BlogWinning immigration on humanitarian and compassionate grounds

28 January 2020

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For the past two years I have delivered a presentation in December on the most interesting and influential immigration court decisions released during the calendar year. Preparing for these presentations has given me the opportunity to look at general trends in immigration cases rather than focus on specific issues for my clients as a Vancouver immigration lawyer. One of the things that became clear to me in reviewing these decisions is that a significant number of the cases that go to court are about humanitarian and compassionate (“H&C”) applications for permanent residence, even though H&C applicants represent only a small fraction of the more than 300,000 new permanent residents that are approved each year. H&C applications are difficult to win and anyone applying for permanent residence on this basis needs to be aware of this.

H&C applications have been described by our courts as an “exceptional” remedy, which allows immigration officers to grant permanent residence in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another.” When someone applies for permanent residence on H&C grounds they are asking to be granted permanent resident status even though they don’t meet the requirements as set out in the law. This may be because they have a criminal record, because they have been living in Canada as de facto residents and may even have spouses and children in Canada, or because they have sick family members, just to name a few examples. Due to the discretionary nature of H&C applications, they are not intended to be an alternative immigration scheme. In other words, these applications are not meant to be made by people who have other means of applying for permanent resident status.

For example, Canadian citizens and permanent residents can sponsor their parents for permanent residence to join them in Canada if they meet certain income requirements. However, Immigration, Refugees and Citizenship Canada (“IRCC”) sets a yearly cap on the number of sponsorship applications they will receive each year, which means that the majority of people who want to sponsor their parents will not be able to as they will not meet the cutoff. These circumstances alone do not justify the approval of an H&C application. Remember that H&C applications are not meant to be an alternative immigration scheme that will allow you to apply for permanent residence ahead of the many other thousands of people who did not get a chance to sponsor their parents. You also must consider that there may be alternatives such as IRCC’s Super Visa program that can help you achieve the same goals of being together in Canada without applying for permanent residence.

Another important reason that many H&C applications are refused is because there is a common misunderstanding that just spending many years living in Canada will lead to permanent residence. Most of the successful H&C cases I have seen are made by people who have not only lived in Canada for a long time but have become integral parts of their communities. To succeed in an H&C application, an applicant should show that Canada is better with them than without them. This requires significant evidence to show that a person is established in Canada, perhaps because they have spouses or children in Canada, or because of their significant contributions through their employment and volunteer work, and that not only the applicant, but other Canadians, would be harmed if they had to leave Canada.

Lastly, many people do not appreciate that it can take years for an H&C application to be processed and that making an H&C application does not mean that they can stay in Canada indefinitely until the case is decided. I have seen many cases where applicants make an H&C application and do not update IRCC with new and relevant information even if many months or even years have passed. I have also seen cases where applicants procrastinate and file their applications far too late before immigration officials try to remove them from Canada, which can occur in cases where the applicant has been in Canada without status for many years.

H&C applications should be made after careful consideration of an applicant’s personal circumstances and an assessment of other viable immigration strategies. To succeed, applicants should be prepared to present significant evidence of the positive contributions they bring to Canada and to do this early and often. In some ways, H&C applications are among the most difficult of immigration applications to make because there are no set guidelines on the type of evidence that will convince an immigration officer to grant the exceptional remedy of H&C relief. As such, applicants should not hesitate to reach out to friends and family or authorized immigration representatives for assistance.

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About the Author