Humanitarian and Compassionate Applications

What an H&C actually is

Section 25(1) of the IRPA is the source of the humanitarian and compassionate ("H&C") process. When a foreign national in Canada applies for permanent residence but is inadmissible or falls short of what the Act requires, the Minister is obliged to look at the person's circumstances. For a foreign national outside Canada who applies for a permanent resident visa, the Act says the Minister "may" do so. In either case the Minister then has a choice, not a duty, to grant permanent residence or waive an applicable criterion or obligation. The test is whether the Minister's opinion is that humanitarian and compassionate reasons relating to the person justify doing so, with the interests of any child directly affected weighed in.

Three features follow from the wording:

• Examination is mandatory for requests from inside Canada; approval is never automatic. The Act does not say that any particular set of facts leads to approval.
• It works as an exemption. It exists for people who are inadmissible or fall short of the Act's requirements, which is why it is described as discretionary relief rather than an immigration category.
• Some people cannot use it. Section 25(1) excludes people who are inadmissible under sections 34, 35, 35.1 or 37 (the grounds are security, violating human or international rights, sanctions and organized criminality).

How the H&C decision is framed

The Act does not define "humanitarian and compassionate considerations" and does not set a list of required factors. It names two things only: a child's best interests where a child is directly affected, and, for requests made from inside Canada, the hardships affecting the foreign national (see below).

Courts have written at length about how officers should approach these decisions, and the case law has developed over time. This guide does not summarise particular decisions. Whether a given refusal reflects an outdated or incorrect approach turns on the reasons for the decision and the law at the time, and a lawyer can advise on it.

What an application typically addresses

The Act has no checklist, so the subjects below are common topics, not statutory requirements, and the weight given to any of them is for the decision-maker.

The best interests of a child

The Act names this consideration directly in s. 25(1).

The wording covers "a child directly affected". It does not say that the child must be the applicant, and it does not tie the provision to the child's citizenship. How an officer assesses a child's interests is a matter of case law and of the evidence filed, which is a topic for a lawyer to advise on.

Material that a submission commonly addresses includes the child's age and circumstances, school and health records, and what a change in the family's situation would involve for that child.

Practical points from the Act

• Fees must be paid. Section 25(1.1) makes payment of the applicable fees a condition of the request being before the Minister.
• Only one request may be pending. Under section 25(1.2)(a), a second request cannot be examined while an earlier one is still pending.
• A pending refugee claim blocks it. Section 25(1.2)(b) prevents examination while a refugee claim is still before either of the two refugee divisions (the RPD or the RAD).
• A 12-month bar can follow a refused claim. Under section 25(1.2)(c), a request cannot be examined until 12 months have passed from the rejection, withdrawal or abandonment of the refugee claim (or from the latest of the refugee-division and Federal Court steps, where there was an appeal or court application); a withdrawal counts only if it was determined to be a withdrawal after substantive evidence was heard. Under section 25(1.21), that bar does not apply where removal would put the person at risk to life because adequate health or medical care is not available, or where removal would have an adverse effect on a child who is directly affected.
• Designated foreign nationals face a separate restriction. Section 25(1.01) restricts requests by a designated foreign national for a period of five years in the circumstances it describes.
• Making the request does not itself stay removal. Section 25 contains no stay. Section 233 of the Immigration and Refugee Protection Regulations (IRPR) provides a stay of a removal order only where the Minister forms the view that one is warranted on H&C or public policy grounds, and it lasts until the decision on permanent residence is made. Other stay routes are covered in the guide on stay options.
• Processing time is not set by section 25. Current processing times should be confirmed with Immigration, Refugees and Citizenship Canada.

If it is refused

Judicial review by the Federal Court is the review process the Act provides for decisions made under it. Under s. 72(1), the process begins with an application for leave. Section 72(2)(b) sets a 15-day window for a matter arising in Canada, running from when the person is told of the decision or otherwise learns of it, and s. 72(2)(c) allows a judge to extend the time where there are "special reasons". The steps are explained in the guide to reviewing an IRCC decision in Federal Court.

Whether a particular refusal can be challenged depends on the reasons given and the evidence that was before the officer, and the 15-day period means this should be confirmed with a lawyer without delay.