued, inform applicant of possibility of admission to another province.
Medical inadmissibility discovered after positive Stage 1 decision
• If there is sufficient H&C considerations, refer to delegated decision maker.
• If the decision of the delegated decision maker is positive, request a non-objection letter from the MIDI even if a CSQ has already been issued (without knowledge of medical inadmissibility). The decision is conditional until a non-objection letter is issued.
• If CSQ and letter of non-objection are issued then finalize Stage 2.
• If the MIDI does not issue a letter of non-objection, inform applicant of possibility of admission to another province.
If the applicant does not meet the requirements for a medical exception from the one year bar send a letter to the applicant saying that the request for an exception to the 12-month bar on H&C consideration has been refused. Do not refund the fees.
8.Exception:
Best interests of the child
When an applicant is subject to the bar and requests an exception because of best interests of the child, examine the application and submissions to determine if the applicant meets the exception to the 12-month bar. Confirm that both of the following apply:
That a child would be personally affected by the removal (specific reasons stated as to why the removal is not in the best interests of the child)
That there is credible evidence that demonstrates that the applicant’s removal would have a direct and adverse impact on a child.
A child under 18 is either the applicant or a dependent of the applicant: The exception applies in cases in which the applicant is a child under 18 years of age or if the applicant is the parent or legal guardian of a child under 18 (either a Canadian citizen or foreign national in Canada or abroad). If that is the case, you will complete a full global assessment of the H&C application.
The final decision must take into account all factors, including a detailed assessment of best interests of the child.
Exception for BIOC requested in other circumstances: If the applicant identifies a child under 18 but the applicant is not the parent or legal guardian or if the applicant is not under 18 years of age, determine if the 12-month bar applies. To do so determine whether the applicant has demonstrated in the submissions that there would be an adverse effect on the best interests of a child directly affected.
If so, make a decision taking into account all factors, including a detailed assessment of best interests of the child.
If the applicant fails to demonstrate that he/she qualifies for an exception to the 12-month bar, send a refusal letter to the applicant. Do not refund the fees.
9.Intake of applications for family members
Spouse or common-law partner in Canada class (SCLPC):
SCLPC applicants who do not satisfy the SCLPC eligibility requirements set out in paragraphs R124(a) and (c)may request H&C consideration. Such applications will be processed under H&C and not as members of the SCLPC class.
Lock-in age for dependent children: The lock-in date for determining the eligibility of dependent children is the date that a completed H&C application is received by IRCC, including correct processing fees. Dependent children must be the appropriate age according to the definition of a dependent child and not a spouse or common-law partner when the application is received.
