Catherine Sas, K.C.Many people are aware of the humanitarian and compassionate (H and C) application process for permanent residence to Canada which people can turn to when they are not able to access any other type of immigration application and when they can demonstrate compelling personal circumstances. H and C applications can be made from within Canada as well as from outside of Canada. However, the H and C statutory provisions exclude certain applicants, specifically persons found to be inadmissible to Canada pursuant to ss. 34, 35 and 37 of the Immigration and Refugee Protection Act (IRPA) on security grounds. If you have been found inadmissible to Canada on one of these grounds what are your possible options to overcome such a finding and either remain in or come to Canada?
The process for overcoming an inadmissibility finding pursuant to ss. 34, 35 and 37 of IRPA is called an application for Ministerial Relief. S. 42(1) provides that a person can make an application for Ministerial Relief, which is a declaration from the Minister of Public Safety and Emergency Preparedness (the Minister) that the matters that gave rise to their determination do not constitute inadmissibility in the circumstances of their case.
However, persons found to be inadmissible pursuant to s. 35(1)(a) of IRPA for commission of or complicity in genocide, war crimes or crimes against humanity, are precluded from making an application for Ministerial Relief.
As of March 10, 2017, there is a statutory framework for making such an application and a formal process including an application form. To learn more about this application process please see the link: https://www.cbsa-asfc.gc.ca/travel-voyage/gadr-gddd-eng.html#a1. As mentioned above, a Ministerial Relief application can be made by persons both inside and outside of Canada, similar to the H and C application process. Once an application is received it will be assessed for being both eligible and complete and put in the queue for assessment based upon the year of receipt. The Ministerial Relief Unit (MRU) of CBSA will review the application and submissions and make a “recommendation” to the Minister. CBSA’s recommendation will be provided to the applicant prior to being sent to the Minister. This will allow the applicant (and their counsel) to respond to any concerns and provide further documentation and submissions in support of the application before going to the Minister for determination.
A Ministerial Relief application can only be determined by the Minister – it can not be delegated to an officer. Given that only the Minster can make the final decision, application processing times tend to be very lengthy. Recent statistics as of October 21, 2022 indicate processing times as fast as 2 years and as lengthy as 22 years with an inventory of over 300 cases. Processing times of 7 – 10 years for Ministerial Relief applications are common.
As an immigration lawyer practicing for over 30 years, I have made numerous H and C applications. I have yet to make a Ministerial Relief application. While the criteria for both applications are distinct, they are also quite similar as can be seen by the information in the Guide for applying for Ministerial Relief. As in all immigration applications, an individual can make an application on their own. However, given the complexity of the process and the seriousness of the matter that an applicant is seeking to overcome, it is recommended that you engage the services of an experienced immigration professional to assist you with an application for Ministerial Relief.
